Ex Parte Allison

• Decision Date: 01 February 1906
• Citation: 90 S.W. 870
• Parties: Ex parte ALLISON.
• Court: Texas Supreme Court

90 S.W. 870

Ex parte ALLISON.

Supreme Court of Texas.

February 1, 1906.

Habeas corpus on relation of R. J. Allison. Writ denied.

Sluder & Neal and N. B. Williams, for relator. Wm Caldwell, Claude Pollard, R. V. Davidson, Atty. Gen., W. L. Eason, and Minor Moore, for respondent.

GAINES, C. J.

This is a petition for the writ of habeas corpus, by which the relator seeks to have himself enlarged from the custody of the sheriff of McLennan county and restored to his liberty. It appears from the pleadings and exhibits in this court that one Minor Moore, a citizen of McLennan county, obtained from the judge of the Eighteenth judicial district a temporary writ of injunction against the relator, restraining him from the use of certain premises in the city of Waco for the purposes of gaming or of keeping and exhibiting games prohibited by law. By order of the judge granting the writ the petition was returned to one of the district courts of McLennan county and filed with the clerk thereof. Upon the final hearing in the latter court the injunction was made perpetual. Upon an affidavit filed by the plaintiff in the suit alleging that respondent had violated the injunction he was attached for contempt and upon the hearing was adjudged guilty and fined $100. Upon default of payment of the fine he was placed in the custody of the sheriff of the county, the respondent in the present suit.

The statute under which the original proceeding was instituted was passed by the regular session of the present Legislature, and we quote so much of it as we deem necessary for the purposes of this opinion:

"Section 1. The habitual use, actual, threatened, or contemplated use of any premises, place, building, or part thereof, for the purpose of gaming or of keeping or of exhibiting games prohibited by the laws of this state shall be enjoined at the suit either of the state or of any citizen thereof. Any person who may so use or who may be about to use or who may aid or abet any other person in the use of any premises, place or building, or part thereof, may be made a party defendant in such suit.

"Sec. 2. * * * And provided further, that nothing in the above proviso contained shall prevent such injunction from issuing at the suit of any citizen of this state who may sue in his own name, and such citizen shall not be required to show that he is personally injured by the acts complained of." Acts 1905 (29th Leg.) p. 372, c. 153.

The validity of this statute is assailed by counsel for the relator upon several grounds; but we are of the opinion that none of them are well taken. The first question in logical order, as we think, is whether the caption of the act is sufficiently full to meet the requirements of section 35 of article 3 of our Constitution. The title in question is as follows: "An act to prevent by means of the writ of injunction at the suit of the state or any citizen thereof the habitual use, actual, contemplated or threatened, of any premises, place, building or part thereof, for the purpose of gaming or of keeping or exhibiting games prohibited by the laws of this state." This title in our opinion very clearly and fully expresses the one subject of the act, and is therefore sufficient in that respect to sustain the statute.

It is also insisted on behalf of the relator that the Legislature has no power to confer upon the courts the authority to enjoin the commission of crime or the establishment or continuance of a public nuisance. The Legislature, when not restrained by the Constitution of the state or of that of the United States, has the power to make law and to provide remedies for its enforcement. We find no express provision in either of these instruments which prohibits the lawmaking power from either extending or abridging equitable remedies. The main argument against the power the Legislature has attempted to exercise by the passage of the act in question is that it deprives the defendant in the action of the right of trial by jury, and therefore violates the provision of our Bill of Rights which declares that "the right of trial by jury shall remain inviolate." This may present a serious difficulty in those jurisdictions in which, as at common law, legal and equitable remedies were kept distinct and administered in separate courts. In courts of law the parties are entitled to have the issues of fact determined by a jury, which is not the case in a court of equity. Hence it might be that in such jurisdictions a statute which attempted to confer upon a court of equity the power to try a cause which was previously cognizable in a court of law would be held obnoxious to the objection that it deprived the parties of the right of trial by jury. But under our system, in which law and equity are blended and the right of trial by jury exists, whether the remedy be legal or equitable, the difficulty vanishes. Before the injunction could be made perpetual under the statute in question it is the right of the defendant to have the jury pass upon the facts. It is true that in case of a violation of the injunction there is in the contempt proceedings no trial by jury; but no such right exists at common law in proceedings for contempt. Hence that does not contravene the provision which declares that "the right of trial by jury shall remain inviolate." That provision merely protects the right as it existed at the time the Constitution went into effect.

Nor do we think that the act in question infringes that provision of the Bill of Rights which declares that "no person for the same offense, shall be twice put in jeopardy of life or liberty." It is true that, if he commits the act which he is...