Ex Parte Allison

Citation90 S.W. 492
PartiesEx parte ALLISON.
Decision Date15 November 1905
CourtTexas Court of Criminal Appeals

N. B. Williams and Sluder & Neal, for applicant. W. L. Eason, Minor Moore, and Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

This is an original proceeding on habeas corpus. It appears from the record that on the application of Minor Moore an injunction was granted on August 5, 1905, by Hon. O. L. Lockett, judge of the Eighteenth judicial district, restraining R. J. Allison from the use of certain premises in the city of Waco as a gaming house. The writ was issued and made returnable before Hon. Marshall Surrat, judge of the Nineteenth judicial district. Motion to dissolve was made, and the trial was had before Judge Surrat, who made the injunction permanent. Thereafter relator Allison was arrested, and brought before said judge in a certain contempt proceeding on an alleged violation of said injunction. The court on the hearing adjudged relator guilty of contempt, and by the judgment of the court a fine of $100 and three days' imprisonment in the county jail was imposed. On account of this judgment, relator sued out the writ of habeas corpus before this court.

Inasmuch as the question here involved will bring in review the validity of the recent act of the Twenty-Ninth Legislature (see Gen. Laws 29th Leg. p. 372, c. 153), we will quote so much thereof as we may deem necessary:

"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.

"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 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. The Attorney General and the several district and county attorneys shall institute and prosecute all suits that said Attorney General or such district or county attorney may deem necessary to enjoin such use; provided, that such suit may be brought and prosecuted by any one of said officers; 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.

"Sec. 3. The procedure in all cases brought hereunder shall be the same as in other suits for injunction, as near as may be," etc.

Relator contends, in the first place, that the district court did not have jurisdiction to grant said injunction, and consequently that the same was void and of no effect. Undoubtedly under our Constitution and laws the district court did have jurisdiction to grant the injunction in this case. Anderson v. Kennedy, 58 Tex. 616. However, the contention is that under the amendment of the Constitution relating to county courts that tribunal has jurisdiction of injunctions where the amount in controversy is within the jurisdiction of the county court. The contention here is that the operation of a gambling house under our law is a misdemeanor, and within the jurisdiction of the county court, and that consequently the county court has jurisdiction of an injunction in regard to the keeping of gambling houses. It does not occur to us that this by any means follows. Even if it be conceded that the county court had jurisdiction to grant the injunction, this jurisdiction was merely concurrent, and did not oust the jurisdiction of the district court, which is authorized to grant injunctions generally. The very fact that no amount involved is stated in the application for injunction would suggest jurisdiction in the district, and not the county, court. If some amount within the jurisdiction of the county court had been stated, then it may be conceded that the county court would have had at least concurrent jurisdiction. We do not believe there is anything in this contention.

It is urgently insisted by relator that the injunction granted was without authority of law, because it was an attempt on the part of the court to enjoin the commission of a criminal offense. This contention may be conceded as a general proposition. State v. Patterson, 14 Tex. Civ. App. 465, 37 S. W. 478; Ex parte Warfield, 40 Tex. Cr. R. 420, 50 S. W. 933, 76 Am. St. Rep. 724. However, the respondent insists that the granting of the injunction in this case was not an attempt to enjoin the commission of a criminal offense, but was an injunction granted against the use of property, the using thereof constituting it a nuisance; and, furthermore, respondent urges that, notwithstanding, under the English system of equity jurisprudence which has come down to us, that courts will not enjoin the commission of crime as crime, yet it is entirely competent for the Legislature to create other matters the subject of equitable cognizance than those recognized under the general system of equity.

With regard to the first proposition, we believe it will be conceded that, where property rights are involved, courts will issue injunctions, notwithstanding it may embrace a crime; or, if it should not be so conceded, we believe, on principle and authority, that this proposition cannot be gainsaid. It will be noted that the act in question is aimed at the restraining of persons from using certain premises or buildings for the purpose of gaming, or of keeping or exhibiting games prohibited by the laws of this state, and does not seek to punish such persons for so using said premises or buildings. As was said in Warfield's Case, 40 Tex. Cr. R. 420, 50 S. W. 934, 76 Am. St. Rep. 724: "An injunction is a mere restraining order, and it will be presumed that the party against whom it is granted will obey it as long as it continues in force; otherwise, if he does not regard it, as the issuance of the writ is a proper exercise of equity, he will move to dissolve it." A gambling house, under our statute, and as recognized by our courts, is a nuisance, and even at common law, as we understand it, such a nuisance could be enjoined at the instance of any one who was injured thereby. Our statute enlarges this right and assumes that any person within the jurisdiction is injured, and that he can make complaint and have the restraining order issued. State v. Patterson, supra, relied on by relator, recognizes the rule that a gambling house is a nuisance and can be abated, and that the writ will lie when property or civil rights are involved, and some irreparable injury to such rights is threatened or about to be committed for which no adequate remedy exists at law. It is said, further: "The injury threatened to such rights may, if committed, constitute a crime and subject its perpetrator to punishment under the criminal law, yet, as his punishment would furnish him whose property or civil rights had been irreparably injured by the acts constituting the offense no compensation for such injury, courts of equity will interfere to prevent such an injury, notwithstanding the commission would constitute a criminal offense, not because it would be a crime, but because the injury to such rights would be irreparable. It cannot be said that such interference by a court of equity is an invasion into the domain of criminal law, for no crime has been committed where equity interposes its arm for the protection of property or civil rights. In extending such protection, it may prevent a crime; but, as no one has a right to commit crime, no one should be heard to complain that he is restrained from its commission, when such restraint has been exercised in the jurisdiction of a court for the purpose of preventing him from irreparably injuring another in his property or civil rights." The court in that case even recognizes the right of the state, through her proper officers, to enjoin a public nuisance, but that the state must show in such case that the nuisance is an injury to the property or civil rights of the public at large. It was there held that the state did not show such injury to property or civil rights of the public, and that consequently it presented a criminal case, pure and simple, and an injunction would not lie. This case was decided before the act of the Legislature upon which the injunction at bar was granted was passed. The act in question was evidently passed to meet the defects pointed out by the court. Here it is provided that such injunction may issue at the instance of any citizen of the state who is authorized to sue in his own name; and that such person shall not be required to show that he is personally injured by the acts complained of. Now, if the Legislature was lawfully authorized to make the provisions in the law, as above pointed out, no one can question the legality of the writ of injunction; and it lies with those challenging the power of the Legislature to point out that provision of the Constitution inhibiting the Legislature from passing such an act. And see Carleton v. Rugg (Mass.) 22 N. E. 55, 5 L. R. A. 193, 14 Am. St. Rep. 446, and, for authorities, Amer. & Eng. Ency. of Law, vol. 11, pp. 195-197. It must be presumed that the Legislature recognized that the use of such property for gaming purposes was injurious to the public welfare and morals of the community; and under its police power it had the right to enjoin such use.

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26 cases
  • State v. Clark
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 15, 1915
    ...or authority to grant such writs in criminal cases. It is true that this court, in the case of Ex parte Allison, 48 Tex. Cr. R. 634 [90 S. W. 492, 3 L. R. A. (N. S.) 622, 13 Ann. Cas. 684], in a matter practically exactly like this, granted and heard a writ of habeas corpus and decided it N......
  • Ex Parte Bradshaw
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • April 16, 1913
    ...Cas. 1913B, 32. The Wade v. Nunnelly decision is in conformity with the writer's dissent in Ex parte Allison, 48 Tex. Cr. R. at page 641, 90 S. W. 492, 3 L. R. A. (N. S.) 622, 13 Ann. Cas. 684. See dissenting opinions in the Ex parte Allison Case, supra, and Ex parte Roper, 61 Tex. Cr. R. 6......
  • Southern Traffic Bureau v. Thompson, 12109
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • June 21, 1950
    ...person may protect himself by injunction. See also, Ex parte Hughes, 133 Tex. 505, 129 S.W.2d 270; Ex parte Allison, 48 Tex.Cr.R. 634, 90 S.W. 492, 13 Ann.Cas. 684, 3 L.R.A.,N.S., 622; Ramon v. Saenz, Tex.Civ.App., 122 S.W. 928; Featherstone v. Independent Service Station Ass'n of Texas, Te......
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    • Court of Appeals of Texas
    • December 6, 1924
    ...Ex parte Allison, 99 Tex. 455, 90 S. W. 870, 2 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 653; Ex parte Allison, 48 Tex. Cr. R. 634, 90 S. W. 492, 3 L. R. A. (N. S.) 622, 13 Ann. Cas. 684; Clopton v. State (Tex. Civ. App.) 105 S. W. 994; Burckell v. State, 47 Tex. Civ. App. 393, 106 S. W. 190;......
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