Ex Parte Dupree

• Decision Date: 27 November 1907
• Parties: Ex parte DUPREE.
• Court: Texas Supreme Court

105 S.W. 493

Ex parte DUPREE.

Supreme Court of Texas.

November 27, 1907.

Habeas corpus on petition of Milt Dupree to obtain his release from the custody of the sheriff of Brown county. Relator remanded.

Harrison & Wayman, for relator. R. V. Davidson, Atty. Gen., Jas. D. Walthall, Asst. Atty. Gen., and I. J. Rice, for respondents.

BROWN, J.

On the 15th day of September, 1906, an election was held in Brown county to determine whether or not the sale of intoxicating liquors should be prohibited in that county, which resulted in the prohibition of such sale. On May 18, 1907, R. L. McGaugh, county attorney of Brown county, filed in the district court of that county a petition in the name of the state of Texas against Milt Dupree, wherein all necessary allegations were made to show the vote of the county upon the question of prohibiting the sale of the liquors and the publication of the result, whereby local option was put in force in said county, and, having given the names of all the defendants in that suit, including the relator, the said petition alleged: "That defendants are actually using the following described place, rooms, premises, and buildings situated in the city of Brownwood, in Brown county, Texas, and more particularly described as follows, to wit: * * *—for the purpose of selling intoxicating liquors in violation of law, and in which to keep, store and deposit intoxicating liquor for the purpose of being sold in violation of law, and that they are in possession of, and have under their control and management at such place, intoxicating liquor for the purpose of and with the intention of selling such liquor in violation of law. Wherefore the state of Texas prays the court for a writ of injunction restraining and prohibiting defendants, Milt Dupree, Bart Carnes, John Byrd, and Jap Counts, their agents and employés, from using said hereinbefore described place, room, premises, and building for the purpose of selling intoxicating liquor in violation of law, or to keep, store, or deposit intoxicating liquor for the purpose of being sold in violation of law, and that citation issue hereon as the law directs, and that upon final hearing said injunction be in all things perpetuated and made final, and for such other and further relief, both general and special, as your petitioners may be entitled to by reason of the premises. * * * The clerk of the district court of Brown county, Texas, is hereby ordered to file this petition and to issue a writ of injunction prohibiting and restraining Milt Dupree, Bart Carnes, John Byrd, and Jap Counts, the defendants therein named, their agents and employés, from using the premises in said petition described for the purpose of selling intoxicating liquors in violation of law, or in which to keep, store, or deposit intoxicating liquors for the purpose of being sold in violation of law. Witness my hand at Brady, Texas, this the 8th day of May, 1907. John W. Goodwin, Judge 35th Judicial District of Texas."

The petition prayed for an injunction to restrain the said defendants named therein, including the relator, from violating the law, which prohibited the sale of intoxicating liquors in that county. The petition contained all of the necessary allegations for presenting the matter properly to the court, and the district judge, the Honorable John W. Goodwin, indorsed on the petition the following order, in substance, directing the clerk of the district court of Brown county to issue the writ of injunction as prayed for, prohibiting the relator and others, their employés, agents, etc., from using the premises in the petition described for the purpose of selling intoxicating liquors in violation of law, etc. The writ of injunction was duly issued on the 10th day of May, 1907, which was in due form, specifying particularly the things which were commanded to be abstained from by the relator and others, and describing the premises minutely. The writ of injunction was served by the sheriff of Brown county on the 11th day of May, 1907. On the 17th day of October, 1907, the county attorney, R. L. McGaugh, of Brown county, under oath filed an application in the district court in the said cause wherein he charged the relator and others with violation of the provisions and mandates of the said writ of injunction, specifically stating the dates and character of each violation, upon which petition the Honorable John W. Goodwin, district judge of said district, made an order whereby he directed the clerk of the district court to issue to the said relator and others a summons to appear before him at a time and place stated in the summons, then and there to show cause why they should not be adjudged guilty of contempt and punished for the violation of the mandates of the injunction theretofore issued. The summons was duly served upon the defendants, and their counsel appeared and filed a motion to quash the affidavit by which they were charged with the violation of the injunction for the reasons: "Because the petition for said injunction was never verified or sworn to by any person, and, if the act of the Legislature upon which this proceeding is predicated can be held to authorize injunction on such a petition, that said act is unconstitutional and void for this: that it, and the proceedings had in this case upon said law and the unsworn petition filed in this case, and the affidavit charging defendant with having disobeyed the injunction issued on said petition for injunction, have the effect to, and do, authorize the seizure of defendant's person, and his arrest and detention, without any showing of probable cause therefor, under oath or affirmation, as is required by section 9 of the Bill of Rights in the Constitution of the state of Texas."

The relator filed a very lengthy answer, in which he set up as causes why he should not be punished or adjudged guilty of contempt that the court had no jurisdiction to issue the writ of injunction because the act of April 5, 1907, under which the injunction was issued, is unconstitutional, and because the act was intended to be operative in each county, city, town, village, etc., wherein the vote had been taken to prohibit the sale of intoxicating liquors prior to the enactment of said law, and the Legislature had no power to enact the law applicable to those counties, etc., which had taken a vote prior to the enactment of that law; that the said act of the...