Ex Parte Mussett

• Decision Date: 10 December 1913
• Citation: 162 S.W. 846
• Parties: Ex parte MUSSETT.
• Court: Texas Court of Criminal Appeals

162 S.W. 846

Ex parte MUSSETT.

Court of Criminal Appeals of Texas.

December 10, 1913.

Rehearing Denied January 14, 1914.

Original application by Charles Mussett for writ of habeas corpus. Application refused.

Baskin, Dodge & Eastus and John W. Wray, all of Ft. Forth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

This is an original application for habeas corpus, and is a companion case to that of Ex parte Andrew Zuccaro, 162 S. W. 844, this day decided. In that case the facts are so fully stated we do not deem it necessary to detail them here. It will be sufficient to state that on January 27, 1912, the county attorney brought suit to enjoin certain theaters and moving picture shows from opening and showing on Sunday; that the district judge to whom same was presented, Hon. W. T. Simmons, judge of the Sixty-Seventh district, deemed the allegations in the petition sufficient, and entered the following order: "Petition granted and clerk of the district court of Tarrant county is directed to issue and direct to each and every defendant named in this petition an order enjoining, restraining, and prohibiting them, and each of them, from opening or permitting to be open their theaters and moving picture shows, respectively, on Sunday for public amusement, from giving therein any performances for public amusement, and from charging a fee for admission thereto, or from doing any of said acts until the further order of this court. This cause is set down for hearing Saturday, February 3, 1912, at 2 o'clock p. m., and clerk directed to issue notice hereof to defendants and each of them." The record shows this notice was issued and served; that the defendants in that suit never appeared at said time, nor have they ever filed a motion to dissolve the temporary injunction, nor any answer in the case, and no further steps have ever been taken in the case until upon information filed this relator and Mr. Zuccaro were cited to appear and show cause why they should not be held in contempt of court for violating this injunction.

Relator's able counsel admit the shows were opened on Sunday, but say that the district court of Tarrant county was without authority or jurisdiction to order the injunction to issue, and the order was therefore a nullity; that if mistaken in this, temporary injunction was not a continuing order, and when hearing was set on February 3d, and no hearing had, it was vacated and no longer in force. On these two issues, and these two alone, relator's counsel contended they were entitled to have us issue the writ of habeas corpus and discharge them on final hearing. The state was also ably represented on the hearing, and contended that the district court did have the authority, power, and jurisdiction to issue the writ, and its order was not void; that the temporary injunction issued was a continuing one, and remains in force until vacated by order of the court granting it.

Without entering into a discussion of the merits of these two propositions, we are met at the threshold with the grave proposition, even if relator is entitled to relief, to which court should the application for a writ of habeas corpus be presented—to this court or the Supreme Court? They are both courts of final jurisdiction, in matters in which they have any jurisdiction, and from the action of either no appeal will lie. If we assume jurisdiction, and order the writ to issue, it should be a finality whatever order we might make, and if the Supreme Court should entertain jurisdiction and order the writ to issue, likewise its orders should be a final disposition of the matter. 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, this court entertained jurisdiction in this character of case and held that the district court, under a statute specifically authorizing it, had authority to enjoin persons from operating gaming houses. This opinion was rendered November 15, 1905. Mr. Allison, not being satisfied with the decision of this court when rendered, sued out a second writ, which was granted by the Supreme Court, and their opinion was handed down February 1, 1906. Ex parte Allison, 99 Tex. 455, 90 S. W. 870, 2 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 653. It is thus seen that both this court and the Supreme Court have entertained jurisdiction and issued the writ of habeas corpus in this character of case, and in that case the Supreme Court and this court both issued a writ in the same case and passed on the same facts, and both upheld the law. Had they not arrived at the same conclusion, there would have occurred one of those conflicts that in the past have marred the jurisprudence of our state. This condition should be avoided whenever it is in the power of the courts to do so, and either this court's order or the order of the Supreme Court should be a finality.

Our whole judicial system is built upon the principle that the Supreme Court should have final and absolute jurisdiction in all civil cases, and this court should have final and absolute jurisdiction in all criminal cases, and if this true dividing line be at all times kept in mind, we do not think that a conflict in jurisdiction, nor in the opinions of the courts, can or should arise again. Without passing on the question whether or not we have the authority under the Constitution to issue the writ, we go to the question, Is it the...