Ex Parte Roper

• Decision Date: 07 December 1910
• Court: Texas Court of Criminal Appeals
• Parties: Ex parte ROPER.

134 S.W. 334

Ex parte ROPER.

Court of Criminal Appeals of Texas.

December 7, 1910.

On Motion for Rehearing, February 8, 1911.

Original application for writ of habeas corpus by Ward Roper for his discharge from custody under a commitment issued in contempt proceedings against him. Relator remanded to custody.

Odell & Johnson, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

RAMSEY, J.

On October 29th of this year an application for writ of habeas corpus was presented to Judge McCORD of this court, was by him granted, and the case set down for submission before the full bench on November 9th of the present year.

The application is based on a number of grounds, all of which will be hereafter noticed. It appears in the record: That about the 17th day of December, 1909, the county attorney of Johnson county made application to Hon. O. L. Lockett, judge of the Eighteenth judicial district, alleging, in substance, that Ward Roper and R. B. Roper, who are alleged to be partners, had made application, through relator, Ward Roper, to secure a license to engage in the sale of liquor on prescription. At this time local option was in effect in Johnson county, and had been for some years. That subsequent to this and a short time before the filing of the petition for injunction relator had violated the provisions of said license, and had made sales of whisky to certain persons named in the petition. After setting all of these matters out in great detail, the petition contains the following averment: "Plaintiff would further aver that R. B. Roper and Ward Roper, doing business as druggists in the place above mentioned, have under the pretense of selling and dispensing intoxicating liquors on a prescription in said Johnson county, Tex., where the unlawful sale of intoxicating liquors has been prohibited by law since the 19th day of June, 1904, and up to the filing of this petition, sold said intoxicating liquors in violation of the law, as above mentioned, and have thereby become the creators and promoters of a common and public nuisance that ought and should be abated." The petition prays, therefore, for a writ of injunction to issue restraining relator and R. B. Roper, or either of them, their agents, servants, employés, and assigns from selling or permitting to be sold, or kept for the purpose of unlawful sale, any intoxicating liquors in their said place of business situated in Cleburne, Johnson county, Tex., as above mentioned, and from creating and promoting a common and public nuisance at their place of business. In his fiat indorsed on said petition on the 17th day of December the district judge directed the issuance of a writ of injunction as prayed for. The injunction, which was in fact issued, goes rather beyond the terms of the petition, and is to this effect: "You, your agents, and employés, are hereby commanded to restrain and desist from in any manner or way selling intoxicating liquors in any place in Johnson county, Tex., and from establishing, maintaining, or conducting in any place in said county where intoxicating liquors are sold, stored, kept, or drank, and from permitting the same to be sold, stored, kept, or drank in any place controlled by you, your agents in said county, until the further order of said district court." In the answer of relator, which included a number of matters as grounds of resisting the attempted imprisonment, it is alleged as a matter of fact by relator Ward Roper that he had no financial interest in the business which he says was conducted by his son R. B. Roper. He admits in this answer that he had obtained the license from the state, as well as the federal license, on account of the fact that his son, R. B. Roper, was then a minor, and presumably unable to obtain same, and that he took it out for his son. It is shown further in the testimony of relator that he rented the building in which was conducted the business, but claims that this was for his son. The answer was not sworn to. The petition charges a partnership between R. B. Roper and Ward Roper. In the absence of any denial of partnership, the court is authorized to assume its existence. Besides if such inquiry could be permitted, there is evidence in the record sufficient to show relator's connection with the business. On hearing, the court found relator guilty of a violation of the injunction, and assessed a fine against him of $100, and adjudged that he be confined in the county jail for two days.

1. Among other grounds of relief, it is urged that the district court has no authority to issue an injunction under conditions as disclosed in this record, for the reason that, in substance, it is an attempt to prevent the commission of crime by an injunction, and that this is not permitted or sanctioned by law. Almost this precise question came before 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. The injunction in that case was issued by Hon. O. L. Lockett, restraining Allison from the use of certain premises as a gaming house. Passing on this question, Judge Henderson, speaking for the court, says: "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. 413 [50 S. W. 933, 76 Am. St. Rep. 724]. However, the respondent insists that the grant 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. 413, 50 S. W. 933, 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, 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 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...