Fearis v. Gafford

• Decision Date: 29 June 1918
• Docket Number: (No. 7600.)
• Citation: 204 S.W. 675
• Parties: FEARIS v. GAFFORD, Co. Atty., et al.
• Court: Texas Court of Appeals

204 S.W. 675

FEARIS v. GAFFORD, Co. Atty., et al.

(No. 7600.)

Court of Civil Appeals of Texas. Dallas.

June 29, 1918.

Appeal from District Court, Grayson County; W. M. Peck, Judge.

Suit by Dave Fearis against B. F. Gafford, as County Attorney of Grayson County, and others. Decree for defendants, and plaintiff appeals. Reversed, and injunction granted.

Jones & Hassell, of Sherman, for appellant. Gafford & Cummins, of Sherman, for appellees.

TALBOT, J.

The judgment in this case, at a former term of this court, was reversed and the cause remanded to the district court with instructions that the writ of injunction as prayed for be granted. Later we set aside our judgment reversing and remanding the cause for the reason that we were in doubt as to the correctness of our holding that appellant, under the facts alleged, could invoke the aid of a court of equity for the relief sought. This question was then before the Supreme Court for decision, and we have not sooner passed upon it ourselves because we have been hoping, since it is contended that no decided case in this state is applicable, for a decision of the question by our court of last resort.

The suit was instituted by appellant to restrain by injunction the appellees, B. F. Gafford, county attorney of Grayson county, H. H. Cummins, assistant county attorney of said county, and Lee Simmons, sheriff of said county, from interfering with appellant in the conduct and operation of a pool hall in the city of Sherman. The injunction was refused, and appellant appealed.

The petition alleges, in substance, that appellant was the owner of a pool hall, pool tables, pool and billiard balls, billiard cues, racks, chairs, etc., located in the Caruthers building in the city of Sherman, Grayson county, Tex., and who was conducting the same in a lawful manner under license and privilege of the state of Texas, the county of Grayson and city of Sherman, and that while so conducting the same defendants and each of them entered upon his premises and without lawful authority directed and compelled him to close his place of business, threatening him with prosecution and driving his customers away, to his serious damage and to the destruction of his property and property rights. In refusing appellant the relief sought, the following order was made:

"Court in session this 18th day of October, 1915, and came on to be considered plaintiff's petition for injunction herein, and the court having considered the same, and it appearing that an election heretofore held in said county, the result of which has been duly considered and declared by the commissioners' court and county judge of said county, the operation of pool rooms was prohibited in said county, said application is refused, and plaintiff excepts and gives notice of appeal to the Court of Civil Appeals, Fifth Supreme Judicial District of Texas."

The propositions contended for by appellant are, substantially: (1) That the act of the Thirty-Third Legislature, articles 6319a to 6319n, inclusive, Vernon's Sayles' Civil Statutes, which authorizes the qualified voters of any county or political subdivision thereof in this state to determine, by an election to be held for that purpose, whether or not pool rooms or pool halls shall be prohibited in such county or subdivision, and providing a penalty for violation of the provisions of said act if the result of the election be in favor of their prohibition, is unconstitutional and void, because "it is a delegation by the Legislature of its own legislative power imposed upon it by the Constitution, which it alone must exercise, and which it may not commit to any other agency." (2) Because it authorizes the suspension of a general law of the state by the voters of a county or subdivision of a county, namely, the statute licensing the operation of pool halls generally within the state, in violation of article 1, § 28, of the Constitution, which is: "No power of suspending laws in this state shall be exercised, except by the Legislature." (3) That the allegations in appellant's petition show that, unless the writ of injunction prayed for is granted, the acts charged to have been done by appellees and threatened to be done by them will result in an invasion of his property rights and in repeated criminal prosecutions to his irreparable injury, and therefore it is within the jurisdiction and authority of the district court, under the Constitution and laws of this state, to issue said writ.

This court was called upon, in the case of Roper & Gilley v. Lumpkins, 163 S. W. 110, to pass on and determine the constitutionality of the act here in question, and we there held that said act was not in any particular unconstitutional. In support of such conclusion, speaking through Mr. Justice Rasbury, we said:

"The act passed the Senate and House by the required majorities, and was approved by the Governor. It does not by its terms confer upon the electorate any legislative power. It provides that the commissioners' court may, in the exercise of its judgment, and shall upon demand of a given number of voters, order an election for the purpose of prohibiting the operation of pool rooms. It does not provide that the people shall say by their votes whether or not they desire the Legislature to pass an act conferring upon them the right contained in the act. The Legislature has presented such an act, complete and finished in every detail. The act does not permit the electorate to say by their votes whether they approve or disapprove the right conferred. They had and were given no voice in that matter except by virtue of any representation they had in the Legislature. The right to prohibit the operation of pool rooms is clearly conferred by the act itself, and the only step necessary to be taken by the people in order to secure the benefits of the act in the political subdivisions named is for the officials charged therein with such duty to order an election. Hence it can be safely said that the act in no respect attempts to confer upon the electorate the lawmaking power of the Legislature. Every detail of the act is complete, and the people may in no respect add to or take from its provisions, but are merely given the right to vote upon whether the law, as passed, shall be put in operation in the subdivisions named. The act, in our opinion, is dissimilar to the law construed in State v. Swisher, 17 Tex. 441, where the law was held to be unconstitutional, on the ground that it left to the voters the determination of whether or not licenses should be issued to liquor dealers. Justice Lipscomb, in writing the opinion, said the principal objection to the act was that it was referred to the voters for ratification before it became a law. The law under discussion is not subject to that objection, since the right to prohibit the business is complete by the act itself, and there is only left to the determination of the people whether they will exercise the power conferred. The vesting of such discretion in the people is held not to be a delegation of the lawmaking power, for the reason that the discretion imposed involves the exercise of the power as distinguished from its creation. Johnson v. Martin, 75 Tex. 33, 12 S. W. 321.

"But it is urged, in effect, that the act is null and void, for the reason that it is repugnant to the...