Hetrick v. State, 4489.

• Decision Date: 04 November 1935
• Docket Number: No. 4489.,4489.
• Citation: 87 S.W.2d 887
• Parties: HETRICK et al. v. STATE.
• Court: Texas Court of Appeals

Page 887

87 S.W.2d 887

HETRICK et al. v. STATE.

No. 4489.

Court of Civil Appeals of Texas. Amarillo.

November 4, 1935.

Appeal from District Court, Briscoe County; A. J. Folley, Judge.

Suit by the State against C. A. Hetrick and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

Meade F. Griffin, of Plainview, for appellants.

C. D. Wright and C. W. Norrid, both of Silverton, for appellee.

MARTIN, Justice.

After a full hearing, at a regular term, the district court of Briscoe county entered its judgment abating as a nuisance the "Burson Dance Hall" in the town of Silverton, for the time and upon the conditions prescribed by article 4666, R.S. 1925.

This judgment was in response to affirmative answers made by the jury to the following special issues:

"Special Issue No. 1. Do you find and believe from the evidence that the Dance Hall known as the `Burson Dance Hall' is a place to which persons resort in assembling of two or more persons to the room for the purpose of drinking intoxicating liquors? Answer `Yes' or `No.'

"Issue No. 2. If you have answered the preceding issue `yes' then answer this question: Did the defendants herein have knowledge of, acquiesce in, or consent to such persons resorting in assembling of two or more persons to the room for the purpose of drinking intoxicating liquors, if they did? Answer `Yes' or `No.'"

The suit to abate the nuisance named above was filed by the state, acting through the county attorney of Briscoe county. While appellee mentions as authority for the prosecution articles 4664, 4666, 5107, and 5108, R.S. 1925, we deem the two last inapplicable here in view of the quoted findings upon which alone the judgment in question must be sustained.

Article 4664, as it affects the present case, reads: "Any * * * place * * * to which persons resort in assembling of two or more persons to the room for the purpose of drinking intoxicating liquor * * * is hereby declared to be a common nuisance. Any person who knowingly maintains or assists in maintaining such a place is guilty of maintaining a nuisance."

Article 4665 is in part as follows: "Evidence of general reputation of said houses shall also be admissible to prove the existence of said nuisance."

In an interesting brief, appellants advance many contentions. The major ones are, we think, all comprehended within their fifth proposition, which is as follows:

"The court erred in giving a judgment for the plaintiff and against the defendants after the jury returned their verdict, because:

"A. If the dance hall was a place where two or more people to the room commonly resorted for the purpose of drinking intoxicating liquors and such conduct was known to the defendants, the state of Texas would not be entitled to a permanent injunction, because there was no pleading and proof nor finding by the jury, that such intoxicating liquors were of the kind and character that the drinking of same was unlawful at the time when and place where it is alleged said drinking occurred."

Their chief contention under this proposition may be succinctly stated by a quotation from their brief: "Under the law as it existed at the time of the filing of the petition in this case and the trial of the same, it would not have been unlawful for 3.2 beer, which is an intoxicating liquor and included in the allegation of plaintiff's petition on which they went to trial, to have been sold in a subdivision of the county unless such subdivision of the county was dry in 1919 at the time of the adoption of the prohibition amendment to the Constitution. However, there are no allegations in the petition to the effect that Briscoe county was dry either at the time of the adoption of the prohibition amendment or at the time of the filing of the petition and the trial of the case. Under the allegations in the plaintiff's petition it would, therefore, be possible that the intoxicating liquor which they complained of (and the acts and conduct in regard to such intoxicating liquors) consisted of 3.2 beer, and it could be that it was not unlawful to drink or transport or barter or sell or give away 3.2 beer at said dance hall at the time about which complaint was made."

There is neither pleading nor proof that Silverton, the location of the place in question, was dry local option territory at the time of or prior to the filing of appellee's petition. From this, it is argued:

(1) That such petition was subject to a general demurrer; (2) that a peremptory instruction should have been given; (3) that the judgment in question was without pleading or proof to support it. The argument is in part: "It is further a fundamental principle in cases of this kind and character that no person can be enjoined from the lawful use of his premises and that an injunction will not be sustained under the statutes involved unless the person doing the acts complained of could be successfully prosecuted and convicted under the terms of the law which they have alleged to have violated. State v. Duke, 104 Tex. 355, 137 S.W. 654, loc.cit. 664, second column (7), 138 S.W. 385."

By section 20 of article 16 of the State Constitution, adopted at election August 26, 1933, it is provided in part: "The manufacture, sale, barter or exchange in the State of Texas of spirituous, vinous or malt liquors or medicated bitters capable of producing intoxication, or any other intoxicant whatever except vinous or malt liquors of not more than three and two-tenths per cent (3.2%) alcoholic content by weight (except for medicinal, mechanical, scientific or sacramental purposes) are each and all hereby prohibited." This further provides for legalizing by local option election the sale of vinous and malt liquor containing not more than 3.2 per cent. of alcoholic content by weight.

Later the Constitution in this regard was again amended (Aug. 24, 1935), some of the provisions being:

"The open saloon shall be and is hereby prohibited. The Legislature shall have the power, and it shall be its duty to define the term `open saloon' and enact laws against such.

"Subject to the foregoing, the Legislature shall have the power to regulate the manufacture, sale, possession and transportation of intoxicating liquors, including the power to establish a State Monopoly on the sale of distilled liquors."

The fundamental thing dealt with in these amendments is the manufacture, sale, barter, and exchange of intoxicating liquor. These do not touch the issue upon which the present judgment is based. True, appellee alleged, but did not stand upon, sales, etc., of intoxicating liquor. If it had done so, a different question would be presented. Here, the allegation, the proof, and the issue...