Hurt v. Oak Downs

• Decision Date: 29 June 1935
• Docket Number: No. 12074.,12074.
• Citation: 85 S.W.2d 294
• Parties: HURT, Criminal Dist. Atty., v. OAK DOWNS, Inc., et al.
• Court: Texas Court of Appeals

85 S.W.2d 294

HURT, Criminal Dist. Atty., v. OAK DOWNS, Inc., et al.

No. 12074.

Court of Civil Appeals of Texas. Dallas.

June 29, 1935.

Rehearing Denied July 13, 1935.

Appeal from District Court, Dallas County; Jno. A. Rawlins, Judge.

Suit for injunction by Oak Downs, Incorporated, and others, against Robert L Hurt, as Criminal District Attorney. From a judgment granting a temporary injunction, defendant appeals.

Reversed and rendered.

Robert L. Hurt, Crim. Dist. Atty., and W. F. Clark, Ass't Crim. Dist. Atty., both of Dallas, for appellant.

Currie McCutcheon, of Dallas, and J. Franklin Spears, of San Antonio, for appellees.

LOONEY, Justice.

The plaintiffs are Oak Downs, Inc., a domestic corporation, and Winfield Morten, Jack Herman, and F. G. Cameron, incorporators, stockholders, directors, and officers of the corporation; the defendant is Honorable Robert L. Hurt, criminal district attorney of Dallas county, Tex.

In the suit plaintiffs sought and obtained, ex parte and without notice to defendant, a temporary injunction restraining him "from in any manner interfering with the operation of dog races beginning June 18, 1935, excluding Sundays, to run for 40 days, to be held on a tract of land lying West of Love Field, as more fully described in deed recorded in Vol. 1497 page 315, Deed Records of Dallas County, Texas, from interfering with the business, meet, exhibition and the betting by the pari mutuel or certificate system and from filing against these plaintiffs, their agents, servants or employes or those associated with them in the said project or business or exhibition or meet, provided that this injunction shall not prevent any investigation by the Dallas County Grand Jury of any violations of law that may occur during said race said meet, and said District Attorney may present evidence before said Grand Jury and prosecute any and all cases in which indictments may be returned, until further order of the District Court * * *" from which the district attorney prosecuted this appeal.

After excluding immaterial matters and all mere conclusions and arguments of the pleader, we are of opinion that plaintiffs show that they will suffer a serious property damage, if the district attorney carries out his purpose to prosecute them criminally and pursue them under civil statutes, for keeping certain premises for the purpose of being used as a place to bet or wager on dog races conducted under the pari-mutuel system.

As a general rule, prosecutions for the violation of penal statutes will not be enjoined, but it seems that this rule is subordinate to the principle that where there is an attempt made to enforce a constitutionally void law, or to prosecute in the absence of any law authorizing same, and property rights demanding protection are involved, such prosecution or threatened prosecution is enjoinable. See 24 Tex. Jur. p. 66, § 46, and authorities cited.

That betting on dog races, under the scheme called pari-mutuel, as planned and proposed by plaintiffs, is gambling (see 27 C. J 976), is not controverted, hence it follows that, if betting or wagering on dog races is prohibited and penalized by statute, it was the plain duty of the district attorney to enforce the same, hence he should not have been enjoined.

Thus we are brought to the question: Is betting or wagering on dog races prohibited by art. 624 P. C.? If so, the keeping of premises where people resort for such purpose is made an offense by article 625 of the Penal Code. These statutes read as follows: "Art. 624. If any person shall bet or wager at any gaming table or bank or shall bet or wager any money or other thing of value at any of the following games, viz.: muggins, crackloo, crack-or-loo, or the game of matching money or coins of any denomination for such coins or for any other thing of value, or at any table or bank, by whatsoever name the same may be known, or whether named or not, and without reference as to how the same may be played, constructed or operated, or shall bet or wager upon anything in any place where people resort for the purpose of betting or wagering, he shall be fined not exceeding fifty dollars. When it is alleged and proven that the betting was on any gaming table or bank, the court or jury may, in addition to said fine, impose a jail penalty of not less than ten nor more than thirty days.

"Art. 625. If any person shall keep, or be in any manner interested in keeping any premises, building, room or place for the purpose of being used as a place to bet or wager, or to gamble with cards, dice or dominoes, or to keep or to exhibit for the purpose of gaming, any bank, table, alley, machine, wheel or device whatsoever, or as a place where people resort to gamble, bet or wager upon anything whatever, he shall be confined in the penitentiary not less than two nor more than four years, regardless of whether any of the above mentioned games, tables, banks, alleys, machines, wheels or devices, or things are licensed by law or not. Any place or device shall be considered as used for gaming or to gamble with or for betting or wagering, if any money or anything of value is bet thereon, or if the same is resorted to for the purpose of gaming or betting."

While it is the peculiar province of the Court of Criminal Appeals to construe penal statutes, we have been furnished with no decision of that court construing the statutes in the respects in which they are now being considered. It is obvious that dog racing is not specifically mentioned in the statute; therefore, if such betting or wagering, or the keeping of premises where people resort for such purpose, are prohibited, such meaning must be found in the words of general import, following specific designations, as follows: "If any person shall bet or wager * * * upon anything in any place where people resort for the purpose of betting or wagering, he shall be fined not exceeding fifty dollars." Plaintiffs insist that the doctrine of ejusdem generis is applicable as a rule of construction, and that the general language quoted should be construed as including and prohibiting only betting or wagering on games, tables, and banks, of a like kind and nature to those specifically mentioned in the statutes. In support of this contention, plaintiffs cite the recent decision of the San Antonio court, in All Texas Racing Ass'n v. State (Tex. Civ. App.) 82 S.W.(2d) 151, 153. This decision supports the contention of plaintiff, as it holds that the keeping of premises as a place for dog races and for betting on results thereof under the pari-mutuel system is not an offense. Entertaining as we do the greatest respect for the uniformly able opinions of members of the San Antonio Court, yet we can neither accept as sound the reasoning, nor the correctness of the result reached, in the case just referred to. In reaching its conclusion, the court implies, from certain acts of the Legislature, a legislative interpretation of the statutes under consideration. It says: "But it is clear that the Legislature did not consider that article [625 P. C., formerly Art. 388b, chap. 49, Acts 1907] or any part of it sufficiently broad to cover betting on horse races, for the Legislature in 1909 (chapter 45) specifically made it an offense to bet on horse races. And, if betting on horse races was not prohibited by that article, betting on dog races, a similar sport, was not so prohibited." Pursuing this line of argument, the court also said that: "A recent legislative construction of the present article 625 is still more forceful. Article 655a, Acts 1933, First Called Session, chapter 10, p. 32 (Vernon's Ann. P. C. art. 655a), legalized betting under the pari mutuel system upon the results of horse races. That act specifically provided that: `The said certificate system as herein authorized shall not be construed to be either pool selling, betting or bookmaking within the meaning of Articles 645, 647 and 648 of the Penal Code of the State of Texas, Title 2, Chapter 6, according to the 1925 revision.' But there is no reference whatever to article 625. The Legislature, in legalizing betting in this manner on horse races, evidently did not consider that betting on horse races was prohibited by the terms of article 625."

In our opinion, the implication of a legislative construction, as mentioned, is unwarranted. The court assumed that, in 1909, the Legislature, realizing that the statute under consideration did not prohibit betting or horse racing, enacted chapter 45, specifically dealing with that subject. There was no occasion for the Legislature to consider whether or not article 388b of chapter 49 of Acts of 1907 prohibited betting on horse races, as such offense, as well as the buying and selling of pools, and the receiving and making of bets on horse races, and the keeping of premises for such purposes, were at that time prohibited by a separate and specific law, and had been since 1903. The first act on the subject was approved March 23, 1903 (see chapter 50, pp. 68, 69, Session Acts); this was amended by an act approved May 2, 1905, being chapter 165, pp. 398, 399, Session Acts, and in lieu of these enactments, the Legislature adopted the act approved March 11, 1909, being chapter 45, mentioned by Chief Justice Bickett. In view of this status of the law, we fail to see that either the act of 1909 or the Horse Racing Act of October 12, 1933 (Acts 1933, 1st Called Sess. c. 10, p. 32 [see Vernon's Ann. Civ. St. art. 655a] furnishes any evidence of a legislative construction of the Gaming Act approved March 28, 1907 (chapter 49), including, as originally enacted the statutes (articles 624 and 625) under consideration. In enacting chapter 49 in 1907, including the provisions brought forward in articles 624 and 625, P. C., and in enacting chapter 45 in 1909, amending the statutes with reference to horse racing, pool selling, etc., the Legislature is presumed to have acted with full knowledge...