Malone v. City of Houston, 12824

• Decision Date: 14 April 1955
• Docket Number: No. 12824,12824
• Citation: 278 S.W.2d 204
• Parties: James W. MALONE et al., Appellants, v. CITY OF HOUSTON et al., Appellees.
• Court: Texas Court of Appeals

Page 204

278 S.W.2d 204

James W. MALONE et al., Appellants, v. CITY OF HOUSTON et al., Appellees.

No. 12824.

Court of Civil Appeals of Texas, Galveston.

April 14, 1955.

Rehearing Denied May 5, 1955.

Seymour Lieberman, John Benn, Houston, for appellants.

Will G. Sears, City Atty., Robert L. Burns, Senior Asst. City Atty., Houston, for appellees.

HAMBLEN, Chief Justice.

The following statement of the nature of this suit, which is considered adequate for the purposes of this opinion, is taken from appellants' brief:

On or about the 22nd day of September, 1954, appellants brought a class suit in the nature of a declaratory judgment to determine the rights of the plaintiffs as affected by a municipal ordinance, and the object of the declaratory judgment was to seek and obtain declarations and a determination of the unconstitutionality of certain sections of a municipal ordinance, adopted by one of the defendants herein, The City of Houston, on the 25th day of August, 1954, and becoming effective on the 26th day of September, 1954, which substantially prohibited the sale to any child under the age of eighteen of a crime comic book.

The plaintiffs in the District Court in their original petition also asked for a temporary injunction to temporarily enjoin the enforcing of the Crime Comic Book Ordinance pending a final hearing thereon, and that the plaintiffs be permitted to continue the sale of pamphlets, books, magazines and other publications set forth in the ordinance as they were then doing, or did prior to the enactment of said ordinance.

The defendants, filed exceptions to the entire cause of action for want of jurisdiction. The court, without a hearing on the merits of the temporary injunction, sustained the exceptions in its final judgment, and dismissed the cause for want of jurisdiction, to which ruling the plaintiffs excepted and gave notice of appeal.

We deem it unnecessary to set forth the six points of error upon which appellants seek a reversal of the judgment rendered for the reason that we consider the sole question presented to this Court to be the correctness of the trial court's action in dismissing the cause for lack of jurisdiction. Except in so far as it might bear upon the determination of that question, the constitutionality or validity of the ordinance is not before us.

The ordinance involved is conceded by all litigants to be a penal ordinance enacted by the City of Houston under the authority delegated to it by the State Legislature. Under the division of jurisdiction between the civil and criminal courts which prevails in this State, the constitutionality or validity of a penal statute or ordinance is ordinarily within the exclusive jurisdiction of the criminal courts. The equity jurisdiction inherent in the civil courts of general jurisdiction in this State has been held to be properly invoked and exercised only in those cases wherein the enforcement of the statute or ordinance complained of will result in injury to a vested property right for which no adequate remedy is available through the criminal courts. Unless civil jurisdiction is so limited, there could patently result a conflict in the decisions of our courts of civil and criminal jurisdiction, and consequent uncertainty in the law. The law appears to be settled in Texas that equity will not enjoin criminal proceedings or attempt to stay the hands of police officers in enforcing criminal law except where the law attempted to be enforced is unconstitutional and void and its enforcement will result in irreparable injury to vested property rights. State ex rel. Flowers v. Woodruff, 150 Tex.Cr.R. 255, 200 S.W.2d 178; Kemp Hotel Operating Co. v. City of Wichita Falls, 141 Tex. 90, 170 S.W.2d 217; Stecher v. City of Houston, Tex.Civ.App., Galveston, 272 S.W.2d 925 (app. ref. N.R.E.).

The Uniform Declaratory Judgments Act, Article 2524-1, Sections 1 to 16, inc., Vernon's Annotated Texas Statutes, does not enlarge upon the jurisdiction of the civil courts in so...