Manor Casino v. State

• Decision Date: 18 March 1896
• Citation: 34 S.W. 769
• Parties: MANOR CASINO et al. v. STATE.
• Court: Texas Court of Appeals

34 S.W. 769

MANOR CASINO et al. v. STATE.

Court of Civil Appeals of Texas.

March 18, 1896.

Appeal from district court, Travis county; James H. Robertson, Judge.

Petition by the state against Manor Casino and others for injunction. There was a judgment for plaintiff, and defendants appeal. Reversed.

Geo. S. Walton, A. J. Gibson, and W. M. Walton, for appellants. M. M. Crane, Atty. Gen., and R. R. Lockett, Asst. Atty. Gen., for the State.

FISHER, C. J.

Petition for injunction, of the state of Texas on the relation of the county attorney of Travis county, Texas, to restrain Manor Casino, a corporation under the laws of the state of Texas, its officers, agents, and employés, and Chas. A. Finn, as its secretary and individually, and F. A. Finn, as its treasurer and individually, from selling or exchanging or giving away, for the purpose of evading the provisions of the local option law, intoxicating liquor in justice precinct No. 2 of Travis county, Texas, the same being alleged to be a precinct in which local option is in force; and further to restrain said defendants (appellants here), their agents and employés, from engaging in the business of selling malt liquors exclusively without first paying the required taxes, procuring the required license, and filing the required bond; praying for immediate restraining order, and that it be perpetuated on final hearing. Original petition filed May 24, 1894. The appellants (defendants below) jointly and severally answered by general and special exceptions, general denial, and specially denying under oath each and every material allegation and equity of the petition. On October 11, 1894, appellants' exceptions to petition, general and special, were overruled by the court, except those relating to payment of taxes, procuring license, and filing a bond, which were sustained. Exceptions reserved. Final hearing had before the court January 15, 1895. Judgment perpetuating injunction as prayed for. Exceptions by appellants, and notice of appeal given in open court.

The relief asked by the state and that granted by the court below is to restrain by injunction an act characterized by law as a crime. Independent of a statute authorizing such a remedy, we do not believe that a court of equity will restrain the commission of a crime unless in a case in which the threatened act may injuriously affect the property rights of the complainant. City of Austin v. Austin City Cemetery Ass'n, 87 Tex. 336, 28 S. W. 528; 1 High, Inj. (3d Ed.) §§ 20, 68, 272. Therefore we must turn to the statute for authority for the relief granted by the court below. Doing this, we find that the twentieth legislature, at its special session May 12, 1888, passed a law authorizing the state, at the instance of the county or district attorneys or attorney general to pursue the remedy of injunction to restrain the violation of any revenue or penal law; and it is evident that by virtue of that act this action is prosecuted. The point was raised below by demurrer, and is here preserved, that the act in question is unauthorized and void, because the subject of this legislation was not embraced in the call of the executive in convening the legislature in special session, nor was it presented by the governor for its consideration. Section 40, art. 3, of the constitution reads: "When the legislature shall be convened in special session there shall be no legislation upon subjects other than those designated in the proclamation of the governor calling such session or presented to them by the governor." Section 8, art. 4, of the constitution states that the proclamation of the governor shall state specifically the purpose for which the legislature is convened. If it be conceded that under the first section quoted subjects of legislation may be presented by the executive to the legislature in special session other than those embraced within the proclamation convening that body, we are clearly of the opinion that this must be done by a message or communication in writing by the governor, and that it was not intended that the expression, "presented to them by the governor," would authorize the governor to present subjects of legislation simply based upon a parol request to that effect, made to the legislature. The provisions of the constitution relating to the exercise of the privileges and duties of the governor in communicating officially with the legislature clearly contemplates that these functions must be exercised in written communications, —the method usual in such cases. This is clearly contemplated by section 21, art. 4, of the constitution, that prescribes the duties of the secretary of state. It is there required that he shall keep a fair register of all official acts and proceedings of the governor. These views are expressed in order to combat any possible contention that may be urged that the law in question is valid because it may have been passed by the legislature in response to a communication received from the governor that was not in writing, and the evidences of which were not preserved as an archive of his office or that of the secretary of state, or shown by the proceedings of the legislature. Our views upon this subject are also stated as prefatory to the consideration of the proclamations, messages, and communications that were delivered by the governor to the legislature. The courts will take judicial knowledge of the proclamations, messages, and public communications of the governor to the legislature. Wells v. Railway Co. (Mo. Sup.) 19 S. W. 530; Prince v. Skillin, 71 Me. 367. This being true, we ascertain that the following are the proclamations and communications issued by the...