Smith v. Decker

• Decision Date: 30 April 1958
• Docket Number: No. A-6663,A-6663
• Citation: 312 S.W.2d 632,158 Tex. 416
• Parties: Tom SMITH et al., Appellants, v. Bill DECKER, Individually and Bill Decker, in his Official Capacity as Sheriff of Dallas County, Texas, Appellee.
• Court: Texas Supreme Court

Page 632

312 S.W.2d 632

158 Tex. 416

Tom SMITH et al., Appellants, v. Bill DECKER, Individually and Bill Decker, in his Official

Capacity as Sheriff of Dallas County, Texas, Appellee.

No. A-6663.

Supreme Court of Texas.

April 30, 1958.

Albert Reagan and Joe McNicholas, Dallas, for appellants.

Henry Wade, Dist. Atty., John J. Fagan and A. George Biggs, Asst. Dist. Attys., Dallas, for appellee.

SMITH, Justice.

This is a direct appeal from a judgment rendered in the 14th Judicial District Court of Dallas County, Texas. The suit was originally brought by appellants seeking a mandamus against Bill Decker, Sheriff of Dallas County, to compel him to approve an appearance bond signed by them as sureties for Howard Harold Blodgett, who was then confined in the County Jail of Dallas County, Texas, charged by a Grand Jury indictment with violation of the State Narcotic Law, a felony, his appearance bond having been fixed by the District Judge at $1,500. Appellee answered and alleged that appellants were engaged in the business of writing bail bonds in Dallas County, Texas in violation of the Acts of the 55th Legislature, Regular Session, Chapter 420, page 1259, as amended by Senate Bill 25, Vernon's Ann.C.C.P. art. 271c, known as the Bail Bond Law, without having first been licensed by the Administrator of the Securities Division of the Office of the Secretary of State to engage in such business as required by the provisions of Section 4 of said Act as amended. This charge was not denied but was admitted by appellants. Appellants filed a supplemental petition seeking to declare the Bail Bond Law above mentioned unconstitutional for reasons hereinafter set out, and, in the alternative, for a declaratory judgment, holding the Act to be void and unenforceable, and, in the alternative, an injunction enjoining the appellee from enforcing the provisions of this law. Upon the hearing before the trial judge, appellants withdrew their application for mandamus and declaratory judgment, and the court, after hearing the pleadings, stipulations of the parties, and arguments of counsel found that the refusal of appellee to approve the bail bond submitted by appellants was proper as appellants were not licensed as bail bondsmen as provided by law. The court further found that the Bail Bond Law is constitutional and is a valid and subsisting law and binding on the appellants herein.

Because this case is before us by direct appeal and differs from the usual suit to enjoin the enforcement of a statute, in that here no criminal proceedings have yet been instituted against appellants, we believe it necessary to briefly discuss our jurisdiction to order the issuance of the injunction in the event we should feel the statute in question is unconstitutional. Article 5, Section 3-b of the Constitution of Texas, Vernon's Ann.St., expressly provides for direct appeals to the Supreme Court where the issue of constitutionality or unconstitutionality of a statute shall have arisen by reason of the order of a trial court granting or denying an interlocutory or permanent injunction. While in the great majority of cases of the present kind, injunction was sought to enjoin criminal proceedings already in progress, we have been cited no authorities which hold that an injunction as sought in the present case is premature. This is such an appeal as is authorized by Article 5, Section 3-b, supra, and by the Acts of the 48th Legislature, 1943, Chapter 14, Vernon's Civil Statutes, Article 1738a. The record also shows the requirements of Rule 499-a, Texas Rules of Civil Procedure, have been followed in perfecting this direct appeal.

Appellants both pleaded and proved by stipulation that they are in the business of writing bail bonds and that if Appellee Decker is not restrained from enforcing the said Bail Bond Law, irreparable injury to them will result, for which they will have no adequate remedy at law. That a right to earn a living is a property right within the meaning of our Constitution was early established by the United States Supreme Court in the Slaughter House cases, 16 Wall 36, 21 L.Ed. 394, and a person cannot be deprived of it by simple mandate of the legislature.

In answer to a certified question, this Court held in City of Austin v. Austin City Cemetery Ass'n, 87 Tex. 330, 28 S.W. 528, that if a city ordinance be void, and even though the city was not immediately seeking to enforce it through criminal proceedings, when the facts in the record show that the right and privilege of using their property for cemetery purposes was destroyed or impaired by virtue of the existence of the ordinance, relators were entitled to an injunction. The Court went on to quote from City of Atlanta v. Gate City Gaslight, 71 Ga. 106, wherein it was held: 'Where it is manifest * * * that a prosecution and arrest is threatened for an alleged violation of city ordinances, for the sole purpose of preventing the exercise of civil rights conferred directly by law, injunction is the proper remedy to prevent injury to the party thus menaced.' 28 S.W. at page 530. The City of Austin case has been cited very frequently and its principles were adhered to by this Court in the fairly recent case of Kemp Hotel Operating Co. v. City of Wichita Falls, 141 Tex. 90, 170 S.W.2d 217, 219.

Since the Bail Bond Law is a Penal Statute, we believe that the principle sought to be applied in this case is no different from the attack made upon the statutes or ordinances involved in Ex parte Sterling, 122 Tex. 108, 53 S.W.2d 294; Box v. Newsom, Tex.Civ.App., 43 S.W.2d 981; Neiman-Marcus Co. v. City of Houston, Tex.Civ.App., 109 S.W.2d 543 (error refused); Kemp Hotel Operating Co. v. City of Wichita Falls, supra.

Appellants having a vested property right in making a living, subject only to valid and subsisting regulatory statutes, and being prevented from performing their business otherwise lawful but for the statute in question, we believe that we are permitted under the rule announced in Kemp Hotel Operating Co. v. City of Wichita Falls, supra, to order the issuance of the injunction. There it was stated that courts of equity may be resorted to for the purpose of enjoining the enforcement of a criminal statute or ordinance when same is void and when its enforcement invades a vested property right of the complainant.

Appellants attack the Bail Bond Law above mentioned because it violates Article 3, Section 56 of the Texas Constitution, which prohibits the Legislature from passing any local or special law where a general law can be made applicable. The contention embraces the proposition that the use by the Legislature of the population brackets set out in the Act constitutes an arbitrary classification, and that the Act, special in nature, is rendered unconstitutional by reason of the fact that such classification bears no reasonable relationship to the objects sought to be accomplished. We sustain this contention.

The caption of the amended Act reads as follows: 'relating to the regulation of the business of giving bail in criminal and quasi-criminal cases; amending Sections 4, and 6 of Chapter 420, Acts of the 55th Legislature, Regular Session, 1957, to make said sections applicable in any county which contains in whole or in part a city containing not less than seventy-three thousand (73,000) inhabitants, and not more than one hundred thousand (100,000) inhabitants, according to the last preceding Federal Census; and declaring an emergency.'

Section 1 of the Act reads as follows:

'Any person, firm or corporation, in any court having criminal jurisdiction, or in any criminal or quasi-criminal action or proceeding who shall for another, deposit any cash, bonds and/or other securities, or execute as surety any bond or recognizance, who within a period of ninety (90) days prior thereto shall have, for hire or for any reward, make such a deposit or give such bail in three (3) or more cases not growing out of the same transaction, shall be deemed to be engaged in the business of giving bail.

'(a) Persons actually engaged in the practice of law and who are members of the State Bar of Texas who personally execute bonds or sureties for persons they actually represent in criminal cases or secure others to execute such bonds shall not be deemed bondsmen as defined herein.

'(b) This Act shall not apply to a fidelity, guaranty or surety company duly qualified to act as a surety or guarantor in the State of Texas nor any duly qualified agent thereof, when such fidelity, guaranty or surety company is duly licensed and regulated by the Board of Insurance Commissioners or the Banking Commission.'

Section 4 of the Act as amended at the Special Session of the 55th Legislature provides:

'No person, firm or corporation shall engage in the business of making bail within any county containing a city of three hundred and fifty thousand (350,000) inhabitants or more, according to the last preceding Federal Census, or within any county containing in whole or in part a city having a population of not less than seventy-three thousand (73,000) inhabitants, and not more than one hundred thousand (100,000) inhabitants, according to the last preceding Federal Census, without first having been licensed thereto by the Administrator of the Securities Division of the office of the Secretary of State; nor shall any person, firm, or corporation be permitted to engage in such business if such person or any member of such firm, or officer or director of such corporation shall have been convicted of any felony, or of any misdemeanor involving...