Sportatorium, Inc. v. State, 12619.

• Decision Date: 12 February 1938
• Docket Number: No. 12619.,12619.
• Citation: 115 S.W.2d 483
• Parties: SPORTATORIUM, Inc., et al. v. STATE.
• Court: Texas Court of Appeals

Page 483

115 S.W.2d 483

SPORTATORIUM, Inc., et al. v. STATE.

No. 12619.

Court of Civil Appeals of Texas. Dallas.

February 12, 1938.

Dissenting Opinion February 19, 1938.

Rehearing Denied March 26, 1938.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Dallas County; Claude M. McCallum, Judge.

Suit by the State of Texas against Sportatorium, Inc., and others to restrain the defendants from violating a statute prohibiting personal, physical, or mental endurance contests in public competition for prizes continuing longer than 24 hours. From a judgment granting a temporary injunction, the defendants appeal.

Affirmed.

Mann, Irion & Mann and Sam McCorkle, all of Dallas, for appellants.

Andrew Patton, Crim. Dist. Atty., and Guy L. Mann and E. G. Moseley, Asst. Dist. Attys., all of Dallas, for the State.

YOUNG, Justice.

Appellee, State of Texas, acting by and through Andrew Patton, District Attorney, was granted a temporary injunction in a district court of Dallas county against appellants, on November 17, 1937, restraining the latter parties from violating the provisions of article 614b of the Vernon's Annotated Texas Penal Code; however, on this appeal the assignments urged are the same as would be presented following a final judgment of permanent injunction in the trial court. Although a statement of facts accompanies the record, all of the assignments of appellants are directed to the constitutionality of said chapter 62, page 131, Acts of the 43d Legislature, 1934, 2d Called Session, otherwise known as article 614b of Vernon's Ann. Pen. Code. The parties to this record have been previously before this court in Sportatorium, Inc., v. State, 104 S.W.2d 912; but it is conceded that the points here presented were not directly involved in that appeal. See, also, Braden v. State, 108 S.W.2d 314, for conclusions reached by the Waco Court of Civil Appeals under similar facts. Following are the provisions of the law under attack:

"Section 1. It shall hereafter be unlawful for any person to conduct in public competition for prizes, awards or admission fees, any personal, physical or mental endurance contest that continues longer than twenty-four (24) hours.

"Sec. 2. It shall hereafter be unlawful for any person to conduct, within any period of one hundred sixty-eight (168) hours, in public competition for prizes, awards, or admission fees, more than one (1) such personal, physical, or mental endurance contest at the same place or location, and in which any of the same contestants engage.

"Sec. 3. It shall hereafter be unlawful for any contestant to engage in any personal, physical or mental endurance contest for a period of longer than twenty-four (24) hours.

"Sec. 4. It shall hereafter be unlawful for any person to engage, within any period of one hundred sixty-eight (168) hours, in more than one (1) personal, physical or mental endurance contest which is conducted in the same place or location.

"Sec. 5. Each promoter of or person conducting any personal, physical or mental endurance contest in public competition for prizes, awards or admission fees, who shall violate any provision of this Act, or any person who shall enter any contest that violates any provision of this Act, shall be fined not less than $100.00 nor more than $1000.00 for each offense, or confined in the county jail not less than thirty (30) days nor more than ninety (90) days, or by both such fine and imprisonment.

"Sec. 6. The provisions of this Act shall not apply to any athletic contest of schools, colleges or universities of the State nor to any trial contest for the purpose of testing the strength and capacity of materials and machinery of any kind.

"Sec. 7. Any house, structure, building, place or open air space that is being used for the purposes in violation of the provisions of this Act is hereby declared to be a common nuisance. Any person who knowingly maintains or assists in the maintaining of such a place is guilty of maintaining a nuisance.

"Sec. 8. Whenever the Attorney General or the district or county attorney has reliable information that such a nuisance exists, the Attorney General or the district attorney or county attorney under his direction, shall file in the name of the State in the county where the nuisance is alleged to exist against whoever maintains such nuisance to abate and enjoin the same. If judgment be in favor of the State, then judgment shall be rendered abating said nuisance and enjoining the defendants from maintaining the same, and ordering the said house to be closed for one year from the date of said judgment, unless the defendants in said suit, or the owner, tenant, or lessee of said property make bond payable to the State at the county seat of the county where such nuisance is alleged to exist, in the penal sum of not less than one thousand nor more than five thousand dollars, with sufficient sureties to be approved by the judge trying the case, conditioned that the acts prohibited in this law shall not be done or permitted to be done in said house. On violation of any condition of such bond, the whole sum may be recovered as a penalty in the name and for the State in the county where such conditions are violated, all such suits to be brought by the district or county attorney of such county." Sections 9, 10 and 11 being immaterial, are not set out.

Appellants have advanced some 13 propositions in support of their contention, which may, for practical purposes, be grouped into three classes—the first, second, and third of which propositions complain of arbitrary distinction between persons of the same class, in violation of sections 3 and 19, of article 1, Texas Constitution, article 2, Texas Code of Criminal Procedure, and section 1 of the Fourteenth Amendment of the U. S. Constitution. The fourth proposition complains of the nuisance features of the act, claiming the matters regulated not being a nuisance in fact; and propositions 5 to 13 attack the various provisions of the act and the wording thereof, on the ground of "indefiniteness" and "uncertainty," inhibited by article 1, section 10 of our State Constitution; also articles 1, 6 and 8 of the Texas Penal Code, as well as the Fourteenth Amendment to the U. S. Constitution.

The basic laws, both state and national, above quoted, which appellants assert the granting of this temporary injunction infringes upon, severally provide:

Art. 1, § 3, State Const.: "All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services."

Id., § 10: "In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself, and shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him."

Id., § 19: "No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land."

Article 2, Code of Crim.Proc.: "Due course of law. No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land. (Bill of Rights, § 19)."

Article 1, P.C. "Design of the Code. The design of enacting this Code is to define in plain language every offense against the laws of this State, and affix to each offense its proper punishment."

Article 6, P.C. "Unintelligible law not operative. Whenever it appears that a provision of the penal law is so indefinitely framed or of such doubtful construction that it cannot be understood, either from the language in which it is expressed, or from some other written law of the State, such penal law shall be regarded as wholly inoperative."

Article 8, P.C. "Words, how understood. Words which have their meaning specially defined shall be understood in that sense, though it be contrary to their usual meaning; and all words used in this Code, except where a word, term or phrase is specially defined, are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject matter relative to which they are employed."

Section 1 of Fourteenth Amendment, U. S. Const. "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The act in question can be classified as penal in nature, the penalty provided for its violation as a criminal law being a fine and jail sentence, and cumulative thereof, through suppression by civil proceedings as a common nuisance. The injunction features of the law are therefore more in the nature of additional punishment for its infraction than the establishment of a rule of civil conduct, as illustrated by the principles announced in road law cases. West Texas Coaches v. Madi, Tex.Com. App., 26 S.W.2d 199. Hence, the rule of strict construction should apply in testing the legal sufficiency of the law under consideration as a criminal statute. State v. Duke, 104 Tex. 355-370, 137 S.W. 654, 138 S.W. 385; Green v. State, Tex.Civ.App., 49 S.W.2d 519. "The general rules governing the construction of penal statutes apply in construing statutes under consideration attempting to cover public nuisances or acts in the nature thereof." Waits v. State, Tex. Civ.App., 76 S.W.2d 545, 546, citing Duke Case, supra. Appellants properly state that every act made penal by law invades, to the extent defined therein, the constitutional...