State v. Clark

• Decision Date: 15 December 1915
• Docket Number: (No. 3721.)
• Citation: 187 S.W. 760
• Parties: STATE ex rel. McNAMARA, Co. Atty., v. CLARK, District Judge, et al.
• Court: Texas Court of Criminal Appeals

187 S.W. 760

STATE ex rel. McNAMARA, Co. Atty., v. CLARK, District Judge, et al.

(No. 3721.)

Court of Criminal Appeals of Texas.

December 15, 1915.

Dissenting Opinion February 16, 1916.

Concurring Opinion June 30, 1916.

Prohibition by the State, on the relation of John B. McNamara, County Attorney, against Erwin J. Clark, District Judge, and another, in the case of Sam Reed against John B. McNamara. Ordered that the writ issue.

John B. McNamara, Co. Atty., and Damon C. Woods, Asst. Co. Atty., both of Waco, for relator. Williams & Williams, of Waco, for respondents. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

The application of John B. McNamara, county attorney of McLennan county, filed in this court, would show, that upon petition filed by Sam Reed in the district court of the Seventy-Fourth judicial district, alleging —

"that he is the owner of eight pool and billiard tables, necessary balls, racks, etc., of the value of $1,000; that he is renting a hall and paying therefor the sum of $35 per month; that he has procured state, county, and city licenses at a cost of $40 to run a pool hall; that if allowed to run said hall he can earn the sum of $150 to $200 per month. He further alleges that at an election theretofore held in McLennan county, under a law adopted by the Legislature in 1913, known as the `pool hall law,' the running of pool halls had been prohibited in McLennan county. He alleges that said act of the Legislature is unconstitutional and void, but unless the said Jno. B. McNamara, county attorney, is enjoined, he will institute criminal proceedings against the said Sam Reed, wherefore he prays that a writ of injunction be granted, restraining the said Jno. B. McNamara and his assistants from instituting any criminal proceedings under said law."

Upon the filing of said petition E. J. Clark, judge of the district court of the Seventy-Fourth judicial district, indorsed thereon the following order:

"The clerk is hereby directed to issue the writ of injunction as prayed for, this 7/26/1915."

The clerk of the district court, in obedience to said order, issued an injunction, enjoining and restraining the county attorney from filing any complaint or information against the said Sam Reed for a violation of said law, which was duly served on the county attorney. Upon application being first made to us by the county attorney, seeking relief from such injunction, this court refused to issue any process until the county attorney had filed a motion or plea seeking the dissolution of said injunction. After the court had refused to dissolve the injunction, application was again made to us, when we issued temporary process, and set the cause down for hearing. Upon the hearing it was agreed that the evidence on the motion to dissolve showed that if the pool hall law is valid, it had been legally adopted in McLennan county, and after said law had been adopted all pool halls were closed in McLennan county; that at the time of the adoption of said law Sam Reed owned the pool and billiard tables, but that he rented the building long after the adoption of the said law, and paid the city, county, and state license long after the law had been adopted, and after the Court of Criminal Appeals in Ex parte Francis, 72 Tex. Cr. R. 304, 165 S. W. 147, had held the law valid, and had not rented the building, nor obtained the state, county, and city licenses until after the Supreme Court had rendered the opinion in Ex parte Mitchell, 177 S. W. 953, in which that court held the law invalid.

The first inquiry to be made is whether or not under the above state of facts it was within the jurisdiction and authority of the district court of McLennan county to issue the writ of injunction under the Constitution and laws of this state. If so, then we would have no jurisdiction nor authority to interfere with the orders made by that court in granting the injunction, no matter how unwise we might deem its action. If it had jurisdiction and authority to issue the writ, we cannot pass on whether it acted properly or improperly in doing so. On the other hand, if the facts set out did not confer jurisdiction upon the district court to issue the writ of injunction, then its action in doing so is wholly void, and if the order is void, and under it the enforcement of the criminal laws of this state is being restrained, we think, under the law, this court has not only the authority, but it is its duty, to declare such order a nullity, in order that the county attorney may proceed with the proper performance of the duties enjoined on him by the other laws of this state the validity of which are not questioned.

Whether wisely or unwisely, the people of this state in framing their Constitution divided the jurisdiction of the civil and criminal courts of final resort, conferring on the Supreme Court final jurisdiction in all civil matters, and upon this court final jurisdiction in all criminal matters. Section 3, art. 5, defines the jurisdiction of the Supreme Court, and section 6 of said article defines the jurisdiction of the Courts of Civil Appeals, making it plain that the jurisdiction of those courts extends to civil cases only. Section 5 of said article specifically provides that this court, the Court of Criminal Appeals, "shall have appellate jurisdiction co-extensive with the limits of the state in all criminal cases of whatever grade," and it is given the power to issue writs of habeas corpus, and issue all such other writs as may be necessary to enforce its jurisdiction. Thus the people, in their Constitution, drew a definite line of division of jurisdiction and authority between the courts of this state, and if the pool hall law provided a penalty to be recovered by civil suit, this court would have no jurisdiction to inquire into the validity of the law, or to seek to enforce it or restrain its enforcement, and we would seek to exercise none. However, the Legislature, in its wisdom, saw proper to make a violation of that law a crime, and provide for the punishment for a violation of its provisions, enforceable only upon the filing of an indictment or information. Section 13 of the act provides, when the law is put in operation in a given territory:

"Any person who shall thereafter operate or maintain a pool hall shall be subject to prosecution, and on conviction shall be punished by fine of not less than $25.00 and not to exceed $100.00, or by confinement in the county jail not less than thirty days nor more than one year, and each day such pool hall is run shall constitute a separate offense."

No provision is made to collect any penalty for violating the law by any civil suit. Unfortunately the Supreme Court and this court arrived at different conclusions as to the validity of this law. As said by us in Ex parte John Mode, 180 S. W. 709, recently decided, but not yet officially reported, in upholding the validity of the law, had the Legislature provided for the recovery of a pecuniary penalty by a civil suit, we would concede that under the Constitution of this state, the opinion of the Supreme Court was binding, as it was given final jurisdiction in all civil suits. But the Legislature did not so provide, and made the enforcement of the law a criminal case, and of which cases the Constitution made this court the court of final jurisdiction, and this court has twice upheld the validity of the law, in suits brought to test its constitutionality. That question we do not care to again discuss, as we have so fully set forth our reasons in Ex parte John Mode, supra, and in Ex parte Francis, 72 Tex. Cr. R. 304, 165 S. W. 147.

The question next arises is, When have civil courts the jurisdiction to restrain by injunction an officer from enforcing a criminal law which the civil courts deem unconstitutional, and especially in a state like this, where the civil and criminal jurisdiction of the courts have been separated, and two courts of final resort created? A writ of injunction is an equitable remedy, and that well-known author on Injunctions, Mr. High, says, in section 68:

"Since courts of equity deal only with civil and property rights, they will not interfere by injunction with criminal proceedings, having no jurisdiction or power to afford relief in such cases. Jurisdiction over such actions is conferred upon courts specially created to hear them, and with few exceptions, it is beyond the power of equity to control, or in any manner interfere with, such proceedings by injunction. If, however, the act concerning which an arrest or criminal prosecution is threatened affects civil property and its enjoyment, in protecting the property right, equity may properly enjoin the criminal prosecution. But in such case its interference is founded solely upon the ground of injury to property and the necessity of preserving property rights. And where such rights are not clearly involved, the relief will be denied."

And in section 1244 he says:

"It necessarily follows from the doctrines above stated that when municipal ordinances have been enacted by proper authority, proceedings on the part of municipal officers for their enforcement will not be enjoined merely because of the alleged illegality of the ordinances. A court of equity will not, therefore, interfere by injunction to restrain municipal officers from prosecuting suits against complainants, or from interfering with their business because of their violation of municipal ordinances which are alleged to be illegal, since the question of the validity of such ordinances does not properly pertain to a court of equity when complainants have a perfect remedy at law, if the ordinances are invalid" (citing many authorities and illustrations).

The American and English Ency. of Law, vol. 16, page 370, lays down the rule:

"It is a well-settled rule, both in England and America, that a court of equity has no jurisdiction to interfere by injunction to restrain a criminal...