State v. Ferguson

• Citation: 125 S.W.2d 272
• Decision Date: 01 March 1939
• Docket Number: No. 7536.,No. 7537.,7536.,7537.
• Parties: STATE et al. v. FERGUSON, District Judge, et al. SAME v. KIRBY, District Judge, et al.
• Court: Supreme Court of Texas

125 S.W.2d 272

STATE et al. v. FERGUSON, District Judge, et al.

SAME v. KIRBY, District Judge, et al.

No. 7536.

No. 7537.

Supreme Court of Texas.

March 1, 1939.

Original petition by the State of Texas and others against Honorable Bryce Ferguson, Judge of the Ninety-Second Judicial District of Texas, and another, for mandamus commanding the judge to set aside a temporary restraining order and writ of prohibition prohibiting him from interfering with enforcement of statute; and petition submitted and considered therewith, by the State of Texas and others against the Honorable H. F. Kirby, Judge of the Seventy-Seventh Judicial District of Texas, and others, for similar relief.

Writs of mandamus and prohibition granted in part.

Gerald C. Mann, Atty. Gen., and W. F. Moore, Glenn R. Lewis, A. S. Rollins, and R. W. Fairchild, Asst. Attys. Gen., for relators.

Charles E. Thompson, of McAllen, and Bryce Ferguson pro se, of Edinburg, for respondents Ferguson et al.

Phinney & Hill, of Dallas, Cameron & Hardin, of Edinburg, Doss Hardin, of Waco, and Ross Hardin, of Prairie Hill, for respondents Kirby et al.

HICKMAN, Commissioner.

The above two cases present, in general, the same questions of law; they were submitted together, have been considered together, and will be disposed of in one opinion.

In the first cause, No. 7536, the State of Texas, The Public Safety Commission of Texas, of which Commission W. H. Richardson, Jr., Albert Sidney Johnson and G. W. Cottingham are the members, and Homer Garrison, Director of the Department of Public Safety of the State of Texas, are the relators, and Honorable Bryce Ferguson, Judge of the 92nd Judicial District of Texas, and S. L. Miller, a resident of Hidalgo County, Texas, are the respondents. The relief sought is a writ of mandamus commanding Judge Ferguson to set aside a temporary restraining order granted by him on February 10, 1939, in Cause No. A-4203, pending on the docket of the District Court of Hidalgo County and a writ of prohibition prohibiting him, as district judge, from interfering in anywise with the peace officers of this state in the enforcement of the provisions of Article 827a, Sections 5(a) and 5(b) of Vernon's Annotated Penal Code; further prohibiting him, as such judge, from entering any order adjudging or attempting to adjudge any of the relators in contempt of said district court by reason of any alleged disobedience of the restraining order, and further prohibiting him from conducting any hearing or doing anything in connection with said suit other than to dismiss same until further ordered to do so by this court.

It is made to appear that the restraining order complained of by relators was issued by Judge Ferguson on the 10th day of February, 1939, upon the petition of S. L. Miller alone, who alleged that he was one of a class of several thousand similarly situated and interested citizens, all residents of one or the other of the Counties of Hidalgo, Cameron and Willacy, State of Texas. After this proceeding was instituted in this court and relators' motion for leave to file their petition for mandamus and prohibition was granted, an amended bill of complaint was filed in the court below in which a number of other citizens of Hidalgo County were joined with Miller as plaintiffs, and in response to such amended bill Judge Ferguson on that day, ordered the issuance of another writ in lieu of the original. We shall therefore base our decision upon the amended bill of complaint and the order issued thereon on February 20, 1939.

We find it unnecessary to set out, or even summarize, the allegations of the amended bill. We have examined same and have determined that they were sufficient to invoke the relief granted by the order, provided the judge had the power to grant same. We are, therefore, concerned only with the order issued pursuant to the bill.

Before analyzing this order we shall dispose of two preliminary questions of law. First, the claim in the amended bill of complaint that the statutes limiting the sizes of vehicles and the loads which may be hauled in them over the highways of this state are unconstitutional does not present an open question. These statutes have been definitely upheld both by the Supreme Court of the United States and by this court. Ed Sproles et al. v. T. Binford, sheriff et al., 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167; Ex parte Sterling, 122 Tex. 108, 53 S.W.2d 294.

Second, this court is not wanting in jurisdiction to hear these cases, and if the orders under attack are found to be void, to grant the relief prayed for by the relators. Our State Constitution, Vernon's Ann. St., provides in Article 5, Sec. 3: "* * * The Legislature may confer original jurisdiction on the Supreme Court to issue writs of quo warranto and mandamus in such cases as may be specified, except as against the Governor of the State [of Texas]."

Exercising the powers thus conferred the Legislature has provided in Article 1733, R.S.1925, that: "The Supreme Court or any Justice thereof, shall have power to issue writs of procedendo, certiorari and all writs of quo warranto or mandamus agreeable to the principles of law regulating such writs, against any district judge, * * *."

It has been determined that these provisions of the constitution and statutes confer upon this court the power, in original proceedings, to issue writs of mandamus against trial judges in accordance with the usages of common law. The writ will not lie to correct a merely erroneous or voidable order of the trial judge, but will lie to correct one which he had no power to enter, and which was, therefore, void. Yett v. Cook, 115 Tex. 175, 268 S.W. 715, 281 S. W. 843; Seagraves v. Green, 116 Tex. 220, 288 S.W. 417; Pickle v. McCall, 86 Tex. 212, 24 S.W. 265. It is made to appear that relief is being sought in the Court of Civil Appeals by appeal in one of these causes. We do not think it necessary to consider whether these orders are temporary injunctions, as distinguished from restraining orders, or whether full relief could be granted by the Court of Civil Appeals, for this court's jurisdiction is not dependent upon a determination of those questions. This court has announced the rule that, owing to the great volume of business coming before it, it will not entertain jurisdiction of an original mandamus proceeding in a case where like jurisdiction is conferred upon a Court of Civil Appeals, unless it is made to appear that relief was first sought in that court. Dallas Railway & Terminal Co. v. Royall R. Watkins, 126 Tex. 116, 86 S.W. 2d 1081. That rule was announced to aid the court in the dispatch of its business and will not be followed in a case affecting the state as a whole and in which the orderly processes of government have been disturbed. The language of our Chief Justice in Yett v. Cook, supra, seems most appropriate here:

"* * * The fact that application has heretofore been made to the Court of Civil Appeals for relief has no effect on our jurisdiction. Gulf C. & S. F. R. Co. v. Muse, 109 Tex. 352, 363, 207 S.W. 897, 4 A.L.R. 613.

"The question here involved is whether the statutory rights of a litigant under a supersedeas may be nullified by the trial court by an injunction order. It concerns more than the litigants of this case, and more than merely the respective contentions of the relator in the original suit, and those whose interests he may represent, and the relators here. It is of general public interest, affecting every court and litigant in this state. * * *" [115 Tex. 175, 268 S.W. 721.]

The order recited that it appeared that the temporary restraining order theretofore issued in response to the original bill had been misconstrued and misunderstood by one or more of the defendants, in that it had been misinterpreted as temporarily restraining the enforcement of one or more of the criminal laws of this state, and that it was deemed appropriate to clarify same. It was then ordered that a temporary restraining order be forthwith issued by the clerk immediately upon the filing with him and approval by him of a bond in the sum of $1,000.00, and "* * * * that such temporary restraining order shall be and remain effective and operative until and pending the further orders of this court temporarily restraining the defendants, their agents, servants, deputies, and employees, and each of them, save and except only those who are duly designated and empowered to act as license and weight inspectors, from halting, detaining or weighing, without a search warrant or warrant of arrest theretofore duly issued by a lawful magistrate upon affidavit or complaint duly made before such magistrate, any of the trucks belonging to and operated by the plaintiffs while the same are transporting perishable citrus fruits and vegetables or either of such commodities owned by the respective owners of such trucks and originating in the counties of Hidalgo, Cameron and Willacy; and temporarily restraining those agents of the defendants duly commissioned and designated as license and weight inspectors, as provided by law, from halting and detaining any of such trucks aforesaid in those cases in which said license and weight inspectors, or one or more of them, do not have reason to believe that the gross weight of said trucks is unlawful, and further temporarily restraining such license and weight inspectors and all the defendants, their agents, servants, and employees, from unduly and unnecessarily and unlawfully detaining and delaying the operating of said trucks without proceeding forthwith and with reasonable dispatch with the investigation and weighing thereof after the same may have been halted for the purpose of weighing the same; provided, however, that it is not intended that the said restraining order shall, in any manner, restrain any of the defendants from enforcing in all lawful and reasonable manner any criminal law, nor shall it be intended or interpreted to...