State v. Parker

• Decision Date: 16 June 1948
• Docket Number: No. A-1654.,A-1654.
• Citation: 212 S.W.2d 132
• Parties: STATE v. PARKER.
• Court: Texas Supreme Court

Page 132

212 S.W.2d 132

STATE v. PARKER.

No. A-1654.

Supreme Court of Texas.

June 16, 1948.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Suit by the State of Texas against A. J. Parker to enjoin a common nuisance. To review a judgment of the Court of Civil Appeals, 208 S.W.2d 380, by which a judgment for plaintiff was reversed and rendered, plaintiff brings error.

Affirmed.

I. B. Hand, Cr. Dist. Atty., Grindstaff, Zellers & Hutcheson, A. E. Zellers, all of Weatherford, for petitioner.

John L. Poulter, of Fort Worth, for respondent.

HICKMAN, Chief Justice.

The State of Texas, acting by and through Honorable I. B. Hand, County Attorney of Parker County, brought this suit in the district court of that county under authority of Article 4666, R.C.S., to enjoin a common nuisance as defined by Article 4664, R.C.S. The action was against the respondent, A. J. Parker, who owns and operates a dance hall in the city of Weatherford, Parker County. The ground upon which the injunction was sought was that the place operated by Parker was a public place to which the public commonly congregate for pleasure and to which persons resort in assembly of two or more persons to the room for the purpose of drinking intoxicating liquor. In a trial before the court, without the assistance of a jury, an injunction was issued closing the place for one year in accordance with the provisions of Article 4666, unless respondent should make bond conditioned, in part, "* * * that persons will not be permitted to resort to such place in assembly of two or more persons to a room for the purpose of drinking intoxicating liquor, * * *."

On appeal the Court of Civil Appeals at Fort Worth reversed the trial court's judgment and rendered judgment dissolving the injunction, one of the Justices dissenting. 208 S.W.2d 380.

The controlling question for determination is whether or not the Texas Liquor Control Act, Article 666 — 1 et seq., 667 — 1 et seq., Vernon's Texas Penal Code, repealed by necessary implication the particular provision of Article 4664, R.C.S., under authority of which respondent's place was adjudged to be a nuisance. That provision is as follows:

"Any * * * place to which the public commonly resort for board or lodging or commonly congregate for business or pleasure * * * to which persons resort in assembling of two or more persons to the room for the purpose of drinking intoxicating liquor * * *."

Such a place, among others, is declared by Article 4664 to be a common nuisance, and by Article 4666 the Attorney General or the District Attorney or the County Attorney is authorized to file suit in the name of the State in the county where the nuisance is alleged to exist to enjoin the same.

Articles 4664 — 4666 were enacted during the period of national and state prohibition when intoxicating liquor could not be transported or delivered. Article 666, Penal Code 1925. Under that article persons could not lawfully assemble to drink liquor, for they could not lawfully transport it to the place of assembling. Obviously, the purpose of the Legislature in enacting Articles 4664-4666, in so far as they relate to intoxicating liquors, was to aid in the more efficient enforcement of the prohibition laws then in effect. Subsequent to the passage of those articles the prohibition amendments were repealed, and the Texas Liquor Control Act, Articles 1 and 2, carried as Articles 666 — 1 et seq., 667 — 1 et seq. Vernon's Texas Penal Code, a comprehensive law with respect to intoxicating liquor, was enacted by the Legislature. That act in Article 666 — 29 authorized the bringing of an injunction suit by any county or district attorney or the Liquor Control Board for the purpose of enjoining a common nuisance, but it dealt only with nuisances resulting from the violation of the liquor law. Among other places declared to be a common nuisance was a place "where persons are permitted to resort for the purpose of drinking liquor in violation of the law." That section of the act was amended in 1943, 48th Leg., p. 339, ch. 221, so as to declare as a common nuisance not only a place where alcoholic beverages are consumed in violation of law, but also those places where alcoholic beverages are consumed "under conditions and circumstances contrary to the purposes of this Act." The purposes of "this Act" are clearly stated in the Act itself, Article 666 — 2, in this language:

"This entire Act shall be deemed an exercise of the police power of the State for the protection of the welfare, health, peace, temperance, and safety of the people of the State, and all its provisions shall be liberally construed for the accomplishment of that purpose." Acts 1935, 44th Leg., 2nd C.S., p. 1795, ch. 467, Art. 1, sec. 2.

As a result of this last amendment a public official named in the amendment may bring a suit to enjoin a place not only where liquor laws are violated but also a place where liquor may be lawfully possessed, sold, or consumed, if that place is...