Sweeney v. Webb

• Decision Date: 24 October 1903
• Citation: 76 S.W. 766
• Parties: SWEENEY et al. v. WEBB et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 766

76 S.W. 766

SWEENEY et al. v. WEBB et al.^*

Court of Civil Appeals of Texas.

October 24, 1903.

Appeal from District Court, Grayson County; J. M. Pearson, Judge.

Suit by M. J. Sweeney and others against G. P. Webb and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Moseley & Eppstein, C. L. Galloway, and Don A. Bliss, for appellants. A. L. Beaty, for appellees.

BOOKHOUT, J.

This was a suit for an injunction to restrain the county judge and commissioners' court of Grayson county, as well as E. J. Roberts, proprietor of a newspaper in said county, from publishing the result of a local option election held in said county on the 7th day of March, 1903. An injunction was granted by Hon. A. T. Watts, judge of the Sixtieth Judicial District, and, upon the plaintiff filing a bond, the writ was duly issued and served. The plaintiff M. J. Sweeney has procured all necessary license, and is legally engaged in the occupation of selling intoxicating liquors and beer in the city of Denison, Grayson county. A local option election was held to determine whether the selling of intoxicants should be prohibited throughout said county on the 7th day of March, 1903, and resulted in favor of prohibition, and the commissioners' court entered an order so declaring the result, and prohibiting the sale of intoxicating liquors and beer in Grayson county, except for the purposes and under the regulations prescribed by title 69, Rev. St. Appellant, in his petition, alleged that he had fitted up his place of business with fixtures and appliances suitable for that business only, which fixtures and appliances were reasonably worth the sum of $2,000; that, if the publication of said order is completed, and the law put into effect, his appliances and fixtures will be rendered worthless; that his business will be destroyed, and he will suffer great and irreparable injury. He shows that he will be subject to repeated arrests, and carried away from his business, and that his business is of the value of $15,000, and the same will be entirely destroyed. He further alleges that he has no adequate remedy at law. He challenges the constitutionality of the local option law as embraced in said title upon the grounds briefly stated as follows: "(1) That the local option statute violates the state Constitution, because it denies the voters in cities and towns the right to have elections for such cities and towns as such. (2) That it is unconstitutional because it does not allow the voters in cities and towns of a county where prohibition has carried for the entire county to repeal the law for such cities and towns until it is repealed in the entire county. (3) That it is repugnant to the Constitution, because it undertakes to say how the commissioners' court shall subdivide a county in prohibition elections, while the Constitution provides that this discretion shall be with the commissioners' court, and because it mentions subdivisions that are not enumerated in the Constitution. (4) That it discriminates against the Jews in their worship of Almighty God by interfering with their use of wine, and is therefore against the Bill of Rights and the fourteenth amendment. (5) That it denies the equal protection of the laws, and therefore contravenes the fourteenth amendment, because one section forbids the prescribing of intoxicating liquor by any physician who does not follow the practice of medicine as his principal and usual calling. (6) That it discriminates between those holding different views, and in favor of the prohibitionists in regard to the calling of elections, and therefore denies the equal protection of the laws. (7) That the order calling the election in question was void because it contained the expression, `except for the purposes and under the regulations prescribed by law.'"

I. Yeidel, a Jew, who was also legally engaged in the sale of intoxicating liquors and beer in Grayson county, intervened, and made substantially the same allegations as were contained in the petition of Sweeney. He alleged that he was a Jew, a member of the Jewish Religious Society, and worships God according to the Jewish mode of worship. He adopts the allegations setting up the unconstitutionality of the statute embraced in the petition of Sweeney. The defendants interposed an exception to the petition on the ground that the district court had no jurisdiction of the cause. The demurrer was sustained, the suit dismissed, and plaintiff and intervener appealed.

By the Constitution of the state the district court is given general jurisdiction over "all causes of action whatever for which a remedy or jurisdiction is not provided by law or this Constitution." Section 8, art. 5, Const. Tex. The effect of the demurrer is to admit as true the allegations contained in the petition. These allegations, briefly stated, show that the plaintiffs are lawfully engaged in the sale of intoxicating liquors in Grayson county; that at an election held therein local option has been carried, and that an order so declaring had been passed by the commissioners' court. The statute provides that "the order of the court declaring the result and prohibiting the sale of such liquors shall be published for four successive weeks in some newspaper published in the county wherein such election has been held, which newspaper shall be selected by the county judge for that purpose." Rev. St. 1895, art. 3391. The county judge made selection of the Sherman Courier, a newspaper published in the city of Sherman, Grayson county, of which E. J. Roberts is proprietor; and it is shown that three of the publications have been made, and this suit is to enjoin the last publication. Appellees insist that the continuing the publication of said order is a legislative act, and that the court for this reason has no right to interfere. This contention is untenable. The county judge had selected the newspaper in which the publication was to be made, and the publication was complete, except as to the fourth publication, required by the statute. The continuing of the publication was merely a ministerial act. In the case of Kimberly v. Morris, 87 Tex. 637, 31 S. W. 808, the Supreme Court held that a writ of mandamus would lie to compel the commissioners' court to order an election to determine whether the sale of intoxicating liquors should be prohibited in the county, the requisite number of petitioners having petitioned for the order, and there being no issue of fact to be determined. The effect of this holding was that in such a case the duty of the commissioners' court was purely ministerial. We are of the opinion that the continuing the publication of the order of the commissioners' court was not a legislative act.

It is contended that the mere publication of a void law can have no sufficient direct result upon property rights as could call for the exercise of equity jurisdiction, and, further, that the petitioners have an adequate remedy at law. If it be conceded that the mere publication of the order declaring the result of the election would not call for the exercise of equity jurisdiction, it does not follow that if, as contended, the law is void, and the publication of the order putting the law into effect and its threatened enforcement will render "worthless the appliances and fixtures" of appellants, "destroy their business, and cause them irreparable injury," that a court of equity has not the power to interfere and prevent the threatened injury. It is shown that complaints will, from day to day, be made against them, and that they will be arrested, and dragged away from their business, which will cause them great humiliation and shame and destroy their business. Under these allegations we do not think the appellants would be required to await the destruction of their property and test the constitutionality of the act in a criminal jurisdiction, but that a court of equity could, when its jurisdiction is properly invoked, determine the controversy. This principle seems to be recognized in the case of Caruthers v. Harnett, 67 Tex. 127, 2 S. W. 523. After the learned judge had stated that a court of equity has no jurisdiction to try a contested election for county seats or cases involving the title to an office, he adds: "It does not follow from this, however, when a right involving pecuniary interests not originating in the election is asserted, that no inquiry can be made as to the legal effect of an election when it is set up to defeat such a right." 67 Tex., bottom p. 131, 2 S. W. 526. The case of Harding v. Commissioners was a suit by a liquor dealer to enjoin the commissioners' court from declaring the result of a local option election. The trial court rendered judgment in favor of defendants, and the plaintiff, Harding, appealed. The Court of Appeals for the Third District affirmed the judgment on the ground that the petitioner had a remedy at law, and the court of equity would not interfere to enjoin a threatened criminal prosecution, and that it did not believe that any property rights would be interfered with, or any pecuniary injury sustained by the petitioner. 66 S. W. 44, 3 Tex. Ct. Rep. 796. An application for a writ of error was made, and the writ refused. In refusing the writ the Supreme Court took occasion to deliver a written opinion, in which the court says: "Since it does not appear that the effect of declaring that the election had been carried in favor of local option was to imperil any pecuniary right of the applicant, the question as to him is merely a political one, and the courts agree that a party cannot sue to determine a controversy of such a character." 95 Tex. 175, 66 S. W. 44. The petition did not show that the petitioner was legally engaged in the sale of intoxicating liquors. It would seem that, had the petition shown that any pecuniary right of the applicant would have been imperiled, a different result would have been reached, and the...