Trent v. Kennedy, 8634.

• Decision Date: 21 July 1937
• Docket Number: No. 8634.,8634.
• Citation: 109 S.W.2d 327
• Parties: TRENT v. KENNEDY et al.
• Court: Texas Court of Appeals

109 S.W.2d 327

TRENT v. KENNEDY et al.

No. 8634.

Court of Civil Appeals of Texas. Austin.

July 21, 1937.

On Motion for Rehearing and to Dismiss Appeal October 13, 1937.

Appeal from District Court, McCulloch County; E. J. Miller, Judge.

Suit by Charles B. Trent against H. Kennedy and others. From an adverse order, Charles B. Trent appeals.

Appeal dismissed.

William McCraw, Atty. Gen., and Sam Lane and Leon O. Moses, Asst. Attys. Gen., for appellant.

Evans J. Adkins, William J. Gerron, and T. J. Sanders, all of Brady, for appellees.

McCLENDON, Chief Justice.

Appeal from an interlocutory order refusing a temporary injunction sought to restrain appellees from selling beer in the city of Brady. The suit was originally brought by the Attorney General in the name of the state. A plea in abatement questioning the authority of the Attorney General to maintain the suit on the ground that such suit could only be brought under section 21, of art. 2, c. 467, Gen.Laws 2d Call.Sess. 44th Leg., designated Texas Liquor Control Act (Vernon's Ann.P.C. art. 667—21 prior to 1937), was sustained, and an amended petition was filed naming appellant Trent as plaintiff, and signed by the Attorney General. The amended petition was supported by Trent's affidavit, and otherwise complied with the statutory requirements.

The order refusing the temporary injunction recited that: "the Court was and is of the opinion that there is adequate legal remedy, that the granting of this petition would amount to the enforcing of criminal law through a court of equity, and that there is no sufficient grounds or good cause shown for the granting of such relief in this case."

Appellees present six propositions in support of the trial court's order. Our views of the controlling questions in the case, however, render necessary a consideration of only two of these propositions, which may be stated substantially:

(1) The issues in the case have been adjudicated adversely to appellant in two consolidated cases noted below.

(2) Appellant could not maintain the suit (an equitable one) absent a showing of injury to his person or property.

The following were agreed facts: McCulloch county voted dry in a county-wide local option election prior to the prohibition amendment of 1919. Two county-wide elections were held to determine whether malt liquors of not more than 3.2 per cent. alcoholic content by weight should be prohibited; one February 26, 1934, and the other October 16, 1934. In each election the vote favored the prohibition. A like election in the city of Brady, held October 16, 1934, resulted against the prohibition. No subsequent election has been held affecting the area in issue. As a result of these elections, the entire county, including Brady, is dry area. Walling v. King, 126 Tex. 446, 87 S.W.(2d) 1074; Coker v. Kmeicik, 126 Tex. 440, 87 S.W.(2d) 1076.

Each of the defendants is engaged in selling beer as defined in the Liquor Control Act (Vernon's Ann.P.C. arts. 666 — 1 et seq., 667 — 1 et seq. prior to 1937), in Brady, under a regularly issued license, and will continue to do so unless restrained.

In October, 1936, two suits were brought in the district court of McCulloch county against the sheriff and county attorney of the county. None of the pleadings of plaintiffs in these suits was introduced; but we infer the suits were to enjoin the officers from proceeding criminally against the plaintiffs. These suits were consolidated, and resulted in a judgment dated Oct. 29, 1936, reading: "Injunction as prayed refused as to all parties — All parties except and give notice of appeal to the Court of Civil Appeals, 3rd Supreme Judicial District at Austin. Granted full time allowed by law to file records."

The answer and cross-action of the sheriff and county attorney in one of the suits was introduced, and it was agreed that no other pleadings were filed by either defendant in either suit. This answer contained a plea to the effect that if any of the defendants had licenses to sell beer in Brady, such licenses were void because the October election, 1934, authorizing the sale of 3.2 beverages in Brady was void.

In the cross-action the defendants in their official capacities sought to enjoin plaintiffs from selling beer in Brady; alleging that the cross-action was brought under R.S. art. 4666, and under section 21 of art. 2 of the Liquor Control Act, above. It is not necessary for present purposes to note more particularly the allegations of the cross-action.

It will be observed that the judgment merely denied injunctive relief "as to all parties." From this we infer that all parties, both plaintiff and defendant, were seeking injunctive relief, and, assuming that this was a final judgment, that such relief was the entire subject-matter of the suit, since nothing else was adjudicated. The burden was on appellees upon their plea of res judicata to show identity of subject-matter of the two suits; and it may be seriously questioned whether this burden was met. We pretermit discussion of this issue, however, under our following holding.

Independently of other considerations, we think it clear that the sheriff and county attorney were not authorized to bring the suit (cross-action) under either of the stated statutes.

Article 4666 authorized the county attorney (among others) in the name of the state to abate nuisances declared to be such by article 4664. The latter included as nuisances places where "intoxicating liquors" were sold, etc. These articles were enacted in 1923 when state wide and national prohibition were in force.

The Liquor Control Act was passed under the present constitutional amendment (Const. art. 16, § 20 amended in 1935), and was all-embracing in its scope. It was divided into two articles; the first dealing with liquor, defined as having an alcoholic content in excess of 4 per cent. by weight (section 3-a); and the second dealing with beer, defined as "any beverage" having an alcoholic content of one-half of 1 per cent. or more by volume, and not more than 4 per cent. by weight (section 1(c). Section 29 of article 1, which clearly refers to liquor as thus defined, defines common nuisances, and provides that: "Any county, or district attorney, or the Board, or any agent or employee of this Board in the county where such nuisance exists, or is kept, or maintained, may maintain an action by injunction in the name of the State, or the Board to abate and to temporarily and permanently enjoin such nuisances."

Section 21 of art. 2, which equally clearly relates only to beer as thus defined, provides that: "Upon having called to his attention by affidavit of any credible person that any person is violating, or is about to violate, any of the provisions of this Article governing the manufacture, distribution and sale of beer, it shall be the duty of the Attorney General or the District or County Attorney to assist in any proceedings to restrain any such person from the threatened or any further violation, and the District Judge shall have authority to issue restraining orders without hearing, and upon notice and hearing to grant injunction, to prevent such threatened or further violation by the person complained against, and may require the person complaining to file a bond in such amount and containing such conditions and in such cases as the Judge may deem necessary."

It is manifest that the Liquor Control Act was intended to be complete within itself, and to supersede all prior legislation upon the same subject. In fact, section 1(a) of article 2 expressly provides that: "Unless otherwise herein specifically provided by the terms of this Act, the manufacture, sale and distribution of beer, as hereinafter defined, shall be governed exclusively by...