authority upon county courts to grant injunctions when the controversy is within their limited jurisdiction.

Same-crime.

of a crime where property rights are in2. Courts will enjoin the commission

volved.

local statute continued in force, notwith- by a constitutional provision conferring standing the adoption of the local option law, and notwithstanding the fact that the local act made the guilt of the vendor depend, not alone upon his own act of selling, but on the use to which the vendee put the liquor obtained. This ruling that the local acts continue in force, and prosecutions may be had under them, notwithstanding the adoption of the local option law, has been followed in a number of subsequent cases. See Locke v. Com. 25 Ky. L. Rep. 76, 74 S. W. 654; Crigler v. Com. Injunction-crime-legislative authority. 27 Ky. L. Rep. 918, 87 S. W. 276, and cases cited.

Our attention is called to the fact that in Allen v. Com. 10 Ky. L. Rep. 280, and Wooton v. Com. 15 Ky. L. Rep. 495, it was held by the superior court that, in localities where the local option law is in force, persons who illegally sell liquor must be pro

Nuisance-party plaintiff.

3. The legislature may permit any person within the jurisdiction to move for an injunction against a nuisance in the shape of a gambling house.

4. The legislature may authorize the issuance of injunctions against a commission of crime.

(Davidson, P. J., dissents.)

(November 15, 1905.)

ceeded against under that law, and not APPLICATION for a writ of habeas corpus

under the general law; but we cannot concur in the reasoning or conclusion of the court. He who sells liquor in violation of law violates the general law, and the wrong is no less a violation of that act because he cannot get license. If he cannot get license, he has no right to sell. If he sells when he cannot get license, he is no less guilty under the general law than if he could get license and failed to do so. The commonwealth must indict under the local option act, and show it to be in force, in order to inflict the greater penalty; but if there is doubt as to the local option law being in force, or difficulty of proving the fact, the commonwealth may well prefer, as in other cases, to prosecute for the lesser offense. As the defendant has violated both laws, he cannot complain that he is prose cuted for the lesser, rather than for the greater, offense.

Judgment reversed, and cause remanded for further proceedings consistent herewith.

Paynter and Nunn, JJ., dissent.

Petition for rehearing denied.

to secure the release of petitioner from custody to which he had been committed for failure to obey an injunction forbidding his operating a gambling house. Petitioner remanded.

The facts are stated in the opinion. Messrs. Sluder & Neal and N. B. Williams, for applicant:

The district court did not have jurisdiction, because said petition is in no manner based upon an equitable right or demand that would give the court jurisdiction.

Anderson v. Kennedy, 58 Tex. 616; Seele v. State, 1 Tex. Civ. App. 498, 20 S. W. 946; Mann v. Wallis, 75 Tex. 611, 12 S. W. 1123; Kaufman County v. McGaughey, 3 Tex. Civ. App. 669, 21 S. W. 261; Lazarus v. Swafford, 15 Tex. Civ. App. 368, 39 S. W. 389; State v. Patterson, 14 Tex. Civ. App. 465, 37 S. W. 478.

A court of equity has no jurisdiction to enforce, by injunction, compliance by a citizen with the criminal laws of the state.

State v. Patterson, supra; Ex parte Towles, 48 Tex. 431.

The general equity jurisdiction given to the district court in the Constitution is limited by the doctrine of stare decisis, and cannot be extended by legislative enact

TEXAS COURT OF CRIMINAL APPEALS. ment to other subjects.

EX PARTE R. J. ALLISON. (Tex. Crim. App. -, 90 S. W. 492.) Injunction—jurisdiction.

1. The general jurisdiction of the district court to grant injunctions is not ousted

Ex parte Towles, supra; Cobb v. Cohron (Tex. Civ. App.) 26 S. W. 846; Gibson v. Templeton, 62 Tex. 555; State ex rel. Jennett v. Owens, 63 Tex. 261; State v. DeGress, 72 Tex. 243, 11 S. W. 1029; Leach v. State, 36 Tex. Crim. Rep. 249, 36 S. W. 471; Lytle v. Halff, 75 Tex. 133, 12 S. W.

Case Note. It may be stated as a general |eral as the rule; viz., that equity will not rule that equity will not intervene to pre- refuse to intervene to protect property vent the commission of a crime. There is rights from irreparable injuries because the an exception to this rule which is as gen-acts sought to be enjoined are criminal acts.

610; Powell v. State, 17 Tex. App. 348; | Allison from the use of certain premises Thomas v. Hill, 3 Tex. 271; Ex parte Gin- in the city of Waco as a gaming house. nochio, 30 Tex. Crim. Rep. 591, 18 S. W. The writ was issued and made returnable 82: Ex parte Warfield, 40 Tex. Crim. Rep. before Hon. Marshall Surrat, judge of the 420, 76 Am. St. Rep. 727, 50 S. W. 933; nineteenth judicial district. Motion to disCope v. District Fair Asso. 99 Ill. 489, 39 solve was made, and the trial was had beAm. Rep. 30. fore Judge Surrat, who made the injuncMessrs. W. L. Eason, Minor Moore, and tion permanent. Thereafter relator Allison Howard Martin for the State.

Henderson, J., delivered the opinion of alleged violation of said injunction. The the court:

court, on the hearing, adjudged relator This is an original proceeding on habeas guilty of contempt, and by the judgment corpus. It appears from the record that of the court a fine of $100 and three days' on the application of Minor Moore an in- imprisonment in the county jail was imjunction was granted on August 5, 1905, posed. On account of this judgment, reby Hon. O. L. Lockett, judge of the eight-lator sued out the writ of habeas corpus eenth judicial district, restraining R. J. before this court.

The maintenance of a slaughterhouse, the offensive odors from which seriously interfered with the peaceful enjoyment of a neighboring farm and were likely to cause illness, was enjoined in Minke v. Hopeman, 87 Ill. 450, 29 Am. Rep. 63, although the 464, and Young v. Scheu, 56 Hun, 307, 9 N. The cases of Rice v. Jefferson, 50 Mo. App. owner had been acquitted upon an indict-y. Supp. 349, hold that no property right of ment charging him with the same offense; but in Tiede v. Schneidt, 99 Wis. 201. 74 would protect was endangered by the erecowners of near-by property such as equity N. W. 798, the dissolution of an injunction tion of a frame building within the fire lines restraining the maintenance of a slaughter- of a city or town, in violation of the penal house in a city which polluted the waters of ordinance. But Kaufman v. Stein, 138 Ind. a stream upon which it was situated, in 49, 46 Am. St. Rep. 368, 37 N. E. 333, held violation of law, and tended to render the that the removal of a wooden building to a adjoining premises unfit for residential pur-placc upon a lot adjacent to plaintiff's lot,

gainsaid. It will be noted that the act in question is aimed at the restraining of persons from using certain premises or buildings for the purpose of gaming, or of keeping or exhibiting games prohibited by the laws of this state, and does not seek to punish such persons for so using said premises or buildings. As was said in Warfield's Case, supra: "An injunction is a mere restraining order, and it will be presumed that the party against whom it is granted will obey it as long as it continues in force; otherwise, if he does not regard it, as the issuance of the writ is a proper exercise of equity, he will move to dissolve it." A gambling house, under our statute, and as recognized by our courts, is a nuisance, and even at common law, as we understand it, such a nuisance could be enjoined at the instance of anyone who was injured thereby. Our statute enlarges this right and assumes that any person within the jurisdiction is injured, and that he can make complaint and have the restraining

that the same was void and of no effect. Undoubtedly, under our Constitution and laws, the district court did have jurisdiction to grant the injunction in this case. Anderson County v. Kennedy, 58 Tex. 616. How ever, the contention is that under the amendment of the Constitution relating to county courts, that tribunal has jurisdiction of injunctions where the amount in controversy is within the jurisdiction of the county court. The contention here is that the operation of a gambling house under our law is a misdemeanor, and within the jurisdiction of the county court, and that consequently the county court has jurisdiction of an injunction in regard to the keeping of gambling houses. It does not occur to us that this by any means follows. Even if it be conceded that the county court had jurisdiction to grant the injunction, this jurisdiction was merely concurrent, and did not oust the jurisdiction of the district court, which is authorized to grant injunctions generally. The very fact that no amount involved is stated in the ap-order issued. State v. Patterson, supra, replication for injunction would suggest jurisdiction in the dictrict, and not the county, court. If some amount within the jurisdiction of the county court had been stated, then it may be conceded that the county court would have had at least concurrent jurisdiction. We do not believe there is anything in this contention.

It is urgently insisted by relator that the injunction granted was without authority of law because it was an attempt on the part of the court to enjoin the commission of a criminal offense. This contention may be conceded as a general proposition. State v. Patterson, 14 Tex. Civ. App. 465, 37 S. W. 478; Ex parte Warfield, 40 Tex. Crim. Rep. 420, 76 Am. St. Rep. 724, 50 S. W. 933. However, the respondent insists that the granting of the injunction in this case was not an attempt to enjoin the commission of a criminal offense, but was an injunction granted against the use of property, the using thereof constituting it a nuisance; and, furthermore, respondent urges that, notwithstanding, under the English system of equity jurisprudence which has come down to us, that courts will not enjoin the commission of crime as crime, yet it is entirely competent for the legislature to create other matters the subject of equitable cognizance than those recognized under the general system of equity.

With regard to the first proposition, we believe it will be conceded that, where property rights are involved, courts will issue injunctions, notwithstanding it may embrace a crime; or, if it should not be so conceded, we believe, on principle and authority, that this proposition cannot be

lied on by relator, recognizes the rule that a gambling house is a nuisance and can be abated, and that the writ will lie when property or civil rights are involved, and some irreparable injury to such rights is threatened or about to be committed for which no adequate remedy exists at law. It is said, further: "The injury threatened to such rights may, if committed, constitute a crime and subject its perpetrator to punishment under the criminal law, yet, as his punishment would furnish him whose property or civil rights have been irreparably injured by the acts constituting the offense no compensation for such injury, courts of equity will interfere to prevent such an injury, notwithstanding the commission would constitute a criminal offense, -not because it would be a crime, but because the injury to such rights would be irreparable. It cannot be said that such interference by a court of equity is an invasion of the domain of the criminal law, for no crime has been committed where equity interposes its arm for the protection of property or civil rights. In extending such protection, it may prevent a crime, but, as no one has a right to commit crime, no one should be heard to complain that he is restrained from its commission, when such restraint has been exercised in the jurisdiction of a court for the purpose of preventing him from irreparably injuring another in his property or civil rights." The court in that case even recognizes the right of the state, through her proper of ficers, to enjoin a public nuisance, but that the state must show in such case that the nuisance is an injury to the property or

civil rights of the public at large. It was writ of injunction, although it may inthere held that the state did not show such volve restraining the commission of crime; injury to property or civil rights of the that is, that the legislature can enlarge the public, and that consequently it presented powers of courts of equity to grant ina criminal case, pure and simple, and an junctions. Our own statute regulating ininjunction would not lie. This case was junctions authorizes the issuance of writs of decided before the act of the legislature injunction under the principles of equity; upon which the injunction at bar was grant- and, moreover, authorizes the issuance of such ed was passed. The act in question was writs when the party applying is entitled evidently passed to meet the defects pointed to the relief demanded, and such relief, or out by the court. Here it is provided that any part thereof, requires the restraining such injunction may issue at the instance of some act prejudicial to the applicant. of any citizen of the state who is author Sayles's Rev. Civ. Stat. art. 2989. This has ized to sue in his own name; and that such been held to broaden the field of equity jurisperson shall not be required to show that diction. Sumner v. Crawford, 91 Tex. 132, he is personally injured by the acts com- 41 S. W. 994; Ex parte Warfield, 40 Tex. plained of. Now, if the legislature was Crim. Rep. 413, 76 Am. St. Rep. 724, 50 lawfully authorized to make the provisions S. W. 933. As shown in the latter case, in the law, as above pointed out, no one even in England, courts of equity are no can question the legality of the writ of longer required to search for rights of injunction; and it lies with those chal- property on which to base its jurisdiction lenging the power of the legislature to to grant an injunction, as a statute has been point out that provision of the Constitu- passed enlarging the jurisdiction of courts tion inhibiting the legislature from passing of equity. In that jurisdiction it is now such an act. And see Carleton v. Rugg, held that English courts are entirely free 149 Mass. 550, 5 L.R.A. 193, 14 Am. St. to grant injunctions to protect personal Rep. 446, 22 N. E. 55, and, for authorities, rights, including the right of reputation, 11 Am. & Eng. Enc. Law, pp. 195-197. and injunctions against libel are in fact It must be presumed that the legislature recognized that the use of such property for gaming purposes was injurious to the public welfare and morals of the community; and under its police power it had the right to enjoin such use.

It is no answer to the proposition to say that the party so enjoined might disregard the injunction and voluntarily commit the offense of keeping a gaming house, and so be subjected to punishment for such crime; and that therefore the court had no right to enjoin him. Nor can it be said that because of the injunction he was deprived of the right of trial by jury. We understand that, under our blended system of law and equity, a person sued can, under certain forms of law, demand a jury, whether the case is one of legal or equitable cognizance. It all depends upon whether there were such facts in the case as that the person enjoined desired a jury to pass upon. In this case no jury was demanded, and the question comes before us in the shape of a demurrer, the facts being admitted, and the sole question is as to the constitutionality of the act providing for the injunction. Of course, as to the matter of contempt, relator could not demand a jury. Crow v. State, 24 Tex. 13. But, as stated before, he could demand a jury as to any matter of fact involved in the injunction proceeding. Davis v. Davis, 34

Tex. 24.

In addition to this, we go further, and hold that it is entirely competent for the legislature to authorize the issuance of a

granted. Unless it can be shown that some constitutional provision is violated by the passage of this act, no one will question the power of the legislature to authorize the issuance of such writ. We have heretofore seen that it is not violative of the Constitution in depriving a person of the right of trial by jury. Nor can it be said that it is not due course of law. There is nothing in our Constitution outlining or even suggesting any system of equity jurisprudence, so it was left entirely within the province of the legislature to say what equitable powers it would give the courts. If it be conceded that the effect of the act in question is to restrain the commission of crime, still, there being nothing in the Constitution preventing the legislature from doing this, they had authority to so legislate. In State v. Goodnight, 70 Tex. 682, 11 S. W. 119, our supreme court had this question under review. That was a case where appellee, Goodnight, had inclosed with a fence, school land belonging to the state, and an injunction was granted in the suit requiring him to remove said fence from around said public lands. Among other things, that court said: "But it is insisted, in the brief of counsel for appellee, that the state has a plain, adequate, and complete remedy, without resorting to the writ of injunction. We understand it to be claimed, in the first place, that because the act of February 7, 1884, makes the inclosure of the public lands a penal offense, and provides for the prosecution and punishment