Untitled Texas Attorney General Opinion ( 1944 )

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OFFICE OF THE ATTOftNE? QEN’ZkAL OF TEXAS
AUSTIN
WCCSCLUCC
!z!tz=F
- . .
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.:
“l&& arr A,,& g;&&&& a&&t.&)&
om.ePs‘of a grow-of o&tle.aasembl&t ‘In a glmz
territory against the sale of USA@:4m.fnaZsfqr
slaughter, ,for hwan consumption p&&poses, when
positive proo$ m4.d be eatabZishedthat the oat-
tie are. badly diecased vlth ‘ce.nmror other di- .,
seasea.,or iafeotI.om tbst renders the meat ‘them-,
fawn ,onflt far hman conaumptlon pwpo8e8.’ ~.
‘Legayt - .’
%n lntereat of proteat& t;aa:Eea~th’of dt%
people, ooulcl art injucmtion bs 8ustalneQ against’
ths huger or .Ownerof bsrXLydlsr?ase$, a@ otheP-’
wise unfit ‘llve.ytock for. hunianoyynptlo+ fpq ,I
‘..
Xoaorable Rogep Q. mans, page 3
boLng transported within the Stata for the pur-
pose of slaughter for human consumption p~~posea.
“Legallgt -
“In Interest of protoctlng the Eooalth of our
people ooukl en IQJuQCtlOQ bo sustained against
,an inafvidual, a Company, a corporation, dealing
exolU3lvely in discasea, crlpplod, or otherwiao
unl'it Livestock for human conswnptlon purpose,
“where positive proof can be entablinhed that aaid
individual, Companyor CoPporotion with minor ex-
ceptions am8 only in livostod: that ar0 CD~COP-
ous, llllopy jawed, orlppled, OF badly infected
with acreu worms, OP other d~iscases that cause
the antiilals to be weaken& to ouch an extent that
they may’far1 ilDliQ in tho k;illLng chutes.
“IQ an effort to protect the &alch of OLW
citizenship !!ould a clraz*ge of sabotage a@lrist an
iQdiVth!Zl, a compeny OS x corporation be within
the scapo of la..., uhc~~.posLtFvo proQf v!3a ostab-
l’ishod that tha i~~U.viclual, ccmpang or corporation
was knovln@y dealin,n, in livestock unfY.t for humn
consurqtlon purposes? Or denllng In root or the
,by products that are detrimental to the Ecalth of
0t.z people?
“The Committee Smther- wishes to call rour
Department to those othor facts.
“Thsoi*&arron@i:cnts vith certain stock yards
tha Committco is furnltAm3 with rooords as to the
buyma of the above clans of livestock, and UChaao
proof that aomo buyer& move thin c&as of C?~WXXW~
livestock to paoturos In lareo gurntlties, which
takes than out of jurisdiction of t&3 stock barbs,
and thcu resell them to buyers CT;sl.au&terers
where Pn thero is no inapoction, or in?dogc.ate in-
spection uhLch is wo~ae thcln no FnspectLcn la that
Honorable Roger Q. Evans, page 4
it Sools the public. Other buyers move large num-
bers by truclc or by rail to locations that haa no
inapectioa, or inspectors that permits such class
of animals to be slaughtered for human consumption
purposes
6
‘Your attention is ftithes called to tho fact
that the people dealing in thls class of llvestock
are as clever as ~1 Capono uas and by far a womie
1 enemy to the publla.
1 . “As the Committoe lntesprcts the present laws
dealing with slaughtering of livestock for human
oonsumpl;lon, that insonitamtg ccnditions is about
all the law covera, so it is almost impossible to
stop the flov of diseased and unfit cattle into
the channels of trade for humn consuxy~ionp~lr-
poses, without a broador lnterpratation of our
laus.
“The Committee ~113. be glad to furnish avi-
denco from leading Voterlnsrios that hwbrcds of
heads of such cattle are being slau$itered monthly
for htiman consumption pwptme, anri that the meet
therefrom Is unfit for hliilsno to eat. The Com-
mlttoc further hna proof thnt mmh of this meat is
aok LA the form of @ound meats, sausages, and
lush mats thet is feA to school children ati de-
fense wor+kers 3.n preparing lunches.
“The CommIttoe feels th8.t lnrlch meats and
other processed meats should be from just as healthy
cattle a3 our prime roasts or, beef steaks.
"Ill our a~penl to you for a gersoril considcr-
ation of this witter NO call
your attention f&it
tho ldyislaturo sill not bo In regular scsslon for
a QG;IP, and during that time the Iiealth of our
people is in jaoy~rdy, and vill centintro to grov
woxse If the commnyftteofails to find rclLcf through
the Courts, thcrofope ve urg,c: and pray for aoslst-
ante in our effazts to safeguard the llcalth of our
peop3.e froia a fev money aceking usocrupulous un-
worthy people that aye a disgrace to be c$assed 05
citizens of any country, including Sa*n.
‘i
BoAorablo Roger Q. EVCAS, page 5
House Resolution No. 232, providing for tho appoint-
ment or a Committee to investigate the sale of certain meat,
is printed on pages 2623-25 of the Rag 3, 1943, issue of the
%ouse Journalr The report of the, Committee is printed, on
pagoa 3061-63 of the May 11, 1943, iaeue of the Rouse Journal.
Undoubtedly the matters and facts disclosed both in
your latter an8 In the Corzitteo*s report, justify furthcr
legiolative treatment stren@henlng the law. Such aale~
should be declared a public ntisance and injunctive relief
ape&f ically authorized,
As to your last or fourth guestlon, a careful aearoh
of our State statutes on the subject did not dlBolose any stat-
Ut;t? AOW in fOrCG app;2icoble t0 the facts ROAtiOA3diA you!
1ettorr It is not withln the grOvinCe of this Department to
‘speculate upon the atificiencg of tho present Federal stat-
utes.
Our answer to your first t&se questions depend up-
on whether the acts mentloncd therein constitutes a pubI&
nuiuonco to prevent which the cGu1tabl.e poues’s of a court of
competent ju~ladiction mny bo invoked to prohibit; the contln-
uance of euoh acts, The prosent atotutes of Texao do not ex-
pressly authorize the issucnce of an injunction to prevent the
anle of dead oniasls or the sale and slowhtor of disease&
anlrals for human consumption. The Bt6tUte3, a3 hereinafter
ehoun, do denounce these not3 as orImlnal,
The general rule is that equttg does not restrain
crimes; but a reco@.eed exception to this general rule la
that cquitg may lnterpone to restrain acts amounting to crlnee
If thE: facts show groundn for eguitablc jurisdiction, aside
from the crL!ninal feature of the Hot comRlaincd of, and a need
for the interposition of equity. Nul.z:anccs, 39 Am. Jur., 410,
--
fi 147; 4X2, b 148, .,
It should be borne in miind that the basic concep-
tion of a urit of injunctlon 1s that “It is a protective and
prevantntivc rather than a restorative writ, nncl should not
be used whcso t&c la%! provides s~nple and efficient moan3 for
the prevention and punishment of crime and the preservation
““cl
Xonorablo Roger Q. Evana, pa@ 6
Of rlghtfi.” San Antonio V. Schutte, (C.A. 1922) 246 3. U,
413. Again in the aa.xx oaae the court said;
‘Injunctions ohould be strictly confined to
the purpose of prevcntln~ imeparable injury when .
the law l..s Iugdegmte to attain ouch object. ...
The urit of injunction in its bcnoficiont use is
an agency of the oourt filled with bleasfngs to
the people, but in Its lcvish sod ill-coaaidered
application it booomes a terrific abuse of law and
order, and a mmme to republican yoverrment .‘I
ITowthe poue~ to protect the-- health
- of
- . . the - publio
~.
18 Inherent in ever aoveralgnty -- _I kimzel--..---...-- &L’0P
v. Cit -&xGy;sen
Antonlc, (1920 C.A. 9 221 5. b!. 237, erro;’ refuse .
hotice Fisher of the Austin Court of Civil A .poalo In Ca
of Lleno v. Llano cou?lty ( 1893) 23 9. N. (2d7 100s spklg-
xug of the use of an equitable remedy as a cumlcti~e remedy,
said:
Ii..a Whatever may have beer,, OF is nou, the
construction placed upou the comon law by mm
cowt~, to the effect that pu?~lio nuisances that
arc ~ololg injurious to the Se;lcml public can
only be abated at the 3.nsimxe of the sovereign,
either by indlotnent or cc,uitable remedy invoked
bg its law offiWu?sto th3.t md, must yield to a
policy that has gxorin Into a principle of luu In
novt of the etatos of tho Union, to the affect
thst the state, in its aoveroign capacity, has
delegated its authority In thQ respect to those
muulaipal corgorstiono that are nctiug a3 cltg;
Sovcruments by authority fron tho state. ..t
The Legislatum leas passed 13~ regulatir?g the sln~ghter of
an&ale for food connuqtion aud the sale thereof.
i
.
Honorable Roger Q. Evans, page 7
Penal Code, Artlolo 707, atatcsa
“For the purposes of this chapter an arti-
cle still be deemed to be adulterated:
”. ..*
“(0) In the case of foodr
” ?.. .
"(6) if it oonsists In whole or in pnrt of
I a filthy, decomposed or putrid ani!izl or veget-
able substance, Or any portiOn of en Einim21or
vogatsbh? unfit SOS food, vhethcr ~~nufnctured or
not, or if it is the product of a diseased sniwl,
or one that has died otherwise than by slnu@icr.
“The term ‘filthy’ shall be deemod to apply
to food not securely protected frou flies, dust,
dirt;, and as f6r es may ba necessary by al.1 roa-
sonablo wans, from all foreign or ~njwious con-
tamlnct ions, ”
Thepcnz.byfo$ violntl~ the pure food l%ws (P.S.,
$A;, g7) is by fin:, of not lcs s than $25.00 nor nom than
9 ’ l
It shall not bc nc’ccsn~.r-q for t11.0iIIdictKont to al-
1~0 02 foF~?lZjEFm to I~~KXZG the act OS oZXZ5.?Zon ms3
Elo-~~on8 OS pEiEYia7 ~lLxIpT3
--- owa)
Now the court in ohlch there hns boon presented an
indictment or information for casryim on any trade, busi-
AC89 or occupation injurf.ous tO,,publlC health IGIg “Oi’lthe L3p-
plicatlon of auyoae interested, Ulld ostcs hcsrfn~ arid procOT,
‘restrain the defendant, in such pen!Aty as m&ybe dcor;cd
propor, from carrying on such tmdo, bu.sLaesn or occupatic%o,
or WY m&e such order reqx!ctin~ the mCknne* tXldnpl.~Ce Of
carryin on the snmo as mny be deenod cdvisnble; and if dc-
fendant be convicted, the rentreint e&ill be l:?lh pel+pctLd..
C.C.P., Arts. 104-109.
Ronorable Roger Q. EVOAS,page 8
“Whoever shall carry on any trade, busluess
or ~occup3tio~ Injurious to the health of those
who resic!o in tbo vicinity, or suSYrany sub-
stance tM.cil &IS that oifect to remin on poem-
i3eS in his pOXlC33iOll, ShZlrr‘be fined not z
than ten nor t101~ethan one huA&ed dollars. Eeoh
day la a separate offense.” (mphasis ours)
Other articles of the statutes, for instance, Artl-
clo 4664, define nufsanosst but these definitions are not pm-
tlnent to tho mtter under discussion. See article on BUS-
snnpes 10 23 Tcx. YUP, 409.
The oneral grounds Sor'an'lnjunctlon am enurnerat-
ed In Article $ 642. Sactlon 3 of that article Is as Sollovs:
‘f3. Where the applicant shows hiwolf en-
titled thereto under the Rr,rinciples of equity, and
the pmvinions of the statutes of this State re-
latlug to the granting of tijunctloas.”
And pwti~ular ca3es for lnjmctlon are muxeratcd in Art:-
cles 4664-4668, inclusive. Ar,tfele 4663 speclfios that 8
“Tha prinCiplos, pmctlce and procedure gov-
crni~~ courts of eq~~ity shall govern prooccd~s
l~,lnjunctions vherl tha 3me cre AOk in oonf~fct
with the provisions OS this title OF other law."
Unqueetionebly tha LoSislatwe 1i3cyprovide remdies
by Injunction against comon nuiawces, and my authorize
abatenent of such nuisances by injunction. Valllrrir v. State,
(C&i,) 173 3. tr. (26) 731, And such injunctions are riot puui-
tive of crime but am? preventive of public or private injury.
~njwctiom, 24 Tex. Yur., 71, 1 49, n. 20.
I?utx? v. Gunn, (Cd. ) 11.3 S. ij’. 354, held that the
rlr-ht to a%& nuiaaacca fs Q, veil ostcbllohed doctrl.ne of
sqhtg coLIrt3, and is based on the anxlm th?t tho owner of
property mu3t so u3c it as Aot to szatc~iallg injure another.
A lawful business my be conducted so a.9 to bcconc a nul%xlce,
in which case the ono Injwed Chwcby my enjoin the contin-
uunce of the business in such a xay. Block v, Pcrtittn, (C.A.)
b
:.: Honorable RoSer Q. Evans, paSe 9
165 9. W, 504.. So.lt has been held that an lnjunotian will
i
be nanted in behalf of the state to abate a pub110 nuisance
which Is an Injury to the property or civil rights of. the pub-
lic at 1arSc and which it 2s her duty, as agent of the public,
to prevent. State v. Goodnl?ht, 70 Tex. 682, 11 9. W. 119.
w of Balton v. Centrai%&%, 33 3. W, 297; State v. PC?;-
teroon, 37 9. N, 478.
The rlSht to abate a nuisance does not nscessarily
depsnd on the cxlstence of provisions of the penal code de-
fining the act Bought to be enjoined as offense and prescTib-
lng fine or Imprprisorxxmt therefor. Hetrich v. Stnte, (Clv.
App.) 87 3. W. (2d) 887. But where sstatute does not au-
thorize injunction to abate a public nuisance, the State must
plead and prove that the business as conducted HCSa nuisance
in fact, otherwjiso she 2s not entitled to an injunct2on. All
Texas Rac>zF&estn, v, State, 82 S. W. (2d) 151.~ at psSe 197
im’d., !q 9, Gi-gz&n%r In this case an 2njunctLon wan
denied because the State want on the theory that bett2ng on
the results of do3 races under par2 mutual system was a nui-
sance por so and prohibited by tho earzbline statutes. The ap-
pollate courts hold that the Gambling statutes d2d not apply
and were therefore 2nappl2cable.
Aad the Sovernment nsy sbate a nuisance, whether
or not the owners have been guilty of crlno. Mur h. v. tJ.S,,
272 u. 3. 630, 47 9. C. R, 218, 71 L. Ed, 446,
Thus it has been hbld that health authoritfcs may
mainta2n su2ts in equity to enjoin or restrain acts which are
a menaae to the health of the public, even beifors actual in-
jury has been inflicted. Rcalth, 39 C.J.S. 861, b 36, notes
37, 38; Health, 29 C. J. ]?.258, n, 87; liuisanccs, 49 C. J,
759, n, -j-p; 802, n. 41. Nor 1.3 en inja%ii%xcluded
because of the penalty provisions 2n a statute, supra.
In Cprdwoll v. Austin, (Galveston C.A. 1914), 168
3. W. 385, the court heliE%-the Acts, 33rd Le@slatura,
ch, 47, pv.nishirq tke pollution of any ue.tcr aourse by the
discharge of any ser?age therain, and providing thnt on con-
viction thn county court shzll issue an injunotlnn enjoiniw
the person or corporation responsible for the pollution from
a further aontinuance thereof, does not Oeprfve the district
court of jurisdiction to preventand suppress nuisances by
Honorable Roger Q. Evans, page 10
injunction. The appellant CQntended that “the county cdurt
alone had jurisdiction” to issue an injunction, “We think
it clear,” said the court, “that the Legislature in adopting
the Act did not attempt or intend to Interfere with the ex-
erolse by the district court of Its general equity jurisdic-
tion to prevent and supprasa nuisances by means of the writ
of injunction. At most the remedy by injunction conferred
by the Act upon the county courts, in only cumulative of the
remedy conferl?cd by law upon and resting in the district
courts. Certainly it cannot be held that the Act deprived
the district courts of jurisdiction, Tho asaf+nmcnt and pro-
positions are wI.thout merit and are overruled.’ The Cardwell-
Austin case has bcon cltod with approval in recent declsl.ons
by the Supreme Court.
Goldsmith and Poval.1, ct al., v. State, (Dallas
C.A. l$h?)~ S. k’. (2m34, wr 8. denied, was a suit by
the State to enjoin the defendants from polluting tho waters
of tho Neches River because salt water from the defendants’
wells entered into the river, and that the dafendcnts tltnea-
“,~;;t further pollution of tho public water cour$c. The oout
1%creation of such nuisance, they
may be jGbV3d in a coxznon action, an action in
equity fop injuncti.on, against the defandonts whose
separate and individual acts resulted ln the zame
Honorable Roger Q. Evarzs, page 11
general consequence of wrong.” (mphasls ours)
In F3 Parte Huy;hes, (1939) 133 Tex, 505, 129 S. W.
(26) 270, our suprame c ourt refused to enjoin the lnfractlons
of our usury statutes because the nuisance though it affect-
ed the “rights of interest to sona pLU?tlCulRr Group, even
though that group may be of I&I?@ proportions’ (at pace 277,
2nd column) dld not affect the property or alvll rights of
the public at large; in that the usury laws c??cate only p,~l-
vate, not public, rlghto. I&, Justice Crlte, speaking for
the court, at page 274, naidt
“Our courte of equity, ns such, have no juz-
lsdlctlon to antartaln sulLts to enjoin the coz-
mlaslon of acts mme1y because such acts comtl-
t&i0 crimas or yeml offenses unilor penal lau3.
This Is because equity la not concerned with the
enforcement of penal or crlr;llnal statutes. WhE?n
the State, throuh its proper officers, invok;os
tho jurisdiction of a cou-t OS equity to abate a
nuisance, It must bo show:1 olthcr that the action
1s darcctly authorized by aor.!3 constltutioxl OP
staGGory law, or that EL& nuiccrnce 1s an injury
to the property ok clvll rights of thz public at
large, -- that is, to the public gouerally, . .,
(clt Fng authopltlcs) .”
In Crowder v. C-mhzm, (CA.) 201 3. W. 1053, 1055,
the court saldr
“It is well settled that, in the abccnce of
soms stetuto specifically uuthorlzlng the same,
an ln,jur.Gion will not lla to restrain tha viola-
tion of a penal statute, sIxply because th3 &cIi
enjoined lo dsnounced as an oSfcnse, but that nn
tnjuxtlon will lie to rcstrultn the act, cvcn though
lt Is an off’ensc, if it constl.tutes ,a public nui-
sance under tho oomon law, ”
And tho court mast be satisfied that ths antlclp3tcd Injury
1s lminent
1 33, pngo end
446,certnln
n, 19. to occur, Nulnancss,
-- 31 Tcx. Yur.,
._.. .,.I’, ,i
Xonorable Roger Q. Evaaa,~p3@3 12
The State my sue to abate a public nul3ance, pro-
vided the rights of the public at large are endangered of be-
ing injured. Thus In State v. Patterso& (1896)1.4 Civ. App.
465, 37 9, W. 478, the court at pa@ 479, said:
".,. courts of equity hsve urisdiction to
abate public nuisances La ,.. well established
.** (oitinz authorities) Rut it doea not aecei-
earliy foliow from the facts that a comon ga;am-
ing house is a public nuisance, and that court3
of equity have jwiodlction by injuaotlon to abate
a nuisance, that such jurlsdictlon ~111 be exer-
tioil to rest;tyaln the coiltinumce-of on
trade, the abntcmont of a nuiswcc, or the prose-
oution of a dmgelTOu3 enploymnt; but It3 powem
to do so in such cases bclon.gs to the &moral powcra
possessed by courts of cquL,ty to.prcvcnt Isrepar-
able mischief snd obvieto damgas for which no
a~dequate rwrody exists at law. . . . (citing flu-
thoritles) It is onlv rrben p~oaertg or civil
Honorable Roger Q. Evans, pace 13
the'acts constituting the offense no coznpensatlon
for such lajwg, courts of oqulty ~111 interfere
to prevent such an Injury, notulthatandlng the
comaisslon would constitute a crlninal offense,
not because it would be a crina, but because the
injury to such rights would be lrrcparable. It
cannot be sald that such lnterferenoe by & court
OS equity is an Invasion of the domain of the
criminal law, for no crime has been cormitted
where equity interposes Its erm for the protoo-
.tiOIl Of pXOpOl?tyOP CfVfl l'i$htS. In C?XtendilI~
Such prOtcCtlOn, it may prewnt a Crin~; but, as
no one hg & Fight to comLt or4me, no olle ohould
be hG&Pdto CoDplain that he is reatzalnod from
lts comissim, r!hcn su.ch roetrair,t hpa boon ex-
ercised in the jurisdiction of a court for the
pwposs of preventing hln from lrrep2rabI.y lnjur-
lng anothor In his proportg or clvll ri&ts. But
courts of cqulty never lntcrfcro for the purpose
of acts constituting crino bocouoe they fm crti-
1~1, for they have nothing to do w5.th trim as
SUCL Thclr interposition is solely fop the pi*o-
tection of proqerty 02 oivlX rl$ts; and, the
only GlsCln~tlon b&w-en c pH.vate and a public
nuloanco be&as that the one 1s cn lrjury to such
riefitn of an igdividu%l and the other to trio
rights of tho public at large, ‘tho same princi-
ple must guide tho interforeace of the oourt in
both cases, and that prlnclplo is this : whether
the extent oT thG da~ifige and lnjbwy be such as the
larf will not afford an adcguato and oufflckat
rercody.' Attorney Genoml v, Sheffield Gas Con-
sumrsl Co., 19 Eng. Law & 6~. 644. Thwefore,
throwh her ~rol;e_r_oPf~~er~;~~~.~:s
rjT0. cous‘t-ol:.d-d'-A-
Q(li~fl;Vto ,$:j:j,f‘g-=~
.--- she Fz3t &IV t!lnt nl?sh i~uia~~zcc
13 an in$i?,ry to the ~ZZ~iZGZiXliS~i!~~t3 0.T
---y~Q-ggjg~
the ~_ ,q-----------
'TTf3 it 3,s her i;ur;:r,s the
aJql.t of t&3 puarc, co Jy~r~* l , * F ;1 r ,:;p EZi3
OUT}
In I!ebbln v,>Teir YoP&, 291 U.. 9. 502, 54 9. Ct. 505,
507, 78 L. EdTi%?jpy iii{. 146y, lfti. Just fee Roberts pert-
inent ly observed;
Honorable Roger Q, Evans, page 14
“The Constitutiod does not aecura to any one
liberty to conduct hFs business in such Sashion as
to inflict lnjury~upon tne publfc at large, or up-
on any substaatial group of the people.”
The late rovercd Chief Justice Nelson Phillips had the same
thought in mind whon in S nn v. City of Dallas, (1921) 111
Texr350,x235 S. It. 513, -f&i, he said:
“The pollco power is fouhded ia public noc-
essitg, and only publLc necessity can justify its
exercise. The result OS its oporat1on is A2Itur-
slly, in most instances, the abridfgmnt OS pri-
vat0 3?tg11ts. Private rights OFO never to be sac-
rificod to a greater extent thah necessary. Thwe-
Sort, the rgturn for their sacrifice through the
e,xerclse OS the police povcr should be the attain-
ment of som .pubZLc objact of aLlCSiciont necessity
and importanca to juotQ varrant the exertion of
the pokier.
“Since the right of the citizen to use his
property OS he chooses so long as he harm nobody,
is mei iP_hei'~At and COAstLtutior?i?l ri&It, the PO-
lloe paver cannot be Lnvokod for the abridg;zant
of a particu3nr use of prtvute property, unless
such use reasonably endangers or threatens the pub-
lic health, the Eublic safety, the public cohort
or welfare. ... (Enphasiu'ours)
Cattle 3ufforing:' frow a dangerous, fnfeotloua, or
cozmmlcable disease are public nuisances at co-Don law. A
nulsnncs at comon lax< could not be lc~alleed. People v31
ArL&?r3oa, (1934) 355 111, 289, 189 pi. E. 338, ai;-'iZET~.
In cO!21. V. 3[;lCnn-L, (1913) 240 Pa. 21*h, 87 A.
605, 47 L. h.?.r(‘3y)-@(;j, the Pennsylvania Suprem Court
Honorablo Roger Q, EvaAs, pnge 15
he.ld the pollution of a stream the title to the bed of which
is in the riparian owners
. . to be a pub110 nuisance, tho POAA-
SylVcAi8 LegislatuF% having t+We it a misdex?mnor punlsMble
1 by Sine or lnprisonraont to pollute any of the vatsrs IA that
stats, the court held thati injunction lies against tha pol-
lution of a stream In such a manner aa to CoAotitutc a pub-
310 nuisaAce, saying:
”
.., Because se~!go is the most officlent
medium for the BisseninatioA of infecting germs,
uhlch do their deadly work in ouch an iASiAite
vcrlaty of Insidious ways, not at all dcpenfknt
upon Sroe access of tho public to the stroen which
tha germs pollute, it cnn~ot bs said that the
tripwian o:mrs alone have an interest in the
stream* ’ l.hcn this doleterlouo substanco pollutes
any running stream the public hcslth is endtin$?red
thereby. The infection from which the rPpsrLa\n
ol;ner hifilsolf may percdvonture escape ray never-
theless in a hundrod ways, Ghxough his Innocent
acts, sprcnd throwh a co.~int.u~2ty;for he no ~j;ore
than any othsr, Lives to hinaclf alone. . ..‘I
W-LSPC the property rights of nsny cltizcns are in-
volved, it is proper for the government on their behalf to
Invoke pouers of equity, end the injunctive pocess my be
i~volml k?hcn the health or very existence OS the people is
menaced by the deprivation OS esscntU.3 Sood or by service
of such food in a coutan@atcd stats. ILLso equity has the
inherent power to restrain threatened nuisances dnARcrous to
the health of the whole community, this boicz an exception
to the erincicle that a court of couity has no jurisdiction
ia msttk3 of-crime. State V, RetGrk iiil.2~ Cs; (IZcv Ycrscy,
1935) 179 iitl, 116. In that case the ~0uZ~~r.t pago 121)
“This principle should not be extended be-
yond its sound constitutional basis. The po;!cr
here ezorcfsoc? is inherent in courts OS equity.
Equito.b,le jcrlsdictica has ah~xga been cxcrcissd
to restrairl tixpsteaed nuiennccc d.angcro3os
-...-- to
Donorablo Roger Q. Evans, page 16
the health of the whole oomnunlty; Ita exercise
antedncos our Constitution. In Heddea v. Rand,
supra, Justice Rellsch, quoting from State v. Uh-
rl& 14 MO. App. 413, sets forth the grounds Par
equitable interposition in cases of public nui-
mncea : ‘“(1) To restrain purpreoturcs of public
highnays or navlSat5.0nsr +*+ (2) To restrain
threataned nuisances dangerous to the health of
the wholo community. ***’ (3) To restrain ultra
vires acts of corporations Injurious to public
ri@G; ti end that the exeralse of equity jurisdic-
tloti Iti these three classe~s of cases is an excep-
tion to the rule *** that a Court of equity has
no jurisdiction in matters of crime.’ In Hutch-
inson V. Board of Health of City of Trenton, 39
M, J. Eq. 569, this court sustained a decree
enjoining the &lscbarSe into a water ooursc,
throu$ a pipe, of filth and offensive matter
from 8 hotel. ..,
“Roreover, the milk business , . . is affect-
ed with a public interest) and it is the settled
rule in this state that equity m,oyIntervene to
reotrsin a course of oonduat, in respect of a
business OS this character, vhlch tonda to affect
the public lntcrest injuriously. . . . (citing au-
thoritics) Where the property ri&ta of many
citierna are involved, it is proper for the gov-
ernment won thoi.r behalf to invoke the Dover3
of equity; Pomcroy*s.Equitabla Rcaadiss;[~ 480.
A fortiori, the injunctive power may be invoked
when tho health 05 very existeuce oc?he neoplo
in man!xe~~~tion 01’an esscn’iaLlyood
comuodity, Or it8 SerVlCe in a COntXlj~:j.n~ted State."
-@mphas13 Ours)
All those uho act together for the ultimate purpose
of sclllng dlaez.eed meat to the public for human consumption
may be enjoined a8 such a business 13, in our OpinlOn, a pub-
lic nuianncei
The sale OS Caftla such Rs you describe for slaught-
or to be sold as food for huean consumption certainly constl-
tutes a menace to the health of the citizens. Such a business
---
Honorable Roger Q. Evans, page 17
Is, our opinion, a public nulsancc, ma, ~8 gou state, AA-
in
less enjoined from being sold for huma consumption would
cause BA epidcnic of disease.
The State Board of Bealth and the State Health Of-
ficer have Eonera supervision and control of all matters
,pertainin to thd health of the citizens of this State. See
Artides &418d, 4420, 4421, 4446.
While as far as pOp0m.a cases in Texas are con-
cerned, rellef OS the character contemplated has not been
granted or denied upon the exact facts disclosed by your let-
ter; it .dces not f,ollow by any mseas that the above cited
precedents or authorities are ACt applicable or controlling.
Precedeuts illustrate principles. They serve to den;onutrate
how and uhcn they have beeu applied, The true precedent, how-
ever, is the correct pritMplo applicable tc the facts OS a
particuLar case. Courts should be “swift and fearless” to
protect the health of the aitieens,
To limit the Statc solely to the prosecution of
those who violate the public health 2GWSof Texas means that
the state would be cCmppllk3dto wit until the hcolth wmce,
dincorafort, ill-health and perhaps d.eath, Is actually pwscnt,
i
To be of real. value health authorities must huve authorlty to
, take, ad the couvts should aid in taking OS, such action as
is nccossa~y to provent a health mnsco which is roosonsbly
i likely to occur under the facts and clrcumtances applicable
thereto.
1
I Trusting the foregoing fully answers your inquiries,
1
I. very truly yotws
A,d---
TORBIZX
GEIkRALOPITEY&S
David Kuntch
Assistcint