Parker v. State , 1948 Tex. App. LEXIS 1083 ( 1948 )

McDonald, justice.

This suit was brought by the State of Texas, acting by and through the County Attorney of Parker County. The petition recites that the suit is brought pursuant to authority granted by Article 4666, Revised Civil Statutes, for the purpose of enjoining a common nuisance as defined by Article 4664, existing upon the premises described in the petition. It is further alleged that the suit is of a civil nature, and that jurisdiction thereof is conferred by Article 4667. The substance of the charge is that defendant conducts a dance hall in Weatherford, in said county, that it is a public place to which the public commonly congregates for pleasure, and is a place to which persons resort in assembly of two or more persons to the room for the purpose of drinking intoxicating liquor. Other allegations are to the effect that people resort there for the use of loud, profane and obscene language, and that the place is a common nuisance as defined and declared by Article 4664. The prayer is that the defendant, his agents, etc., be enjoined from using, maintaining and assisting in using and maintaining the premises as a place-where persons resort to drink intoxicating liquor in violation of the laws of the State of Texas. It is further prayed that the Court abate the nuisance and enjoin the defendant from maintaining the same, and' that the Court order the premises closed for one year from the time of judgment, unless the defendant or the tenant or the-lessee of the premises makes bond in the-penal sum of not less than $1,000 nor more than $5,000 payable to the State of Texas and Parker County, conditioned that persons will not be permitted to resort to such place in assembly of two or more persons for the purpose of drinking intoxicating liquor, and for dancing, and that the Court issue a writ of injunction perpetually-enjoining the defendant from maintaining said nuisance in said place, and for general and special relief.

Trial was to the court without a jury. The judgment finds that all of the material allegations of the petition are true; it adjudges that the defendant has maintained a nuisance in the form of a dance on his property; and it enjoins him in the following language:

“ * * * defendant is hereby enjoined and restrained from maintaining same and from operating said dance or holding any form of dance on his said premises, for a period of one year from the date of this judgment, and defendant is further enjoined from the use of said premises for a period of one year, unless defendant or the owner, tenant or lessee of said premises shall make bond in the penal sum of One Thousand ($1000.00) Dollars with sufficient sureties to be approved in conformity with law, payable to the State of Texas and Parker County, Texas, and conditioned that intoxicating liquor will not thereafter be kept, possessed and sold in said premises in violation of the law, and conditioned 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, and defendant is also hereby perpetually enjoined from maintaining such nuisance in said place, and that all the costs in this cause be adjudged against the defendant, A. J. Parker, for which let execution issue.”

Defendant has appealed.

Article 4664 reads as follows:

“Any hotel, rooming house or boarding house, country club, garage, rent car stand or other place to which the public commonly resort for board or lodging or commonly congregate for business or pleasure, where intoxicating liquors are kept, possessed, sold, manufactured, bartered or given away, or to which persons resort in assembling of two or more persons to the room for the purpose of drinking intoxicating liquor, or where intoxicating liquors are furnished to minors or to students of any educational institution, or where persons resort for the purpose of gambling, or for the purpose of prostitution, is hereby declared to be a common nuisance. Any person who knowingly maintains or assists in maintaining such a place is guilty of maintaining a nuisance.”

Article 4666 reads as follows:

“Whenever the Attorney General, or the district or county attorney has reliable information that such a nuisance exists, either of them shall file suit in the name of this State in the county where the nuisance is alleged to exist against whoever maintains such nuisance to abate and enjoin the same. If judgment be in favor of the State, then judgment shall be rendered abating said nuisance and enjoining the defendants from maintaining the same, and ordering that said house be closed for one year from the date of said judgment, unless the defendants in said suit, or the owner, tenant or lessee of said property make bond payable to the State at the county seat of the county where such nuisance is alleged to exist, in the penal sum of not less than one thousand nor more than five thousand dollars, with sufficient sureties to be approved by the judge tryng the case, conditioned that the acts prohibited in this law shall not be done or permitted to be done in said house. On violation of any condition of such bond, the whole sum may be recovered as a penalty in the name and for the State in the county where such conditions are violated, all such suits to be brought by the district or county attorney of such county.”

Although there is evidence concerning the conduct of patrons of the dance hall with respect to loud language and other matters, and there is evidence that defendant employed two peace officers to maintain order on the premises, it is clear that the suit for injunction is predicated solely on the ground that the place was one where persons resorted for the purpose of drinking intoxicating liquor. The allegations of the petition track the language of Article 4664, which declares certain named places to be a common nuisance, including those “to which persons resort in assembling of two or more persons to the room for the purpose of drinking intoxicating liquor,” and the opening paragraph of appellee’s brief in this court declares that the suit was brought in the name of the State, seeking to enjoin defendant, under the provisions of Article 4664, from conducting a dance hall as a place where persons resort for the purpose of drinking intoxicating liquor.

To dispose of one question, we find that the evidence is sufficient to warrant a finding that persons did resort to the premises “in assembling of two or more persons to the room for the purpose of drinking intoxicating liquor.”

Whether or not defendant’s dance hall was conducted in such manner as to constitute a nuisance at common law is not controlling here, because Article 4664 conferred no authority upon the county attorney to seek an injunction against the operation of the dance hall unless, as narrowed by the allegations in the petition, persons were resorting there, in groups of two or more to the room, for the purpose of drinking intoxicating liquor. In Trueheart v. Parker, Tex.Civ.App., 257 S.W. 640, an injunction was issued against the proprietor of a dance hall on the ground that the manner of its operation constituted it a nuisance, but that suit was not one brought by the county attorney pursuant to the authority granted by Articles 4664— 4666, but was brought by a nearby property owner.

Stated in a few words, the situation is this: Defendant operates a dance hall where persons resort in assembly of two or more to the room for the purpose of drinking intoxicating liquor. There is neither pleading nor proof to show whether sale of intoxicating liquor is prohibited or not in'the territory where the dance hall is located. There is neither pleading nor proof that any penal law relating to intoxicating liquor, nor any regulation promulgated by the Liquor Control Board, is being or has been violated. Under such circumstances, was the trial court authorized to issue the injunction described above? We think that he was not.

In construing the portion of Article 4664 which condemns as a nuisance any of the places named therein where persons resort for gambling, the Supreme Court held in State ex rel. Shook v. All Texas Racing Association, 128 Tex. 384, 97 S.W.2d 669, on rehearing, 128 Tex. 384, 100 S.W.2d 348, that the place would not be a nuisance within the statute unless the gambling carried on there was in violation of the penal laws, as distinguished from what might be considered gambling at common law. In State v. Duke, 104 Tex. 355, 137 S.W. 654, 138 S.W. 385, an injunction was sought under the provisions of an earlier but to some extent a similar statute. In concluding a lengthy opinion, it was said that the statutes under which the injunction was sought were penal, or at least quasi penal, in their character and were to be strictly construed; and the injunction should be denied unless the defendants in the suit could have been prosecuted and convicted under the applicable provisions of the Penal Code.

We do not hold in this case, however, that the statutory condemnation as a nuisance of the enumerated places where two or more persons gather for the purpose of drinking intoxicating liquor was intended, in 1923 when said Articles 4664-4666 were enacted, to be limited to situations where the drinking itself constituted a violation of penal laws. Said statutes were enacted in 1923, when the manufacture, sale, transportation and possession of intoxicating liquor, except under very limited circumstances, were prohibited by both state and national laws. At that time the policy of both state and national gover-ments was undoubtedly to suppress in every way possible the sale and use of intoxicating liquor for beverage purposes. When persons gathered for the purpose of drinking intoxicating liquor, as described in Article 4664, it would be a likely supposition that some violation of liquor laws had taken place, or were taking place at the time. The assembling of persons at such places for the purpose of drinking intoxicating liquor would probably produce, or at least encourage, violations of the laws prohibiting its manufacture, sale, transportation and possession.

Under present laws relating to liquor, however, there is obviously no general policy of the legislature to prohibit or suppress its use for beverage purposes. The citizens of a given area may, through local option, prohibit or restrict sales, but there is no longer in existence such a public policy with respect to intoxicating liquor as existed when both state and national prohibition laws were in force. It is elemental that the statutes of a state may declare and establish the public policy of the state. The manufacture, sale, transportation and possession of liquor is now permitted to the extent provided for in the laws relating thereto. The legislature having legalized the manufacture, sale, transportation and possession of intoxicating liquor, to the extent that the Liquor Control Board publicizes the collection of several million dollars annually from liquor taxes and licenses, it can no longer be supposed that the legislature maintains any general policy against the drinking of liquor which is sold in compliance with the laws relating thereto. In deciding whether there has been an implied repeal of a statute, we search for the intention of the legislature at the time it enacted the later legislation. So far as it is not inconsistent with or repugnant to the later law, we will leave the earlier law in force. To the extent that there is an inconsistency or repugnance between the two, we will declare that there is an'implied repeal.

In Trent v. Kennedy, Tex.Civ.App., 109 S.W.2d 327, the Court of Civil Appeals at Austin held that the above articles of the statutes, in so far as they related to intoxicating liquor, were repealed by implication by the Liquor Control Act, Vernon’s Rev.Pen.Code, Art. 666—1 et seq. This view was rejected by the Court of Civil Appeals at Waco in Parker v. State, Tex.Civ.App., 161 S.W.2d 319, writ refused; and by the Court of Civil Appeals at Eastland in Jeter v. State, Tex.Civ.App., 184 S.W.2d 716. The theory of the Austin Court was that the Liquor Control Act was intended to cover the entire field of regulation of the liquor traffic, that it was complete within itself, and that it superseded all prior legislation upon the same subject. For the purposes of this opinion we shall restrict ourselves to the holding that the Liquor Control Act impliedly repeals only such portions of Articles 4664-4666 as are inconsistent with or repugnant to the provisions of the Liquor Control Act. We shall undertake to follow the rules of statutory construction as they are stated in 39 Tex.Jur., pages 137 and following, where it is said, among other things, “The passage of a statute that is conflicting and inconsistent with, and repugnant to, former acts on the same subject, shows an intent to repeal such acts.”

Under the present laws, it is permissible to drink certain types of liquor on the premises where sold, if there be no local law against it, and if a proper permit has been obtained. Drinking at certain places, and during certain periods, is prohibited. The implication is that drinking at other places is not prohibited. The gathering of two or more persons at one of the places named in Article 4664 for the purpose of drinking intoxicating liquor no longer carries the suggestion which it once did that there has been, or that there is taking place, a violation of the laws relating to liquor. Within certain limits, intoxicating liquor may be transported or possessed in dry territory without violating the law.

That there has been an implied repeal of at least a part of Article 4664 can not be denied. It declares a common nuisance any of the places therein named if intoxicating liquors are kept, possessed, sold, manufactured, bartered or given away at such places. This provision is inconsistent with the present laws in so far as they permit the manufacture, sale, etc., of liquor at such places. In other words, it would be inconsistent to hold that the legislature intended to permit the sale of liquor at a place, and to provide for a license authorizing such sale, and that it intended-at the same time to leave in force a statute condemning such place as a common nuisance because liquor was sold there. In order to leave the statute in effect in so far as it is reasonably possible to do so, and at the same time to eliminate any inconsistency between the earlier and the later law, it should be said that a place where liquor is manufactured, sold, etc., may be declared a common nuisance only if such manufacture, sale, etc., be in violation of the laws, other than Article 4664, relating to intoxicating liquors.

The same holding is applicable, we believe, to the question of implied repeal of the portion of Article 4664 which declares any of the places therein named to be a common nuisance if two or more persons resort there for the purpose of drinking intoxicating liquor. There is no longer ground for declaring the place a common nuisance at the suit of the State unless the drinking is in violation of some law or regulation, other than the provisions of Article 4664, relating thereto.

It is not a controlling circumstance that the type of establishment involved in this case is a dance hall. If it were a restaurant, the dining room of a hotel, or an exclusive country club, or any place having a lawful permit to sell beer, the place could still be declared a common nuisance, and its operation could be enjoined at the suit of the county attorney, simply on the showing that two or more persons resorted there for the purpose of drinking intoxicating liquor, if appellee’s theory of the law is correct. Likewise, under appellee’s theory of the law, any such place could be declared a nuisance, and its operation could be enjoined, if it were shown that its patrons resorted there in groups of two or more and drank liquor which they may themselves have brought to the premises, even though it were not shown that any provision of the penal laws pertaining to the sale, possession,' etc., of intoxicating liquor had been or was being violated.

We.have carefully considered the three cases cited in appellee’s brief, and shall discuss them in order.

Green v. State, Tex.Civ.App., 49 S.W.2d 519, was decided before the repeal of the prohibition laws. Also, it was there charged that liquor was being given away and transported in violation of 'the law.

In Thurman v. State, Tex.Civ.App., 67 S.W.2d 382, it was charged, among other things, that liquor was being sold. That case also arose before the repeal of the prohibition laws.

We have carefully read the opinion in Hetrick v. State, Tex.Civ.App., 87 S.W.2d 887. If it be the holding in that case that a nuisance is proved by merely showing that the place involved is one where “persons resort in assembling of two or more persons to the room for the purpose of drinking intoxicating liquor,” without regard to whether the area is wet or dry territory, and without regard to whether any of the statutes, rules or regulations relating to the sale or use of intoxicating liquor are being violated, then we decline to follow it.

Appellee argues that the right to abate the alleged nuisance does not necessarily depend on the existence of a penal statute defining the act sought to be enjoined as an offense and prescribing a penalty, and that there is no constitutional right of use of property which would legally authorize its use contrary to public morals, public health, or common decency, citing Hetrick v. State, supra. The test here is not merely whether defendant has a right to use his property in a certain manner or for a certain purpose. The principal question is whether the county attorney is authorized to maintain this suit under authority of Articles 4664-4666. He is not given broad authority under such statutes to bring injunction suits simply because there may be involved some act which is contrary to public morals, public health, or common decency. This case is brought only under authority of the statutes just mentioned, and the case is limited to the provisions of such statutes. A strict construction will be given statutes of this nature, and the case will be limited to the allegations of the petition for injunction. General rules governing construction of penal statutes will be applied. Waits v. State, Tex.Civ.App., 76 S.W.2d 545.

We have also considered certain cases other than those cited by appellee.

In Sportatorium, Inc., v. State, Tex. Civ. App., 104 S.W.2d 912, 919; writ dismissed, defendants were enjoined from maintaining a nuisance as being in violation of Art. 614b, Vernon’s Ann.Penal Code, relating to certain endurance contests. The Court of Civil Appeals at Dallas, in a divided opinion, upheld the injunction as being in violation of Art. 614b, and also declared that the judgment was subject to affirmance because there was proof in the record that persons resorted there for the purpose of drinking intoxicating liquor. Justice Bond dissented, declaring in part:

“This act (referring to Article 4664) was passed in 1923, when it was unlawful to sell or possess intoxicating liquor, and before the repeal of the constitutional amendment relating to intoxicating liquors, and before intoxicating liquors were authorized to be sold and possessed in Dallas county, Tex., by vote of the people. It is no longer an' offense to drink one’s own liquor in public places in Texas.”

We have carefully read and reread the opinion in Parker v. State, Tex.Civ.App., 161 S.W.2d 319, writ refused. The court there does not discuss the distinction between drinking in a dry and in a wet area, but does point out that the dance hall was located in a dry area. Except for the one remark, “Johnson County is a dry area,” everything that is said in the opinion is as applicable to a situation existing in a wet area as to one existing in a dry area. The failure to observe such distinction indicates to our minds that the court there believed that any place, if it was one of those named in Article 4664, should be declared a common nuisance if two or more persons resorted there for the purpose of drinking intoxicating- liquor, whether it was in a wet or in a dry area. If the court intended to so hold, we decline to follow the holding. As said, the court makes no effort to distinguish between drinking in a public place in a wet area and in a dry area, and if there is a difference in the laws relating thereto, we have nothing in that opinion to guide us in our search for the distinctions to be made in such cases. We give particular emphasis to this opinion, because the Supreme Court refused the writ of error application, indicating that it gave approval to all that was said in the opinion. Nevertheless, we adhere to the views expressed herein.

Jeter v. State, Tex.Civ.App., 184 S.W.2d 716, followed the holding in Parker v. State, supra, to the effect that Article 4664 was not repealed by the Liquor Control Act, but it was there charged that liquor was being kept, possessed, sold or given away in violation of law. We find no quarrel with that holding, but it does not involve the same situation which we have before us.

We have written at length, because there is language in some of the opinions above cited which is not in harmony with the views we have expressed. Our belief is, despite our respect and regard for the authors of those opinions, that there is a degree of repugnance and inconsistency between some of the provisions of Article 4664 and the liquor laws presently in force, and that, to the extent of such repugnance and inconsistency, they must give way to the later laws. To give the fullest possible effect to both the older and the newer enactments of the legislature, it is our holding, as above stated, that in order to declare any of the places named in Article 4664 a common nuisance on the ground that intoxicating liquors are kept, possessed, sold, manufactured, bartered or given away, or on the ground that persons resort there in assembling of two or more persons to the room for the purpose of drinking intoxicating liquor, it must be alleged and proved that such keeping, possession, sale, manufacture, barter or gift, or drinking by two or more persons, was in violation of some penal law of the state or some regulation promulgated under authority of the laws relating thereto. There has been no such showing in this case.

The judgment of the trial court is therefore reversed, and judgment is here rendered in favor of, defendant dissolving the injunction ordered by the trial court, and adjudging that appellee take nothing by its suit.