Oak Downs, Inc. v. Schmid , 1936 Tex. App. LEXIS 723 ( 1936 )

This is an appeal from a judgment of a district court of Dallas county, on a suit by appellee, R. A. (Smoot) Schmid, as a citizen of Dallas county, to enjoin appellants Oak Downs, Inc., Winfield Morten, Jackson Thurman, F. G. Cameron, and E. W. Morten Realty Company, a corporation, from operating the pari-mutuel or certificate system of betting on dog races at their dog-racing plant in Dallas county.

The petition of appellee was filed in a district court of Dallas county, June 21, 1935, and prayed for a temporary writ of injunction. All parties made appearance, either in person or by their attorneys, on the date fixed by the trial court for hearing, and, after a full hearing, the court, on June 28, 1935, issued the temporary writ of injunction prayed for, and appellants were restrained from operating the pari-mutuel or certificate system of betting in connection with the running of dog races at their said plant. The appeal has been duly perfected to this court.

On the motion of appellants, the appeal was advanced and duly submitted on August 5, 1935. At the time of the submission, it was agreed in open court that the appeal would be submitted on the record without the filing of briefs or the making of oral arguments, and the decision of this court would await the decision of the Supreme Court on a similar case, involving the same propositions of law, then pending in the Supreme Court. The attorneys, therefore, are not subject to criticism for failure to file briefs in a case as important and with a record as voluminous as the one in the instant case.

On May 19, 1936, appellant Morten Realty Company filed a motion, praying that appellants be relieved from said agreement, to delay judgment in this court, for the reason that, when the agreement was entered into, appellants, and appellee as well, believed that only a relatively short time would intervene prior to the decision of the Supreme Court on such case, and prayed that this court at once proceed to judgment on this appeal. This motion was granted. This matter is stated only to show the reason for the long delay of this court in rendering a decision on a case required to be advanced under the law.

On the same date, appellant Morten Realty Company filed a motion in this court, calling attention to the fact that the record shows that the temporary writ of injunction was issued by the trial court, without requiring appellee to execute an injunction bond, conditioned as required by law; that appellants filed a motion in the trial court, to withhold the issuance of the writ of injunction, until appellee had executed an injunction bond; that this motion was overruled by the trial court and the injunction was issued without an injunction bond; that, on appellants' motion, the court required appellee to file the usual cost bond executed by a plaintiff in a civil suit. Appellants prayer in this motion is that the injunction order and writ of injunction issued under such order be declared void, and the injunction dissolved; and, in the alternative, that this court fix the amount of the injunction bond and, in the event that appellee failed to execute such bond, that the order and writ of injunction issued in obedience thereto be declared void. This motion will be considered as one of the issues of the appeal.

Appellee, sheriff of Dallas county, instituted this suit solely in the capacity of a private citizen, under articles 4664 and 4667, R.C.S. The former article declares that: "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, * * * 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."

A provision of the latter article is that: "The habitual use, actual, threatened or contemplated, of any premises, place or building or part thereof, for any of the following uses shall be enjoined in the suit of either the State or any citizen thereof: 1. For gaming or keeping or exhibiting games prohibited by law." Another provision is that: "The Attorney General or any district or county attorney may bring and prosecute all suits that either may deem necessary to enjoin such uses, and need not verify the petition; or any citizen of this State may sue in his own name and shall not be required to show that he is personally injured by the acts complained of."

Article 4666, R.C.S., directs the Attorney General, or the district or county attorney, when either of said officials has reliable information that the nuisance defined in article 4664 exists, to institute suit to abate and enjoin the commission of same.

Appellee's petition shows that Robert L. Hurt, the district attorney of Dallas county, at a suit instituted by appellants, in another district court of Dallas county, had theretofore been enjoined from performing any of the duties enjoined upon him by the provisions of said articles 4666 and 4667, in so far as such official might deem it his duty to have the place where appellants were operating machines and devices for pari-mutuel or certificate gambling on dog races, instituted at their plant, declared a nuisance and the operation thereof either abated or enjoined. Appellants presented their verified petition to the judge of said other district court, in which it was shown that they intended to operate the parimutuel or certificate system of betting at their dog-racing plant in the county of Dallas, and that the district attorney was threatening to, and unless restrained would, attempt to perform the duties enjoined upon him by the provisions of article 4666, and that the district judge, without notice and without knowledge of the district attorney, had issued a temporary writ of injunction restraining him from attempting to perform such duties. This former suit was pending on appeal in this court at the time the instant suit was instituted, and the district attorney of Dallas county was restrained from instituting such a suit. The learned judge who granted the temporary writ of injunction acted on the authority of the decision in the case of All Texas Racing Ass'n et al. v. State,82 S.W.2d 151, 153, by the San Antonio Court of Civil Appeals, which holds, in effect, that gambling on dog races is not prohibited by any statute of this state.

The petition in the instant suit further alleges that the operation of pari-mutuel or certificate betting is in violation of article 655a a of the Penal Code of Texas (Vernon's Ann.P.C.), and is especially prohibited by articles 624, 625, 626, 627, and 628 of the Penal Code, and in effect alleges that the pari-mutuel or certificate system of betting is being operated nightly at appellants' plant in Dallas county and, unless restrained by a temporary writ of injunction, will continue to operate in violation of such criminal statutes.

Appellants answered in due order of pleading, by a plea in abatement, because of the pendency of the suit they had instituted against the district attorney in another district court, alleging that the cause of action instituted by appellee was the same cause of action instituted by appellants in the said other suit. They further answered, by general and special exceptions, and by special plea, to the effect that they had the right to operate the pari-mutuel or certificate system of betting at their dog races, because such gambling was not prohibited by law. Their answer is very full and complete, but, in its last analysis, they rest their defense, on the merits of the suit, on the theory that betting on dog races is not a violation of law, and hence such betting cannot be enjoined under the provisions of article 4667.

The questions deemed of importance on this appeal are: (1) Is the injunction void because of the failure of the trial court to require the execution of an injunction bond by appellee, as a condition precedent to the issuance of the temporary writ of injunction? (2) Has this court the power and should it fix the amount of the injunction bond and require its execution by appellee? (3) Did the trial court err in overruling appellants' plea in abatement, because of the pending suit against the district attorney in another district court in Dallas county? (4) Did the trial court err in refusing the motion of appellants to transfer this cause to the district court is which the suit against the district attorney is pending, and consolidate same with said suit? (5) Is the temporary writ of injunction authorized by the statutes of this state? These questions will be discussed in the order above named.

Is the temporary writ of injunction void because no bond was required as a condition of its issuance? No property right of appellee has been invaded or trespassed upon by the activities of appellants in their operation in connection with dog races at their plant, the system of parimutuel or certificate betting. Under the rules of equity, therefore, appellee had no right to maintain this suit, because he does not show that he is personally injured. Such right exists only by virtue of the provision in article 4667, supra, which, in addition to the duties placed upon the Attorney General, or the district attorney of Dallas county, gives to any citizen the right to "sue in his own name and shall not be required to show that he is personally injured by the acts complained of." When a citizen avails himself of such right and institutes the statutory suit to abate or enjoin the operation of the character of nuisance defined in article 4664, supra, he does so as the legislative designated agent of the state, and as the representative of the public. Such is the express holding of our Supreme Court in Ex parte Allison,99 Tex. 455, 90 S.W. 870, 2 L.R.A.(N.S.) 1111, 122 Am. St. Rep. 653, speaking through Judge Gaines.

Articles 4664 and 4667 are enforcement statutes, designed to make certain that prohibited gambling in this state shall not operate. The Legislature did not deem it sufficient to rest the enforcement of antigambling laws on the usual method of prosecuting the offenders in the criminal courts, but placed in the hands of its prosecuting officers, by the enactment of these statutes, the very potent weapon of the injunction powers of civil courts. Neither did the Legislature deem it a sufficient guarantee to the public to rest this powerful weapon of law enforcement alone on the initiative of the state's prosecuting officers, but gave the right to any citizen of this state to invoke by suit, in his own name, the same power of the civil courts given to the prosecuting officers; and it is the duty of the courts to give full recognition to the legislative intent clearly manifested by these enactments.

The wisdom of the enactment, giving a citizen equal authority with the designated prosecuting officers, to maintain this character of suit, is forcibly illustrated by the conduct of appellants in the instant case. Appellants owned a dog-racing plant, but evidently did not believe that the innocent sport of dog racing was a sufficient allure to the public to make such sport remunerative, but they apparently believed that the glamour of gambling on this innocent sport, through the pari-mutuel system of betting, would be sufficient to attract the public, and thereby, through such means, make dog racing a remunerative business. Appellants, in order to make themselves secure in such undertaking, instituted a suit against the district attorney, and secured, ex parte, a temporary writ of injunction against either a criminal prosecution or a civil injunction suit. With the district attorney thereby rendered impotent to proceed against them, appellee accepted the duty placed on him as a citizen, and instituted the instant suit.

Appellants do not contend, if the instant suit were instituted by the district attorney in the name of the state, that an injunction bond would be a prerequisite to the issuance of the temporary writ of injunction, but claim that the question is entirely different when a citizen, clothed with the same powers as the district attorney and authorized to act for the state to accomplish the same purpose, is not exempt from giving a bond before they can be enjoined from committing acts, which the trial court decreed to be a nuisance under article 4664. We cannot agree to appellants' contention in this respect. To do so would place a great handicap on a citizen in bringing the suit, and would deny full recognition to a legislative enactment. There is nothing in article 4667 to imply that a bond should be required. Do other statutes compel the giving of a bond?

Title 76, R.C.S., applies to injunctions; article 4642, the first article of said title, provides that: "Judges of the district and county courts shall, in term time or vacation, hear and determine applications for and may grant writs of injunction returnable to said courts in the following cases." Then follow the well-known subdivisions, giving distinct grounds upon which the trial courts are authorized to grant injunctions. All of these grounds relate to private suits between private parties, and under none of them is a court authorized to entertain the instant suit or to grant the instant writ of injunction. Articles 4647, 4648, and 4649 relate only to the granting of a temporary writ of injunction, or restraining order, on an ex parte hearing, and govern all of those cases that arise under one or more of the specified grounds for granting an injunction under article 4642, and do not relate to the particular cases provided for under articles 4667 and 4668 of the same title. Article 4647 forbids the judge to grant an ex parte injunction, except on a verified petition containing plain and intelligent statements of the grounds for such relief. Article 4648 provides that, if it appears to the judge to whom the verified petition is presented that the facts stated will entitle the petitioner to the writ, the judge "shall indorse thereon or annex thereto his written order directing the clerk of the proper court to issue the writ of injunction prayed for, upon such terms and under such modifications, limitations and restrictions as may be specified in said order. The judge shall also specify in such order the amount of the bond to be given by the applicant as a prerequisite to the issuance of the writ." Article 4649 provides for the execution of the required bond and describes the bond to be executed. Article 4650 provides that the plaintiff, presenting the petition for injunction, shall then file such petition, together with the order granting the temporary injunction, and directs the clerk to docket same, unless the petition is filed in a pending suit.

Articles 4648 and 4649, the only articles in the statutes that make a bond a prerequisite to the issuance of a writ of injunction, clearly refer to temporary writs of injunction, granted ex parte, under one

of the subdivisions of article 4642. Oil Lease Royalty Syndicate v. Beeler (Tex.Civ.App.) 217 S.W. 1054 (writ of error denied). These articles clearly do not refer to the particular class of injunctions authorized by article 4667, which calls for an adjudication that the defendant in a suit authorized by such article is guilty of maintaining a nuisance under the provisions of article 4664, as a prerequisite to the granting of the temporary writ of injunction. In the instant case, there was a full hearing accorded the appellants, and under such hearing appellants were adjudged guilty of maintaining a nuisance, and the temporary writ of injunction was then ordered to be issued. We think the court did not err in refusing to require an injunction bond, and the motion under consideration is overruled.

The alternative contention of appellants that this court fix the amount of such injunction bond and require appellee to execute same is refused, for the reason that the giving of any injunction bond, after a hearing and an adjudication that appellants were guilty of maintaining a nuisance, is not required.

Did the trial court err in overruling appellants' plea in abatement, because of the said pending suit in another district court of Dallas county against Robert L. Hurt, district attorney?

"There is no principle better settled," says 1 Amer.Jur. § 14, p. 27, "than the general rule of law that the pendency of a former action in a court of competent jurisdiction, within the same state or jurisdiction, between the same parties, and involving the same subject-matter and cause of action, wherein all the rights of the parties thereto may be fully and finally determined and adjudicated, may be asserted as a ground for the abatement of the second action. The identity in these particulars should be such that if the pending suit had already been disposed of, it could be pleaded in bar as a former adjudication of the same matter between the same parties and, unless each of these elements is present, the pendency of one action will not operate to abate a subsequent one." This is the common-law rule and, after some confusion in decisions, it is now recognized as the rule in this state. Cleveland v. Ward, 116 Tex. 1,285 S.W. 1063; Benson v. Fulmore (Tex.Com.App.) 269 S.W. 71; 1 Tex.Jur. pp. 93, 94, § 67, and cases cited in notes.

A mere casual examination of the two suits will disclose that the cause of action alleged in the former suit is not identical with the cause of action alleged by appellee in the instant suit, that a judgment in one suit would not be a bar to the other suit, and that the parties are not identical. The prior cause of action was one filed by appellants to enjoin the district attorney both from prosecutions in the criminal courts and from instituting proceedings to declare appellants guilty of gambling on dog races, and to interfere with them in the pari-mutuel system of betting.

The instant suit is a statutory action, instituted by appellee as a private citizen, in behalf of the public, to prevent the maintenance of a nuisance by the operation of pari-mutuel betting on dog races. The two suits are fundamentally different; appellee was neither a party plaintiff or defendant in said prior suit, and it is elementary that, not being in any way a party to said suit, he would not be bound by any judgment entered therein. The contention on this question is overruled.

There was no error in the court's overruling appellants' request to transfer the instant suit to the district court in which the prior suit was filed. That was a matter, at most, resting in the discretion of the trial court, and no abuse of discretion is shown. This contention is overruled.

Is the action of the trial court in granting a temporary writ of injunction authorized under article 4667, supra? The effect of appellants' answer is to admit that its dog-racing plant is a place where persons assemble for the purpose of gambling under the pari-mutuel or certificate system of betting on dog races. It is held, without exception, that betting on races of any kind under the pari-mutuel scheme is gambling. Hurt v. Oak Downs, Inc. (Tex.Civ.App.) 85 S.W.2d 294, 296; 27 C.J. 976. This admission places appellants' plant in the category of nuisances defined and condemned in article 4664, supra. However, before such nuisance could be abated by injunction under the provisions of article 4667, supra, the gambling carried on at appellants' place must be a species of gambling prohibited by law. The controlling question for determination is: Do our gambling laws prohibit betting on dog races?

This question was before the Court of Civil Appeals at San Antonio, in the case of All Texas Racing Ass'n v. State, supra, and in a very elaborate opinion by Chief Justice Bickett, then of that court, it was held that gambling on dog races violated no anti-gambling statute of this state. The question was up before this court in the case of Hurt v. Oak Downs et al., supra, in which it was held by the majority of this court, in a very elaborate opinion by Associate Justice Looney, that betting on dog races is prohibited by articles 624 and 625 of our Penal Code. A writ of error has been granted in each of these cases, and they are now pending before the Supreme Court. In the absence of a decision by the Supreme Court, the majority adheres to the opinion of this court in the Hurt Case, and adopt the reasoning and authorities cited by Judge Looney in such case, and again hold that betting on dog races is in violation of articles 624 and 625 of our Penal Code. It would be a useless consumption of time to reargue this question.

It necessarily follows that, in the opinion of the majority of this court, the judgment of the lower court should be affirmed, and it is so ordered.

Affirmed.