Oak Downs, Inc. v. Schmid ( 1936 )

The only statute under which the appellee, R. A. (Smoot) Schmid, claims the right to bring this suit as a private citizen is article 4667 of our Revised Statute, which authorizes "the habitual use, actual, threatened or contemplated, of any premises, place or building or part thereof, * * * be enjoined at the suit of either the State or any citizen thereof * * * for gaming or keeping or exhibiting games prohibited by law."

The right to enjoin by a private citizen is limited to the prohibited games mentioned in article 4667 (act passed in 1905, c. 153). The right to enjoin by the Attorney General or a district or county attorney to abate a nuisance under articles 4664, 4665, and 4666, (acts passed in 1923) limits such right alone to the heads of the executive departments of the state; and provides that such suits shall be filed "in the name of this State." A private citizen has no right to enjoin a nuisance under the statutes relating to nuisance without showing existing rights of his own.

The primary question, therefore, in this case is: Is betting or wagering on dog races prohibited under our gaming statutes? The statutes expressly make it an offense to bet or wager at any game of cards, dice, or dominoes; at any table or bank; at any game of muggins, crack-loo, crack-or-loo; or at the game of matching money or coin; upon the result of any election; at any game of baseball or football; and, prior to the act of 1933 (see Vernon's Ann.P.C., art. 655a), on any horse race (Penal Code, art. 615 et seq.). It is the betting or wagering at the games, tables, and banks, expressly enumerated in the statutes, which are prohibited by law, and to which article 4667 is directed.

The Supreme Court, as early as McElroy v. Carmichael, 6 Tex. 454, and in all cases since that time, announces the rule that betting or wagering is not illegal merely as betting or wagering. An examination of all of the gaming statutes of this state fails to show that the Legislature, in the enactment of the several statutes prohibiting and penalizing games specifically described in the various statutes, betting on dog races, considered such betting as gaming, or keeping, or exhibiting games. It is obvious that dog racing is not specifically mentioned in the statutes; and, if such is a game prohibited by law, it must be construed into the words of general import following the specifically designated prohibited games, which reads: "If any person shall bet or wager * * * upon anything in any place where people resort for the purpose of betting or wagering, he shall be fined not exceeding fifty dollars." Pen. Code, art. 624.

The opinion of the majority of this court, in the case of Hurt v. Oak Downs (Tex.Civ.App.) 85 S.W.2d 294, 300, holds that the keeping of premises as a place for dog races and for betting on results thereof under the pari-mutuel system is an offense prohibited by the statute. I took occasion, in that case, to express my dissent, prefacing my remarks with the statement that, "until the Legislature has enacted a statute prohibiting betting or wagering on dog races, I content myself with the laws as written, conceiving it to be the duty of the judiciary to decide on rights, regulated or controlled, according to the laws of the land, and not on belief of what ought to be the law. The judiciary should not legislate, but only determine the law as enacted by the legislative branch of the government, and not exalt its belief or notion above the law, and follow such as a higher Code." I reaffirm the statement. Matters not included within the penal statutes should not be read into it by judicial construction, but the legislative intent should be ascertained from words of the act itself.

In the Hurt Case, supra, the opinion of the majority did correctly state: "It is the peculiar province of the Court of Criminal Appeals to construe penal statutes, we have been furnished with no decision of that court construing the statutes in the respects in which they are now being construed." Since that announcement we are not without precedent, for the Court of Criminal Appeals, in the case of Thomas v. State, 91 S.W.2d 716, 717, had under consideration practically the same question as here. In that case an indictment charged that Thomas "did then and there unlawfully keep and was then and there interested in keeping a certain premises, building, room and place there situated for the purpose of being used as a place to bet, wager and gamble on a horse race or horse races and as a place where people would then and there resort to bet, wager and gamble on horse races." The opinion states that: "The testimony adduced upon the trial shows that appellant was engaged in maintaining on the second floor of the River Oaks Building situated on Fannin street in the city of Houston in Harris county, Tex., a room and rooms where quite a number of people resorted for the purpose of betting on horse races to be run in this state and elsewhere." The record further shows that betting and wagering was carried on at said place. The statute under consideration in that case and here involved did not specifically name horse race and horse racing as an offense prohibited by law. The Court of Criminal Appeals, in the cited case, said that the words "`or as a place where people resort to gamble, bet or wager upon anything whatever' (article 625) is but a cleaning up clause in the construction of which the rule ejusdem generis must be resorted to, and when we apply that rule we find that it refers to and means acts of like or similar nature as those specifically mentioned in said article. It does not seem reasonable that any one would seriously contend that horse racing, bookmaking or pool selling are similar in nature as gambling on cards, dice, or dominoes. We believe that what we have said here is supported by the opinion of this court in the case of Ex parte Roquemore, 60 Tex. Crim. 282, 131 S.W. 1101, 32 L.R.A.(N.S.) 1186, and authorities there referred to. It seems that it was the intention of the Legislature to prohibit the operation and maintenance of a place where those games are engaged in which at the time article 625, supra, was enacted were most commonly and usually resorted to for gambling in rooms and houses, and not horse races and football or baseball games."

The holding of the Court of Criminal Appeals in the above cause, I think, effectually disposes of the issue before us. See, also, All Texas Racing Ass'n et al. v. State (Tex.Civ.App.) 82 S.W.2d 151; Panas v. Texas Breeders Racing Ass'n, Inc., et al. (Tex.Civ.App.)80 S.W.2d 1020.

In the case of Panas v. Texas Breeders Racing Ass'n et al., supra, a private citizen sought an injunction against the association, alleging that "`on and prior to the 22nd day of November, A.D. 1934, that said defendants and each of them above mentioned were using, and are now using, concerned in using, and are actually and habitually using, and are threatening and contemplating the use of premises, places, buildings, and parts thereof, situated on described tract of land in Harris County, Texas' (here follows a full description of the premises, the race track, and buildings owned and operated by the defendant corporation and known as Epsom Downs); that `the said defendants, and each of them, are so using, and are aiding and abetting some other person and each other in the use of the above mentioned and described premises, places, and buildings, and a part thereof, for the purposes of gaming and of keeping and exhibiting of games prohibited by the laws of the State of Texas.'" Chief Justice Pleasants of the Galveston Court of Appeals (writ dismissed by the Supreme Court) said in that case: "When the statute was enacted giving a private citizen the right to bring a suit to enjoin the keeping or exhibiting of games prohibited by law, the Legislature knew of the general gaming statute and also of the statute prohibiting betting on horse racing or conducting a pool for betting on horse racing, but did not include such offense among those for the prevention of which the private citizen was given the right to sue for an injunction. Section 4 of the Act of 1905 (Acts 1905, c. 153), giving the private citizen the right to bring suit to enjoin violations of our gaming statute, declares as a reason for its passage that there was no adequate remedy for the suppression of gaming houses."

If the words of general import, the cleaning up clause of the statute under consideration, following the specific enumerated prohibited offenses, do not make horse racing and the betting thereon an offense prohibited by law, then certainly it does not apply to dog racing. So, there being no law of this state prohibiting the keeping of a place where dog races are run and betting upon the result of such races under the pari-mutuel system, the appellee has no law to interfere with appellants' rights by injunction.

It will be further observed that article 4667, supra, authorizes "gaming or keeping or exhibiting games prohibited by law" shall be "enjoined at the suit of either the State or any citizen thereof"; and further provides (subdivision 3): "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."

Before an applicant for a writ of injunction is entitled to the writ, article 4648, R.S. 1925, provides: "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"; and article 4649, R.S., provides: "Upon the filing of the petition and order of the judge and before the issuance of the writ of injunction, the complainant shall execute and file with the clerk a bond to the adverse party, with two or more good and sufficient sureties, to be approved by such clerk in the sum fixed in the order of the judge granting the writ, conditioned that the complainant will abide the decision which may be made therein, and that he will pay all sums of money and costs that may be made therein, and that he will pay all sums of money and costs that may be adjudged against him if the injunction be dissolved in whole or in part."

An examination of all of our civil statutes fails to show that the Legislature has enacted a law authorizing a suit by a private citizen to enjoin another from the free lawful use and occupancy of his own premises, and a court of equity cannot exercise its power to care for and protect the conscientious scruples of a private citizen by an invasion of the province of a court of criminal jurisdiction. No private citizen has such interest in the welfare of the enforcement of the criminal laws as would justify an appeal to a court of equity to restrain another citizen from doing that which does not violate an existing right of his own.

Prior to the statutory authority under consideration here, the rule was that an injunction would not issue to restrain the commission of an act punishable under the criminal statutes, where no property rights of the complainants was involved. York v. Ysaguairre, 31 Tex. Civ. App. 26,71 S.W. 563; Manor Casino v. State (Tex.Civ.App.) 34 S.W. 769; Barry v. State (Tex.Civ.App.) 212 S.W. 304; Featherstone v. Independent Service Station (Tex.Civ.App.) 10 S.W.2d 124. The Legislature, recognizing the limitations existing on a private citizen to enjoin another from "gaming or keeping or exhibiting games prohibited by law," enacted the clause that such citizen "shall not be required to show that he is personally injured by the acts complained of." The statute providing the remedy for a private citizen to enjoin the violation of the prohibited games added nothing to such citizens' rights which did not exist prior to its enactment, except that such citizen be not required to show that he is personally injured by the acts complained of.

In enacting the law under consideration, the Legislature authorized a private citizen to enjoin the violation of the prohibited games mentioned in the article; but the grant of authority did not confer upon such citizen the right to bring a suit in the name of the state, or for the state, or without the giving of a bond. The act provides for an injunction by either the state or by a private citizen, which clearly indicates that, in such proceedings, the private citizen would not be representing the state. Unmistakably, the intent and purpose of the statute was to delegate the Attorney General or the district or county attorney, as the agencies of the state government, to institute such suits in the name of the state, and, as heads of an executive department of the state government (section 1, art. 4, Texas Constitution), a bond could hardly be required of such departments. Herring v. Houston Nat. Exch. Bank, 113 Tex. 264, 253 S.W. 813. Such is not accorded to a private citizen. Express authority to institute a suit does not obviate the necessity of complying with the statute specifically requiring a bond to be given to the applicant as a prerequisite to the issuance of a writ of injunction. Article 4648, R.S.

Our statutes are numerous where authority is granted to private citizens to enjoin the acts and threatened acts of another, but none, so far as I am able to find, authorizes such action without the giving of bond. Articles 4635 and 4636 grant, in divorce cases, the right to either party to an injunction, under certain contingencies. The Supreme Court of Texas, speaking through Justice Phillips, in the case of Ex parte Coward,110 Tex. 587, 222 S.W. 531, said: "Under the statute the giving of a bond is made a condition precedent to the issuance of an injunction. This requirement applies to divorce suits brought by the wife, notwithstanding Articles 4638 and 4639 [now 4635 and 4636.] Wright v. Wright, 3 Tex. 168. The Judge was therefore without power to grant the injunction without requiring a bond from the plaintiff, and the injunction was accordingly void. Williams v. Huff, Dallam, Dig. 554; Diehl v. Friester,37 Ohio St. 473; Lawton v. Richardson, 115 Mich. 12, 72 N.W. 988." This has been the uniform holding of every court in this state, and they are numerous.

The provision of articles 4647 and 4648, requiring that the complainant shall give bond, is mandatory, and the authorities hold that a writ of injunction issued without bond is void. See Phoebus v. Connellee (Tex. Civ. App.) 228 S.W. 982; Boykin v. Patterson (Tex.Civ.App.) 214 S.W. 611; Paine v. Carpenter, 51 Tex. Civ. App. 191, 111 S.W. 430; Houston Ice Brewing Co. v. Clint (Tex.Civ.App.) 159 S.W. 409; Marshall v. Spiller (Tex.Civ.App.) 184 S.W. 285; Cole v. Varner (Tex.Civ.App.)246 S.W. 410; Pruett v. Fortenberry (Tex.Civ.App.) 254 S.W. 592; West Texas Abstract Guaranty Co. v. Stolte (Tex.Civ.App.) 256 S.W. 632; American Rio Grande Land Irrigation Co. v. Ford (Tex.Civ.App.)260 S.W. 277; Holland Texas Hypotheek Bank of Amsterdam, Holland, v. Linscome (Tex.Civ.App.) 37 S.W.2d 268; Bettinger v. North Fort Worth Ice Co. (Tex.Civ.App.) 278 S.W. 466; White v. Perkins (Tex.Civ.App.)65 S.W.2d 423; Johnson v. McMahan (Tex.Civ.App.) 40 S.W.2d 920; Smith v. City of Dallas (Tex.Civ.App.) 36 S.W.2d 547; Corzelius v. Cosby Producing Royalty Co. (Tex.Civ.App.) 52 S.W.2d 270; Alpha Petroleum Co. v. Railroad Commission (Tex.Civ.App.) 59 S.W.2d 374; Rogers Ranch Co. v. Darwin (Tex.Civ.App.) 89 S.W.2d 828; Yount-Lee Oil Co. v. Federal Crude Oil Co. (Tex.Civ.App.) 82 S.W.2d 987.

In this case, the writ of injunction was ordered issued without requiring of the applicant the posting of a bond, as required by the statute; no bond was filed and approved by the clerk; and the writ was issued and served on appellants, thereby depriving them of the use and enjoyment of their property to their hurt and damage.

The record reveals that appellants have investments in real estate and personal property to an amount of more than $50,000; had a labor employment pay roll of more than $800 per day and numerous outstanding contracts with concessionaires involving many thousands of dollars, besides an enormous profit from the operation of the dog races. The majority opinion in the Hurt Case, supra, says: "We are of opinion that plaintiffs [appellants herein] show that they will suffer a serious property damage." Clearly, the Legislature did not intend that a private citizen, one or many, be empowered to destroy another's property and property rights, and damage him, on every fanciful idea or notion, on hearing or otherwise, that such person is violating the gaming law, without the posting of a bond, conditioned that he will pay the damage which might result from his improvident act.

The majority opinion holds that the statutes requiring an injunction bond, as prerequisite for the issuance of the writ of injunction, applies to only ex parte injunction orders and not to temporary injunction orders made on hearing. Such holding is in conflict with every decision in this state, so far as the writer is able to find. There is not an authority cited in the opinion holding that the statutes apply only to ex parte injunctions, and the statutes themselves obviously make no such distinction.

In the case of Houston Ice Brewing Co. v. Clint (Tex.Civ.App.)159 S.W. 409, 416 (writ of error refused [Tex.Sup.] 169 S.W. 411), Judge Fly, writing the opinion for the San Antonio Court of Appeals, said: "The statute (Article 4654, R.S. 1911 [now article 4649]) requires that before the issuance of the writ of injunction a bond shall be given by the party applying for the same. There is only one exception to that requirement, and that is in case where the state is the complainant. It may seem anomalous to require an officer of the court to give the bond in question when the property is in custodia legis, but that is a matter addressed to the legislative rather than the judicial branch of the state government. [Citing authorities.]"

The injunction, in my opinion, should be dissolved, for the reason appellee posted no bond as required by law. The statute is mandatory, the order authorizing the issuance of the writ of injunction is void, and, in my opinion, will not support a conviction for contempt in violating the order. Ex parte Coward, supra. An injunction bond is required in every case, except where the injunction is obtained by the state. A private citizen is not an agent of the state, that he can act in an official capacity as an arm of the government.

It clearly was not the intention of the Legislature that the private citizen bringing the suit was such an agent of the state. The statute specifically states that such prohibited acts shall be "enjoined at the suit of either the state or any citizen thereof." It seems to me that there would have been no necessity to make such alternate agencies, if the citizen was delegated to enjoin the prohibited acts for the state. If such construction could be given the statute, then the state was a party to the pending suit of Oak Downs v. Hurt, District Attorney of Dallas County, facts stated in Hurt v. Oak Downs, Inc. (Tex.Civ.App.)85 S.W.2d 294. The two suits, in such event, were substantially the same cause of action and between the same parties, and under the holdings of this court, in Long v. Long, 269 S.W. 207, and Clack v. Southwest Dairy Products Co., 95 S.W.2d 1038, this case should have been abated. The prior suit (Oak Downs v. Hurt) was against the state, acting by and through its agent, Rob't. L. Hurt, district attorney of Dallas county, Tex.; and, if this suit can be sustained, as one brought by Schmid, a private citizen, for the state, then the ultimate determination of the issues in the prior suit, undoubtedly, will be res adjudicata to appellee in this cause. The primary purpose of the Hurt suit is the same as here. If the state is a party here, the state undoubtedly was a party there; therefore appellants' plea of abatement should have been sustained. I am not in accord, however, that Schmid, as a private citizen, is representing the state in this case, and entitled to proceed by injunction without the giving of the bond required by law.

A further discussion is unnecessary. I register my dissent; the cause should be reversed and judgment rendered, dissolving the temporary injunction.