Ex Parte Allison

This is a petition for the writ of habeas corpus, by which the relator seeks to have himself enlarged from the custody of the sheriff of McLennan County and restored to his liberty. It appears from the pleadings and exhibits in this court that one Minor Moore, a citizen of McLennan County, obtained from the judge of the Eighteenth Judicial District a temporary writ of injunction against the relator restraining him from the use of certain premises in the city of Waco for the purposes of gaming, or of keeping and exhibiting games prohibited by law. By order of the judge granting the writ, the petition was returned to one of the district courts of McLennan County and filed with the clerk thereof. Upon the final hearing in the latter court the injunction was made perpetual. Upon an affidavit filed by the plaintiff in the suit, alleging that respondent had violated the injunction, he was attached for contempt, and upon the hearing was adjudged guilty and fined $100. Upon default of payment of the fine, he was placed in the custody of the sheriff of the county — the respondent in the present suit.

The statute under which the original proceeding was instituted was passed at the regular session of the present legislature, and we quote so much of it as we deem necessary for the purposes of this opinion:

"The habitual use, actual, threatened or contemplated use of any premises, place, building, or part thereof, for the purpose of gaming or of keeping or of exhibiting games prohibited by the laws of this state, shall be enjoined at the suit either of the state or of any citizen thereof.

"Any person who may so use, or who may be about to use, or who may aid or abet any other person in the use of any premises, place or building, or part thereof, may be made a party defendant in such suit.

"Sec. 2. And provided, further, that nothing in the above proviso contained shall prevent such injunction from issuing at the suit of any citizen of this state who may sue in his own name, and such citizen shall not be required to show that he is personally injured by the acts complained of" (Acts 29th Leg., p. 372).

The validity of this statute is assailed by counsel for the relator upon several grounds; but we are of the opinion that none of them are well taken. The first question in logical order, as we think, is whether the caption of the act is sufficiently full to meet the requirements of sec. 35 of art. 3 of our constitution. The title in question is as follows: "An Act to prevent, by means of the writ of injunction, at the suit of the state or any citizen thereof, the habitual use, actual, contemplated or threatened, of any premises, place, building, or part thereof, for the purpose of gaming or of keeping or exhibiting games prohibited by the laws of this state." This title, in our opinion, very clearly and fully expresses the one subject of the Act, and is therefore sufficient in that respect to sustain the statute.

It is also insisted on behalf of the relator that the legislature has no power to confer upon the courts the authority to enjoin the commission of crime or the establishment or continuance of a public nuisance. The legislature, when not restrained by the constitution of the state or of that of the United States, has the power to make the law and to provide remedies for its enforcement. We find no express provision in either of these instruments which prohibits the law-making power from either extending or abridging equitable remedies. The main argument against the power the legislature has attempted to exercise by the passage of the act in question is, that it deprives the defendant in the action of the right of trial by jury, and therefore violates the provision of our bill of rights, which declares that "the right of trial by jury shall remain inviolate." This may present a serious difficulty in those jurisdictions in which, as at common law, legal and equitable remedies were kept distinct and administered in separate courts. In courts of law the parties are entitled to have the issues of fact determined by a jury, which is not the case in a court of equity. Hence it might be that in such jurisdictions a statute which attempted to confer upon a court of equity the power to try a cause which was previously cognizable in a court of law, would be held obnoxious to the objection that it deprived the parties of the right of trial by jury. But under our system, in which law and equity are blended, and the right of trial by jury exists, whether the remedy be legal or equitable, the difficulty vanishes. Before the injunction could be made perpetual under the statute in question, it is the right of the defendant to have the jury pass upon the facts. It is true that in case of a violation of the injunction there is in the contempt proceedings no trial by jury; but no such right exists at common law in proceedings for contempt. Hence that does not contravene the provision which declares that "the right of trial by jury shall remain inviolate." That provision merely protects the right as it existed at the time the constitution went into effect.

Nor do we think that the act in question infringes that provision of the bill of rights which declares that "no person, for the same offense, shall be twice put in jeopardy of life or liberty." It is true that if he commits the act which he is enjoined from committing, and such act be a violation of the penal laws of the state, he may under this statute be punished for the contempt, and also for the violation of the criminal law. But these are not "the same offense." In the former case he is punished for a violation of the orders of the court; and in the latter for an offense "against the peace and dignity of the state." One who makes an assault in the presence of the court, in such a manner as to constitute a contempt of court, is punishable, not only for the contempt, but also for the assault.

But it is also urged that the law is invalid for the reason that it gives the right to bring the action to any citizen of the state. We think this objection was well answered in the case of Littleton v. Fritz, 45 Iowa 488, where the same point was made as to a similar statute. There the court say: "There can be no doubt that it is within the power of the legislature to designate the person or class of persons who may maintain actions to restrain and abate public nuisances, and when that is done, the action is for all purposes an action instituted in behalf of the public, the same as though brought by the attorney-general or public prosecutor. We are strongly inclined to think that in this case a decree for the defendant would be a bar to any other like action for an injunction, upon evidence of sales of liquor within the same time as is embraced in this action. The plaintiff is by law made the representative of the public in bringing and maintaining the action." (See, also, Carlton v. Rugg,149 Mass. 550; Mugler v. Kansas, 123 U.S. 623; State v. Crawford,28 Kan. 726.)

It is also urged in argument, in a somewhat indefinite way, that the enjoining of crimes or public nuisances was unknown to the common law, and that therefore the legislature was without power to provide for such injunction. This involves the question whether the procedure provided for in the act is "due course of the law of the land." This question has been answered by the Supreme Court of the United States in the case of Mugler v. Kansas, 123 U.S. 623. There the court say: "Equally untenable is the proposition that proceedings in equity for the purposes indicated in the thirteenth section of the statute are inconsistent with due process of law." "In regard to public nuisances," Mr. Justice Story says, "the jurisdiction of courts of equity seems to be of a very ancient date, and has been distinctly traced back to the reign of Queen Elizabeth. The jurisdiction is applicable not only to public nuisances, strictly so called, but also to purpresture upon public rights and property. . . . In case of public nuisances, properly so called, an indictment lies to abate them, and to punish the offenders. But an information, also, lies in equity to redress the grievances by way of injunction" (2 Story's Eq., secs. 921, 922). The ground of this jurisdiction in cases of purpresture, as well as of public nuisances, is the ability of courts of equity to give a more speedy, effectual and permanent remedy than can be had at law. They can not only prevent nuisances that are threatened, and before irreparable mischief ensues, but arrest or abate those in progress, and, by perpetual injunction, protect the public against them in the future; whereas courts of law can only reach existing nuisances, leaving future acts to be the subject of new prosecutions or proceedings. This is a salutary jurisdiction, especially where a nuisance affects the health, morals or safety of the community. Though not frequently exercised, the power undoubtedly exists in courts of equity thus to protect the public against injury." If it be asserted that the procedure for the prevention of crime is novel and unknown to the common law, the answer is obvious. It seems that from the days of Edward the Confessor it was competent for any subject of the realm of England to cause any person to be brought before a magistrate, and to compel him to enter into an obligation, with sureties, to keep the peace, not only as against the complaining party, but also as against all persons in general. (4 Blackstone Com., 251.)

Besides the whole of title 3 of our Code of Criminal Procedure is devoted to the means for the prevention of crime, and provides very much of the same remedies as were allowed at common law. Such being the facts, we fail to see that there is any peculiarity about the writ of injunction, or any peculiar sanctity about criminal or quasi criminal acts, which debar the legislature from providing that one may be enjoined by a suit in equity from establishing a public nuisance — such as a gaming house.

We deem it unnecessary to pursue this discussion further. The principal objections urged against the validity of the act have been fully and ably discussed in the cases of Mugler v. Kansas, Littleton v. Fritz and Carlton v. Rugg, previously cited, and in all of which the validity of similar statutes was upheld. (See, also, State v. Saunders, 66 N.H. 39, in which the main question is exhaustively discussed in an opinion characteristic of that eminent court.) In this same case, upon a writ of habeas corpus sued out by this relator before our Court of Criminal Appeals, that court maintained the constitutionality of the act in question, and remanded the relator to the custody of the sheriff. That court within its jurisdiction is a court of equal dignity and authority with this court. Courts will not declare an act of the legislature invalid as being in conflict with the constitution unless it appear to them to be clearly so. For a stronger reason, they should not so declare where the validity of the statute has been upheld by another court of last resort.

In the application for the writ in this case, the fact that a previous writ had been sued out from the Court of Criminal Appeals, and that the relator had been remanded, appears upon the face of the petition. An exception was interposed by the respondent upon the ground that under our statutes the relator was not entitled to a second writ of habeas corpus. A majority of the court are inclined to think the objection well taken; but to this proposition Mr. Justice Williams is not prepared to accede. The decision of the question not being necessary to a determination of the case, we express no opinion upon it.

The prisoner is remanded to the custody of the sheriff of McLennan County.