Full opinion text
HARPER, Judge. The application of Hon. John B. McNamara, county attorney of McLennan County, filed in this court, would show thát upon petition filed by Sam Seed in the District Court of the Seventy-fourth Judicial District, alleging “that he is the owner of eight pool and billiard tables, necessary balls, racks, etc., of the value of $1000; that he is renting a hall and paying therefor the sum of $35 per month; that he has procured State, county and city licenses at a cost of $40 to run a pool hall; that if allowed to run said hall he can earn the sum of $150 to $200 per month. He further alleges that at an election theretofore held in McLennan County, under a law adopted by the Legislature in 1913, known as the Pool Hall -Law, the running of pool halls has been prohibited in McLennan County. He alleges that said Act of the Legislature is unconstitutional and void, but unless the said Hon. Jno. B. McNamara, county attorney, is enjoined, he will institute criminal proceedings against the said Sam Seed, wherefore he prays that a writ of injunction be granted restraining the said Jno. B. McNamara, and his assistants, from instituting any criminal proceedings under said law.” Hpon the filing of said petition Hon. E. J. Clark, judge of the District Court of the Seventy-fourth Judicial District, endorsed thereon the following order: “The clerk is hereby directed to issue the writ of injunction as prayed for, this 7/26/1915.” The clerk of the District Court, in obedience to said order, issued an injunction enjoining and restraining the county attorney from filing any complaint or information against the said Sam Seed for a violation of said law, which was duly served on the county attorney. Upon application being first made to us by the county attorney seeking relief from such injunction, this court refused to issue any process until the county attorney had filed a motion or plea seeking the dissolution of said injunction. After the court had refused to dissolve the injunction, application was again made to us, when we issued temporary process, and set the cause down for hearing. Upon the hearing it was agreed that the evidence on the motion to dissolve showed: 1. That if the pool hall law is valid, it had been legally adopted in McLennan County, and after said law had been adopted all pool halls were closed in McLennan County. That at the time of the adoption of said law Sam Deed owned the pool and billiard tables, but that he rented the building long after the adoption of the said law, and paid the city, county and State license long after the law had been adopted, and after the Court of Criminal Appeals in Ex parte Trancis had held the law valid; and had not rented the building, nor obtained the State, county and city licenses until after the Supreme Court had rendered the opinion in Ex parte Mitchell, in which that court held the law invalid. The first inquiry to he made is, whether or not under the above state of facts it was within the jurisdiction and authority of the District Court of McLennan County to issue the writ of injunction under the Constitution and laws of this State. If so, then we would have no jurisdiction nor authority to interfere with the orders made by that court in granting the injunction, no matter how unwise we might deem, its action. If it had jurisdiction and authority to issue the writ we can not pass on whether it acted properly or improperly in doing so. On the other hand, if the facts set out did not confer jurisdiction upon the District Court to issue the writ of injunction, then its action in doing so is wholly void, and if the order is void, and under it the enforcement of the criminal laws of this State is being restrained, we think, under the law, this court has not only the authority, but it is its duty to declare such order a nullity, in order that the county attorney may proceed with the proper performance of the duties enjoined on him by the other laws of this State the validity of which are not questioned. Whether wisely or unwisely, the people of this State in framing their Constitution, divided the jurisdiction of the civil and criminal courts of final resort, conferring on the Supreme Court final jurisdiction in all civil matters, and upon this court final jurisdiction in all criminal matters. Section 3, article 5, defines the jurisdiction of the Supreme Court, and section 6 of said article defines the jurisdiction of the Courts of Civil Appeals, making it plain that the jurisdiction of those courts extends to civil cases only. Section 5 of said article specifically provides that this court, the Court of Criminal Appeals, “shall have appellate jurisdiction co-extensive with the limits of the State in all criminal cases of whatever grade, and it is given the power to issue writs of habeas corpus, and issue all such other writs as may be necessary to enforce its jurisdiction.” Thus the people, in their Constitution, drew a definite line of division of jurisdiction and authority between the courts of this State, and if the pool hall law provided a penalty to be recovered by civil suit, this court would have no jurisdiction to inquire into the validity of the law, or to seek to enforce it or restrain its enforcement, and we would seek to exercise none. However, the Legislature, in its wisdom, saw proper to make a violation of that law a crime, and provide for the punishment for a violation of its provisions, enforceable only upon the filing of an indictment or information. Section 13 of the Act provides, when the law is put in operation in a given territory, “any person who shall thereafter operate or maintain a pool hall shall be subject to prosecution, and on conviction shall be punished by fine of not less than $25 and not to exceed $100, or by confinement in the county jail not less than thirty days nor more than one year, and each day such pool hall is run shall constitute a separate offense.” No provision is made to collect any penalty for violating the law by any civil suit. Unfortunately, the Supreme Court and this court arrived at different ■conclusions as to the validity of this law. As said by us in Ex parte John Mode, recently decided but not yet officially reported, in upholding the validity of the law, had the Legislature provided for the recovery of a pecuniary penalty by a civil suit, we would concede that under the Constitution of this State, the opinion of the Supreme Court was binding, as it was given final jurisdiction in all civil suits. But the Legislature 'did not so provide, and made the enforcement of the law a criminal case, and of which cases the Constitution made this court the court of final jurisdiction, and this court has twice upheld the validity of the law, in suits brought to test its constitutionality. That question we do not care to again discuss, as we have so fully set forth our reasons in Ex parte John Mode, supra, and in Ex parte Francis, 73 Texas Crim. Bep., 304, 165 S. W. Bep., 147 The question next arises is, when have the civil courts the jurisdiction to restrain by injunction an officer from enforcing a criminal' law which the civil courts deem unconstitutional, and especially in a State like this, where the civil and criminal jurisdiction of the courts have been separated, and two courts of final resort created. ; A writ of injunction is an equitable remedy, and that well known author on Injunctions, Mr. High, says in section 68: “Since courts of equity deal only with civil and property rights, they will not interfere by injunction with criminal proceedings, having no jurisdiction or power to afford relief in such cases. Jurisdiction over such actions is conferred upon courts specially created to hear them, and with few exceptions, it is beyond the power of equity to control, or in any manner interfere with such proceedings by injunction. If, however, the act concerning which an arrest or criminal prosecution is threatened affects civil property and its enjoyment, in protecting the property right, equity may properly enjoin the criminal prosecution. But in such case its interference is founded solely upon the ground of injury to property and the necessity of preserving property rights. And where such rights are not clearly involved, the relief will be denied.” And in section 1344 he says: “It necessarily follows from the doctrines above stated that' when municipal ordinances have been enacted by proper authority, proceedings on the part of municipal officers for their enforcement will not be enjoined merely because of the alleged illegality of the ordinances. A court of equity will not, therefore, interfere by injunction to restrain municipal officers from prosecuting suits against complainants, or from interfering with their business because of their violation of municipal ordinances which are alleged to be illegal, since the question of the validity of such ordinances does not properly pertain to a court of equity when complainants have a perfect remedy at law, if the ordinances are invalid,” citing many authorities and illustrations. The American & English Ency. of Law, vol. 16, p. 370, lays down the rule: “It is a well settled rule, both in England and America, that a court of equity has no jurisdiction to interfere by injunction to restrain a criminal prosecution, whether the violations be for violations of statutes or for an infraction of municipal ordinances. The rule applies whether the prosecution is by indictment or by summary process, and to prosecutions which are merely threatened or anticipated, as well as those which have already been commenced. If the prosecution is under an ordinance, no ground for enjoining it is constituted by the fact that the ordinance is void. There is a line of decisions which establishes an exception to the rule. In those cases where the enforcement of an ordinance or statute would work great injury to property rights, injunctions are allowed.” The Supreme Court of the United States is generally regarded as the highest authority on any question of law in this country. In the case of Ex parte Sawyer, 124 U. S., 200, that court says: “Any jurisdiction over criminal matters that the English Court of Chancery ever had, became obsolete long ago, except as incidental to its peculiar jurisdiction for the protection of infants, or under its authority to issue writs of habeas corpus for the discharge of pelsons unlawfully imprisoned. 2 Hale, P. C., 147; Gee v. Pritchard, 2 Swanst., 402, 413; 1 Spence, Eq. Jur., 689; Attorney General v. Utica Ins. Co., 2 Johns. Ch., 371, 378. “From long before the Declaration of Independence it has been settled in England that a bill to stay criminal proceedings is not within the jurisdiction of the court of chancery, whether those proceedings are by indictment or by summary process. “Lord Chief Justice Holt, in declining, upon a motion in the Queen’s . Bench for an attachment against an attorney for professional misconduct, to make it part of the rule to show cause that he should not move for an injunction in chancery in the meantime said: ‘Sure, chancery would not grant an injunction in a criminal matter under examination in this court; and if they did, this court would break it, and protect any that would proceed in contempt of it.’. Holderstaffe v. Saunders, Cas. temp. Holt, 136; S. C., 6 Mod., 16. “Lord Chancellor Hardwicke, while exercising the power of the court of chancery, incidental to the disposition of a ease pending before it, of restraining a plaintiff, who had by his bill submitted his rights to its determination, from proceeding as to the same matter before another tribunal, either by indictment or by action, asserted in the strongest terms the want of any power or jurisdiction to entertain a bill for an injunction to stay criminal proceedings, saying: ‘This court has not originally, .and strictly, any restraining power over criminal prosecutions’; and again: ‘This court has no jurisdiction to grant an injunction to stay proceedings on a mandamus; nor to an indictment; nor to an information; nor to a writ of prohibition, that I know of.’ Mayor, etc., and Corporation of York v. Pilkington, 2 Atk., 302; S. C., 9 Mod., 273; Montague v. Dudman, 2 Ves. Sr., 396, 398. . . . “Mr. Justice Story, in his Commentaries on Equity Jurisprudence, affirms the same doctrine. Story, Eq. Jur., 893. And in the American courts, so far as we are informed, it has been - strictly and uniformly upheld, and has been applied alike whether the prosecutions or arrests sought to be restrained arose under statutes of the State, or under municipal ordinances. West v. Mayor of N. Y., 10 Paige, 539; Davis v. Am. Society, etc., 75 N. Y., 362; Tyler v. Hammersley, 44 Conn., 419, 422; Stuart v. LaSalle Co., 83 Ill., 341; Devron v. First Municipality, 4 La. Ann., 11; Levy v. Shreveport, 27 La. Ann., 620; Moses v. Mobile, 52 Ala., 198; Gault v. Wallis, 53 Ga., 675; Phillips v. Stone Mountain, 61 Ga., 386; Cohen v. Goldsboro Comrs., 77 Y. C., 2; Waters-Pierce Oil Co. v. Little Rock, 39 Ark., 412; Spink v. Francis, 19 Fed. Rep., 670, and 20 Fed. Rep., 567; Suess v. Nobe, 31 Fed. Rep., 855.” And in Davis v. Los Angeles, 189 U. S., 207, the Supreme Court says: “That a court of equity has no general power to enjoin or stay " criminal proceedings, unless to prohibit the invasion of rights of property, by the enforcement of an unconstitutional law, was so fully considered and settled in an elaborate opinion by Mr. Justice Gray in In Re Sawyer, 124 U. S., 200, that no further reference to authorities is deemed necessary.” Our own Supreme Court has followed this rule, and in Chisholm v. Adams, 71 Texas, 678, Chief Justice Stayton, speaking for the court, says: “It is too clear that a threatened prosecution for a violation of a law defining and prescribing punishment for crime, of whatever grade, furnishes no ground on which a court of equity can grant an injunction.” And in the case of City of Austin v. Cemetery Assn., 87 Texas, 330, Chief Justice Gaines, speaking for the court, reiterates the rule, and holds “courts of criminal jurisdiction have power to enforce an observance of statutes against crime by visiting upon offenders the penalties affixed for their infraction, and ordinarily no one can call to his aid the powers of a court of equity in order to enforce their observance. Yet it has been held that the court will interfere to prevent acts amounting to crime if they do not stop at crime, but also go to the destruction or deterioration of the value of property.” He illustrates the rule: “Suppose a city, not having the power under its charter to do so, should pass an ordinance prohibiting the sale of butchers’ meat in a certain locality, and suppose it should also prohibit anyone from selling meat to be there sold or from buying in the prohibited place ? The ordinance would be void, but could anyone say that the business of a market man in the locality might not be effectually destroyed by it? Under such circumstances we are of the opinion he should have the right to proceed against the corporation to enjoin its enforcement. If a penalty was'denounced against no one but the market man who should sell, it would seem his remedy would be to proceed with his business and defeat any prosecution that should be brought against him for the infraction of the void ordinance In the pool hall law a penalty is denounced against no one except the man who shall run a pool hall in the prohibited territory, and in such an instance, Chief Justice Gaines holds no injunction will lie, even though the ordinance be void. And this is the unbroken rule of de- ' cisión in our Supreme Court — that no injunction will lie to restrain the enforcement of a criminal law, even though in their opinion void, unless irreparable injury will be done to property rights. It is the property rights the court protects. In rendering, this opinion Chief Justice Gaines recognized it was in conflict with a line of decisions holding that even in such instance an injunction will not lie, citing Wardens v. Washington, 109 N. C., 21, but he follows the rule that a court of equity may in such an instance protect property from irreparable injury, citing Atlanta v. Gas Light Co., 71 Ga., 106, as authority for so holding. When the Georgia court had rendered the opinion in the case of Atlanta v. Gas Light Co., supra, it appears that it was contended in that State (as some seem to contend in this State) that it was authority for holding that the civil courts would enjoin the enforcement of a law if they deemed it void, even though no vested property rights were involved, but the Supreme Court of Georgia, in the case of Paulk v. Mayor of Sycamore, 104 Ga., 24 (41 L. E. A., 772) made it plain that no such rule of law had been announced in the case of Atlanta v. Gas Light Co., supra, and adheres to the rule that “courts of equity will not by injunction prevent the institution of prosecutions for criminal offenses, whether the same be violations of State statutes or municipal ordinances; nor will they, upon a petition for an injunction of this nature inquire into the constitutionality of a legislative act making penal the act or acts for the doing of which prosecutions are threatened.” They say: “It will be seen that' the distinguishing feature of that case, and the one which was successfully employed in invoking the interposition of equity, was the patent fact that the threatened prosecutions under the municipal ordinance were being used for the purpose of destroying the valuable, vested franchises of the Gate City Gas Light Co., and equity would stretch forth its strong arm to prevent irreparable damages.” And this is the rule which Judge Gaines announces, that an injunction will issue only to prevent the destruction of vested property rights. Under the petition filed for injunction in the case we are considering, and under the facts agreed to, no vested civil property rights are or can be involved. But the case of Paulk v. Mayor of Sycamore, supra, is one in which the facts are almost identical with this one, and the Supreme Court of Georgia says: “Here no question as to the destruction or invasion of civil rights which had become vested under a legislative charter is presented; and, so far as the record discloses the municipal authorities of Sycamore are simply endeavoring, in good faith, to enforce the penal provisions of the charter and ordinance of the city, the enactment of each of which appears to have been a bona fide effort to exercise the police power, for the protection and preservation of the peace and good order of the community. The plaintiff in error, with full knowledge that the charter of the city contained a provision prohibiting the sale of intoxicating liquors within its incorporated limits, and that one of its ordinances prohibited the keeping of such liquors for sale or barter therein, after seeking and taking legal advice, deliberately purchased a stock of whisky, beer, etc., procured State and Federal licenses, opened a ‘store’ in that city, and commenced selling his stock, in defiance of the law and the ordinance. Having voluntarily gotten himself into this predicament, he now invokes the aid of equity to extricate him therefrom, upon the plea that his business will be ruined, without authority of law, unless he is accorded this relief. He deliberately undertook to test the validity of both the local law and ordinance of Sycamore, by voluntarily and knowingly engaging in the business which they prohibited. He has ample opportunity to make this test in the court having jurisdiction over criminal matters, and a court of equity will not invade their domain in his behalf. “A case which is almost the exact counterpart of this one is that of Burnett v. Craig, 30 Ala., 135, 68 Am. Dec., 115, in which there was a hill for injunction, which alleged that the town council of Cahaba had passed an ordinance fixing a license for retailing within its incorporate limits; that the complainant had obtained a State license, and, acting upon legal advice that the ordinance was illegal, had opened a store in that town, and commenced retailing spirituous liquors; that he was thereupon arrested for violating the ordinance, and fined and imprisoned; that he had instituted a proceeding, which was still pending, to test the ordinance; and that the council still threatened to fine and imprison him as long as he persisted in carrying on his business. The prayer was that the municipal authorities be enjoined until the validity of the ordinance was determined by the legal proceedings. The bill was dismissed, in the court below, for want of equity; and the case was carried to the Supreme Court, where the judgment of the lower court was affirmed, the higher court holding that ‘chancery . . . will not restrain quasi criminal proceedings on the part of the municipal authorities (of a municipal corporation) for repeated violations of an alleged invalid ordinance.’ ” Our own civil courts also so hold. In the case of Lane v. Schultz & Buss, 146 S. W. Rep., 1012, the Court of Civil Appeals at San Antonio holds: “Plaintiffs were aoing business under a license granted them, and what they complain of is that the Comptroller and county judge were molesting them by threats of criminal prosecution for carrying on the business without a license. The foundation of their position is that they had a valid license, and that the acts of said officers, primarily the action of the Comptroller, were, under the circumstances, without warrant of law and void. We are satisfied that plaintiffs’ right to do business under said new license can as readily, and more conclusively, be determined in the proposed criminal proceeding, if brought; and that if, as courts of equity, the District Courts of the State should assume jurisdiction to grant injunction in this class of cases, and forestall the' criminal courts by trying the questions involved, it would be a precedent to practically transfer a large portion of the criminal jurisdiction to the civil docket, where it does not belong. “Another very important consideration is that it would have to be held, in order to support the jurisdiction to grant injunction, that as between the State-and the liquor dealer the latter has a property right in the license or privilege to carry on his business, and the authorities are agreed that, as against the State, such right does not exist. It would be useless to pursue the subject further in view of the reasoning of the Supreme Court in Greiner-Kelly Drug Co. v. Truett, 97 Texas, 377, 79 S. W. Rep., 4.” The court then adds: “We express no- opinion at this time on the question whether or not the new license was rendered void by reason, of the forfeiture declared by the Comptroller of the 1910 license. What we decide on this appeal is simply that the temporary injunctions were improperly granted.” Our civil courts have also held that a license is but a permit, and. grants no vested rights that may not be revoked. In Hernandez v. State, 135 S. W. Rep., 170, the Court of Civil Appeals at San Antonio held: “It can not be said that the license revoked by the order appealed from was of such value as would form a basis for a civil case within the jurisdiction of the County Court. A license to sell intoxicating liquors, is neither a contract nor a property right in the licensee, but a mere permit to do what would otherwise be unlawful. It has none of the elements of property, and confers none within the contemplation of the constitutional provision that ‘no person shall be deprived of life, liberty or property without due process of law’; there being no vested right in a license which a State may not take away when the interest of the public may demand it. The rights and privileges of the licensee exist solely by virtue of the law under which the license is granted and are subject to the police power of the State under which the license was granted, which power itself precludes the State from divesting itself of it whenever the interest of the public may demand it. See Black, Intoxicating Liquors, 127, 145, 150; Joyce, Intoxicating Liquors, 185, 186, 187, 190; Cooley’s Constitutional Limitations (7th ed.), p. 887; Crowley v. Christensen, 137 U. S., 86, 11 Sup. Ct., 13, 34 L. Ed., 620; Youngblood v. Sexton, 32 Mich., 406, 20 Am. Rep., 654; Com. v„ Kinsley, 133 Mass., 578; Voight v. Excise Comrs., 59 N. J. Law, 358, 36 Atl., 686, 37 L. B. A., 292; Sprayberry v. Atlanta, 87 Ga., 120, 13 S. E., 197; Claussen v. Luverne, 103 Minn., 491, 115 N. W. Rep., 643, 15 L. B. A. (N. S.), 698; Le Croiz v. County Commissioners, 5J Conn., 321, 47 Am. Rep., 648; Calder v. Kurby, 71 Mass., 597; Newson v. City of Galveston, 76 Texas, 559, 13 S. W. Rep., 368, 7 L. B. A., 797. In the case of Baldachi v. Goodlet, 145 S. W. Rep., 325, the Court of Civil Appeals (Galveston district) held: “A license to sell intoxicating liquor is a mere permit and not a vested property right or contract right, and the State may, in the exercise of its police power, revoke it.” And the court held no injunction would issue. The rule announced in this case was affirmed by our Supreme Court, and a writ of error refused. Not -only is this the holding of our civil courts, but this court has held that a license is a bare permit. Ex parte Yaccarezza, 52 Texas Crim. Rep., 105; Ex parte Lynn, 19 Texas Crim. App., 293. In those cases it was held that in revoking a license it was not a taking or destruction of property within the purview of the Constitution. Judge Willson says there is strong reasoning to support that position, “but opposed to these views there is a strong and almost uniform array of authorities which unequivocally declare that laws such as our local option law are within the scope of the police powers of a State, and do not take, "damage or destroy private property for public use within the meaning of that provision of the organic law, and do not infringe upon any other provision of constitutional law.” He was speaking of our local option liquor law, which revoked license, prevented the using of houses as a place of sale theretofore so used, the stock of liquors on hand, prospective profits, and the fixtures necessarily connected with said business. A man having a mere permit to pursue such business, the State had a right to revoke it, — one had no property right in such license. And the fact that the Wilding would have to be used for some other purpose; that his stock of liquors could not be sold in that territory, and that his counters, shelving and glasses which were peculiarly applicable to that business could be no longer so used, was not taking away from him any vested right, nor destruction of property within the purview of the law. And as that law was passed under the police power, so was the pool hall law, and one has no more vested right in a license in one instance than in the other. Pool halls had become in some instances notoriously obnoxious and hurtful to the public welfare. In portions of the State, where there were no liquor saloons, and after 9:30 in other territory they had become in many instances the resort- of thieves and criminals of every class. In them more than any other place is where the “bootlegging” in both dry and wet territory, was carried on. In this resort of the criminals, crimes were hatched, and the boys and young men who entered them were brought in contact with improper influences. They had become festering sores, and by this law an opportunity was given to those communities, where the pool hall had become the breeding place of vice, to* close them under the police power of the State, and no man has a vested right to carry on any business that has become hurtful to the public welfare. It is a matter of common knowledge that they were so run in some instances ■as to be more obnoxious to the general welfare of the State than the open saloon. There were no restrictions around those who could obtain a license to run such a place as there were about the saloon; they were and are under no bond to obey the law, and we can not conceive how any court can hold that any person has a vested right to run that character of place, which a court of equity can or would protect by a writ of injunction. In the case of Littleton v. Burgess, 82 Pac. Rep., 864, the Supreme Court of Wyoming, in a case where the plaintiff had a license to run a gambling house, and sought to enjoin the county attorney from prosecuting him, claiming that it was an invasion of his rights, says: “The principal question that confronts us, and one which we think is decisive of this case, is whether a court of equity has jurisdiction, to afford the relief sought by the plaintiff. The jurisdiction of a court of equity, unless expressly made so by statute, is limited to the protection of the rights of property. It has no jurisdiction over the prosecution of crimes. To assume such jurisdiction is to invade the domain of the courts of law, and both the executive and administrative departments of government. Let us investigate for a moment where the contention of plaintiff, if sustained, would lead. The defendant is the prosecuting attorney of Sheridan County, charged with the duty of prosecuting within his county all infractions of the criminal laws of the State. He was proceeding under the provisions of a general statute of the State making gambling a crime, and prohibiting the same. .Criminal prosecutions are conducted in Wyoming in the name of the State. The prosecuting officer is a mere agent of the State, which is the real plaintiff in every criminal proceeding. We have, therefore, in this case the strange anomaly of a court of equitjr being asked to issue an order of injunction to restrain the State from exercising one of its highest prerogatives in the maintenance of government. Courts of equity possess no such power. To hold that they do, would be to invest them with power to restrain and paralyze the operation of the government itself in all its functions and departments. If a court of equity were to assume jurisdiction of the case at bar and try the issues involved, it would be equivalent to a trial of the criminal action here sought to be restrained. The guilt or innocence of the plaintiff would be the fundamental question for the court to determine, and, as bearing upon this feature of the case, the court would have to pass upon the con-" stitutionality of the law under which the criminal proceedings were instituted, and the validity of the ordinance under which the licenses were granted to the plaintiff. These are proper matters of defense in the criminal proceedings. Under our system of' jurisprudence, criminal actions can only be tried by a jury, while the trial of actions in equity have always been reposed in the court, and have never been the proper subject of reference to a jury. Eeither the criminal actions against the plaintiff, nor the infirmities of the statute, if any there be, can be lawfully determined in this proceeding.” In Suess v. Noble, 31 Fed. Rep., 855, it is held: ‘Public offenses are prosecuted in England in the name of the king, and in the United States in the name of the State. ' It is manifest that neither the king nor the State can be made a defendant in a bill in equity. The restraining power of a court of equity would be futile as against them, and it would avail nothing for the court to address its restraining process to public and private prosecutors, even if the power to do so existed, since the State could find other agents to represent it in criminal proceedings. Courts of equity deal only with civil and property rights. They have no jurisdiction to give relief in criminal cases, and they will not, therefore, interfere with the course of criminal justice.” A court of equity could not enjoin a grand jury from returning an indictment, if the grand jury saw proper to do so, and our Supreme Court eoulcl not release on habeas corpus if they did do so, because their authority to issue such a writ is limited by the Constitution and laws of this State to restraint in a civil cause. (Art. 1539, Revised Statutes.) The jurisdiction of our Supreme Court is thus much more limited than in those States where the civil and criminal jurisdiction have not been divided and placed in two courts of final resort, and yet in those States where the court has final jurisdiction in both civil and criminal cases, the court of final resort held that there is no jurisdiction to restrain criminal actions by injunction, nor in such action to determine the validity of a statute. If the county attorney should be enjoined, the trial court under the law can appoint another officer to prosecute, and there is no power in our Supreme Court, nor in any court of equity, to enjoin a trial judge from trying such person, or appointing sufficient officers to see that the case is tried, if a county judge should deem it his duty to do so. Any court that has jurisdiction to issue an order or issue a writ should have, authority to see that its orders are respected and obeyed, and so long as courts of equity deal with civil rights and the rights of property, they have that authority and power, but when they step beyond the jurisdiction conferred .on them by law, then, and in that instance only, is the court without authority to enforce its decrees. As said by the New York court, in West v. Mayor, 10 Paige, 539: “The question as to the validity of the corporation ordinance (or statute) does not properly belong to this court for decision. And it would be an usurpation of jurisdiction by this court (a court of equity) if it should draw to itself the settlement 1 of such questions in the discharge of the legitimate duties of the court.” In Phillips v. Mayor, 61 Ga., 386, it is held: “Injunctions or orders in' the nature of 'injunctions are not granted by courts of equity to restrain proceedings in criminal matters. For this reason, whatever may have been the infirmities of the penal ordinances, an injunction was properly denied. Chancery takes no part in the administration of criminal law. It neither aids the criminal courts in the exercise.of jurisdiction, nor restrains nor obstructs them.” The permission granted by these licenses is not a property!right. A license is a mere permit. It is not a contract, nor does it carry a vested right. Littleton v. Burgess, supra. We could continue such quotations from the decisions of the various States, but we do not deem it necessary. Those who might desire to investigate the matter further will find that the following decisions, in addition to those already cited, hold in accordance with the above State’s rules of law: Burnet v. Craid, 30 Ala., 135; Poyer v. Des Plaines, 133 Ill., 111; Ex parte Wimberly, 57 Miss., 437; Predigested Food Co. v. McNeal, 4 Ohio Dec., 356; McLaughlin v. Jones, 3 N. C. (Pa.), 303; Denver v. Beede, 35 Colo., 173; O’Brien v. Harris, 105 Ga., 733; New Home Sewing Machine Co. v. Fletcher, 44 Ark., 139; Seroab v. Madison, 49 Ind., 339; Ewing v. Webster City, 103 Iowa, 336; Hottinger v. New Orleans, 43 La Ann., 639; St. Peter’s Episcopal Church v. Washington, 109 N. C., 31, and numerous cases cited in Cyc., vol. 33, pp. 903-904, under this statement of the law. The general rule is that injunction will not be granted to' stay criminal proceedings or quasi-criminal proceedings, whether the prosecution be for the violation of the common law or the infraction of statutes or municipal ordinances. But where the statute or ordinance is unconstitutional and void, and the prosecution may result in irreparable injury to property rights, an injunction will be granted. Nevertheless, where no property rights are involved, the injunction will not he granted. Among other cases cited by Cyc. is that of Yellowstone Kit v. Wood, 43 S. W. Bep., 1068, an opinion rendered by our Court of Civil Appeals at Dallas. A license is in no sense property or contract. It is a mere temporary permit to do that which without would be illegal, issued in the exercise of the police power. Lantry v. Heightstown, 46 N. J. Law, 102; Vought v. Board of Excise Com., 46 Atl. Rep., 686; Metropolitan Board v. Barnie, 34 N. Y., 657; Powell v. State, 69 Ala., 10; La Cross v. Fairfield Co., 50 Conn., 321; State v. Gerhardt, 145 Ind., 439; State v. Mullenhuff, 74 Iowa, 271; Fell v. State, 42 Md., 71; Com. v. Brennan, 103 Mass., 70; Moore v. State, 48 Miss., 147; State v. Holmes, 38 N. H., 225; State v. Horton, 21 Ore., 83; Sights v. Yarnalls, 12 Gratt. (Va.), 292; Richland Co. v. Center, 59 Wis., 591 Sprayberry v. Atlanta, 87 Ga., 120. The only question remaining to be discussed is the jurisdiction and authority of this court to grant the county attorney any relief* from the injunction granted by the judge of the Seventy-fourth Judicial District. As before stated, if the District Court had jurisdiction and authority .to grant the injunction, the writer is of the opinion this court would be powerless 6to grant any relief. But if under the allegation of the petition and the facts agreed to on file in this court, the District Court was without jurisdiction to grant the injunction, the injunction granted is null and void. Some authorities hold it would be the duty of the county attorney to ignore the injunction, and if the equity court sought to punish for such violation, to then apply to this court for relief under a writ of habeas corpus. But we think the action of the county attorney in obeying the injunction until its legality could be tested in the proper tribunal is the proper and better course to pursue, for if the various officers seek to sit in judgment on the decrees of courts, and ignore them when they deem them unauthorized, it would beget a disrespect for all law. IJnder the well established rules of law, as shown above, declared by our own civil courts and the courts of other States, there is no allegation in the petition that would authorize a writ of injunction under title 69 of the ¡Revised Civil Statutes, and if no authority is there found, then the District Court was without jurisdiction to issue the writ. The Encyclopedia of Pleading & Practice, vol. 10, p. 804, lays down the rule: “A writ of prohibition will be issued by the Supreme Court to a judge dr court which entertains a suit for injunction in a case in which there is no jurisdiction.” It may be contended that as an appeal would lie from an order granting the injunction, that the county attorney would be re-striated to this remedy alone. If this remedy would be adequate, then such contention should be sustained. But by the issuance of the writ of injunction, the District Court has paratyzed the arm of the law, and all who might desire to do so, during the pendency of that appeal, could openly run pool halls in McLennan County, without restraint or restriction. Taking into consideration the law governing appeals in this State, the county attorney would be compelled to appeal to the Court of Civil Appeals, and if that court should decide that the writ was wrongfully issued, Mr. Reed could apply to the' Supreme Court for a writ of error, and if granted, taking into consideration the well known condition of the docket of the Supreme Court, it would be two or three years before it could be finally determined whether or not the county attorney could institute criminal proceedings. In such a case, as said by the Supreme Court of West Virginia, in Swinbrin v. Smith, Judge, 15 W. Va., 483, “the remedy by appeal and writ of error is inadequate to meet the necessities of the case, and when this is the case, and the judge and court is proceeding without having any jurisdiction, or by the usurpation of power, a writ of prohibition ought to issue, although an appeal would lie.” The court held: “The acts done by the judge of the circuit court were without authority and without any jurisdiction; they were null and void, and writs of prohibition should be awarded to prohibit said court from proceeding in said cases. A writ of prohibition may as well be granted to prohibit proceedings in a court of chancery as to a common law court,” citing Firebrass case, 3 Salk., 550. In the case of Thomas v. Mead et al., 36 Mo., 333, the Supreme Court oi Missouri reviewed at great length the authorities, and held that “a ‘prohibition’ is an original remedial writ, and was provided by the common law as a remedy for encroachment of jurisdiction. It is directed to the judge and parties to a suit in an inferior jurisdiction, upon the ground that they have illegally assumed or transgressed the limits of their jurisdiction. If an inferior court misinterprets a statute, that is held to be a proceeding contrary to the statute, and when the courts of peculiar jurisdiction, as the Ecclesiastical or Admiralty court, which proceed in general according to the civil law, bring in question the statutes or common law of the realm, they are required to interpret, construe and expound them as they are expounded by the superior courts of common law, or as those courts shall say they ought to be expounded, when brought before them on prohibition. (Horne v. Carden, 3 H. Bl., 5337.) It was held in Gould v. Gapper (5 East, 345) in an elaborate decision by Lord Ellenborough, that the Court of Kings’ Bench would prohibit the spiritual courts, or any inferior court, from proceeding upon the construction of an act of parliament, different from that which was put upon it by that court, notwithstanding there was a remedy by appeal or writ of error. Mr. Blackstone says of the writ of prohibition (3 Black. Com., 113): “It was the king’s prerogative writ provided by common law as a remedy for ‘encroachment upon jurisdiction.’” Again, “It will keep all inferior courts within the bounds of their authority, and may either remove their proceedings, to be determined here, or prohibit their progress below,” (3 Black. Com., 41.) Says Justice Coke, from the King’s Bench: “We, here in this court, may prohibit any court whatever, if they transgress and exceed their jurisdiction. And there is not any court in Westminster Hall but may be by us prohibited if they exceed their jurisdiction, and all this is clear and without any question.” (Warner v. Sucterman, 3 Bulst., 119.) See also 2 Inst., 607; 2 'Sel., 308; 6 Com. Dig., 105, 140; 6 Bac. Abr., 579, 600; Full v. Hutchins, Cowp., 424; Buggin v. Bennett, 4 Burr., 2035. In Culpepper County v. Gorrell, 20 Gratt (Va.), 484, the Court of Appeals holds a prohibition is a proper remedy to restrain an inferior court from acting in a matter of which it has no jurisdiction, or from exceeding the bounds of its jurisdiction. See also Glide v. Yolo County, Super. Ct., 147 Cal., 21; State v. Lake Co. Dist. Ct., 26 Colo., 386; State v. Judge, 11 Jud. Dist., 48 La. Ann., 1501; State v. Aloe, 152 Mo., 466; State v. Fisk, 15 FT. Dak., 219; State v. Moultineville, Baee, S. C., 158; Ex parte Hill, 38 Ala., 429; Wood County v. Bowman, 34 W. Va., 87; Bussell v. Jacoway, 33 Ark., 191; Fayeweather v. Morrison, 61 Conn., 431; State v. Superior Court, 13 Wash., 638; Ex parte Branch., 63 Ala., 383; Arnold v. Shields, 35 Ky., 18; Vermont Ry. Co v. Franklin Co., 64 Mass., 12; Appo v. People, 20 N. Y., 531; State v. Hopkins, Dud (S. C.), 101; Jasper County v. Spiller, 13 Ind., 235;. Thompson v. Tracy, 60 N. Y., 31; State v. Gary, 33 Wis., 93. Our own courts have had this question before them, and followed the rule announced in the above opinions. In the case of Hooey v. Anderson, 105 Texas, 239, Chief Justice Brown, in speaking for the court, in construing the. authority of the Supreme Court under article 3, section 5, of the Constitution, says: “The Supreme Court shall have authority to issue such other writs as may be necessary to enforce its jurisdiction” and holds it has power in an original proceeding for that purpose to issue the writ of prohibition to a district judge where necessary to prevent such officer from modifying by injunction the effect of a judgment of that court, and where the matter adjudicated in. an action affected the interest of the public, as distinguished from private interest of the citizen, all citizens are bound thereby, though not parties to that suit, citing authorities which will be found collated in the report of that case. They reiterated that holding and issued a writ of prohibition in the case of Conley v. Anderson, 164 S. W. Rep., 985. Shortly thereafter this court in the case of State ex rel. Looney v. Hamblen, District Judge, 74 Texas Crim. Rep., 526, 169 S. W. Rep., 678, issued a writ of prohibition to a district judge in a case wherein that court had no jurisdiction. And in the case of State v. Travis County Court, 76 Texas Crim. Rep., 147, 174 S. W. Rep., 365, held that in a case where the court had no jurisdiction, the writ of prohibition would issue. So it is no longer an open question in this State as to whether the Supreme Court or this court has authority to issue the writ of prohibition when necessary to enforce its jurisdiction. This court, and it alone, is given appellate jurisdiction co-extensive with the limits of the State in all criminal cases of whatever grade,, with such exceptions as may be prescribed by law. This is exclusive of all other courts, and in the same language as is the power given to the Supreme Court in civil cases “to issue such writs as may be necessary to enforce its own jurisdiction.” If such language gives to the Supreme Court authority, as held by Chief Justice Brown in Hovey v. Anderson, supra,to issue an original writ of prohibition in civil cases, it certainly can not be contended that the language of the Cohstitution does not give to this court the same power and authority in criminal cases. And although Mr. Reed was not a party to the suit in the cases of Ex parte Francis or Ex parte Mode, supra, yét the State was a party, and the State is composed of all the people residing therein, and the question he presents, the validity of the law was there decided; he was a citizen of this State, and as said by Judge Brown in Hovey v. Anderson, supra, “the important question in the case is reached by the announcement of the well-settled proposition of law, that if the matter adjudicated affected the interest of the public as distinguished from private interest of the citizens of the State, although-not parties to the suit, all citizens are concluded thereby,” citing Cameron v. Nelson, 83 Iowa, 242; Wolfe v. Clark, 29 Iowa, 197; 2 Black on Judgments, sec. 584; McEntire v. Williams, 63 Kan., 275; Sampson v. Comrs., 115 Ill. App., 443. The question adjudicated by this court in Ex parte' Francis and Ex parte Mode, that the pool hall law is valid, certainly was one that affected the interest of the public, as contradistinguished from private interest, and, under the holding of our Supreme Court, it being a matter of which this court was given jurisdiction by the Constitution, all citizens are concluded thereby, and when District Courts seek to nullify that adjudication by issuing a writ of injunction, this court not only has authority, but it becomes its duty, to issue the writ of prohibition' to be directed to Hon. E. J. Clark, judge of the District-Court of the Seventy-fourth Judicial District, that he desist from further interference with or hindrance to Hon. Jno. B. McNamara, county attorney of McLennan County, in bringing such criminal proceedings as he deems it his duty an officer, under his official oath and the law, to bring. And issue to Sam Reed, and the attorneys in that case, that they desist from taking any steps to prevent the said John B. McNamara, county attorney, from instituting and prosecuting criminal proceedings if he deems it his duty to do so. And as the order made by Hon. E. J. Clark, judge of the Seventy-fourth Judicial District, in granting the injunction was void and a nullity, in that he exceeded the authority and jurisdiction granted him under the laws of this State, the said Jno. B. McNamara, county attorney, be and he is hereby released from all restraint sought to be placed upon him in the performance of his official duties by virtue of said void order and writ. The writ of prohibition and all other necessary writs to secure the enforcement of this judgment will be issued by the clerk of this court. TPni of prohibition issued. DAVIDSON, Judge (dissenting). — I can not concur and will write.
DAVIDSON, Judge (dissenting). The history of this case is briefly this: Reed was the owner of one or more pool tables and was operating them legally under the terms of the legislative Act requiring payment of taxes for that purpose, but when Ex parte Francis, 72 Texas Crim. Rep., 304, was decided by the majority of this court, upholding the validity of the local option pool hall Act, Eeed at once ceased to operate his pool tables. Later the Supreme Court in Ex parte Mitchell) 177 S. W. Bep., 953, held the local option pool hall Act invalid and unconstitutional. Thereupon Eeed paid all taxes required by the State, county, city and Federal authorities preparatory to opening his pool hall and operating his pool tables. Looking to this, in addition to paying the taxes, he rented a house that cost $35 per month and spent about a thousand dollars or such matter securing his tables, from which he expected to realize something like $150 a month; such is substantially the agreed statement of facts in regard to this phase of the case. In this condition of things the county attorney, Mr. McNamara, threatened Eeed with criminal prosecutions for violating the local option pool hall statute if he should operate his pool tables. The pool hall Act had been favorably voted upon by the people of McLennan County, and so far as that vote is concerned it was placed in -operation in that county. Seed’s pool hall and tables were in the city of Waco, which, of course, is in McLennan County. These threatened prosecutions were based upon the proposition that the local option election had suspended the tax law of the State and that, therefore, Eeed could not operate his pool tables under the tax law with which he had fully complied. Eeed, through his attorneys, Messrs. Williams & Williams, instituted injunction proceedings against the county attorney before Judge E. J. Clark, district judge, who granted a temporary restraining order, or injunction. The county attorney then applied to the Court of Criminal Appeals for a writ of habeas corpus, a writ of prohibition and writ of mandamus. It seems from the opinion of Judge Harper that they did not then grant any of these writs, but suggested to the county attorney that he should move to dissolve^ the temporary injunction, and if this was refused, then present his application to the Court of Criminal Appeals. The motion was made to dissolve the injunction, which was refused by Judge Clark, and an order entered to that effect, and further that all the parties were to await the further order of his court. After the entry of this order the county attorney again presented his application for the three writs — habeas corpus, prohibition and mandamus. This occurred in vacation, but was granted by Presiding Judge Prendergast and Judge Harper. All three of the writs were included in the application and granting order, and Judge Clark, Mr. Eeed and his attorneys were prohibited from taking any steps or doing anything whatever against the county attorney, McNamara, under and by virtue of the injunction suit and orders. The case was set down by my brethren for hearing on the 4th of October, upon the convening of this court. It was submitted on briefs and oral arguments at that time, and the court took it under advisement. Later Judge Harper wrote the opinion for the majority of the court overruling the district judge and sustaining the county attorney. In the opinion the writs of habeas corpus and mandamus seem not to have been discussed, but the opinion was based upon that part of the application which sought a writ of prohibition. So I take it for granted that the majority came to the conclusion that except as to the writ of prohibition their order was improvidently made. Be that as it may, they found that Judge Clark was in error in granting the temporary injunction and making his subsequent orders, and that he could not restrain the county attorney from prosecuting under the local option pool hall statute vitalized by reason of the favorable vote of the majority of the voters of McLennan County; that it was a binding and valid law by reason of that election, and that Seed was thereby interdicted from carrying on his pool hall or exhibiting his pool tables under the legislative tax Act. Under the tax Act he could run and operate his hall and tables; under the pool hall Act, if it is valid, he could not. As I understand the record, Judge Clark has never finally disposed of the case before him. What his final order may have been in the premises would be to some extent speculative. He may or may not have perpetuated the injunction. The writer is of the opinion, however, that he should have perpetuated it. The authority of this court or its jurisdiction in the premises would depend, as a matter of course, and of law, upon the question of this court’s jurisdiction to grant the writ of prohibition to restrain Judge Clark in the injunction case. That the order of the majority of this court is ultra vires and beyond their authority and jurisdiction is to the mind of the writer not even debatable, but the majority of the court having held the other way, I shall state some reasons why I am not concurring with them. In my conclusion, or from my viewpoint of the case and the law, and under the facts presented to this court, I am supported not only by the Constitution, but by the decisions of this court in Ex parte Mussett, 73 Texas Crim. Rep., 487, and Ex parte Zuccarro, 73 Texas Crim. Rep., 214. I also am of the opinion that I am further supported in this conclusion by the opinions of the majority in Ex parte Francis, 72 Texas Crim. Rep., 304, and Ex parte Mode, 73 Texas Crim. Rep., 432, 180 S. W. Rep., 708. These were all habeas corpus cases. In the Mussett and Zaccarro eases, supra, it was decided that contempt punishment for violation of injunction orders was a civil proceeding, of* which the Court of Criminal Appeals could not entertain jurisdiction. That was the only assigned reason for dismissing the application for writs of habeas corpus in both of those cases. An inspection of those cases will show that injunction had been granted in each prohibiting and enjoining the owners of moving picture shows from operating their shows on Sunday, which in Ex parte Lingenfelter, 64 Texas Crim. Rep., 30, and Oliver v. State, 65 Texas Crim. Rep., 150, was declared to be a violation of the Sunday law. I did not agree with my brethren in those matters, but their decision became law by the majority opinion applicable to “moving picture shows on Sunday.” The parties, Mussett and Zaccarro, ignored and violated the injunction of the District Court of Tarrant County, and was by the district judge placed to contempt of his court, and punished as authorized by the statute, and to the limit. Each party applied to this court for a writ of habeas corpus, which was granted, set down for argument, heard on oral argument as well as on briefs. Subsequent to the submission of these cases Judge Harper wrote the opinion in Mussett’s case, and Presiding Judge Prendergast wrote the opinion in the Zaccarro case, holding they were civil cases and this court had no jurisdiction, dismissing both cases from this court without prejudice should they make application to the Supreme Court. It seems Mussett and Zaccarro applied to the Supreme Court after the rendition of the opinions by the majority of this court, and were granted writs of habeas corpus, and discharged from custody, as they should have been. Speaking of the question as to whether the Zaccarro case was a civil or criminal case, Presiding Judge Prendergast uses this language: “We are met at the threshold of this inquiry by the question of whether or not this court has jurisdiction to grant the writ of habeas corpus in this case. “That the case in which this punishment in contempt was imposed is a civil case, we have no doubt. Any judgment which would have been rendered by the District Court of Tarrant County in said cause could only have been appealed, and by either party, to the civil courts of this State, and it could not have been appealed to this court. (Italics mine.) “By the Constitution of our State this court has jurisdiction in criminal cases only. It has no jurisdiction in civil cases of any character. It can not grant a writ of habeas corpus in any case except a criminal matter. “Likewise, our Supreme Court, and the justices thereof, are given power and authority expressly by our Constitution to grant and hear writs of habeas corpus in all civil cases, and the Supreme Court, and neither of the justices thereof, have any jurisdiction, power or authority to grant such writs in criminal cases. “It is true that this court, in the case of Ex parte Allison, 48 Texas Crim. Rep., 634, in a matter practically exactly like this, granted and heard a writ of habeas corpus and decided it November 15, 1905. It may be that in other cases since then this court has first granted wríts of habeas corpus in such matters. We can but believe that this court inadvertently did so without its attention being called to the amendment of our Constitution and especially to this statute.” The Allison case was subsequently brought before the Supreme Court and that court entertained jurisdiction. The Allison case was a violation of an injunction as was the case of Zaccarro, herein quoted. Quoting from Ex parte Mussett, supra, which opinion was written by Judge Harper, I find this: “Without entering into a discussion of the merits of these two propositions, we are met at the threshold with the grave proposition, even if relator is entitled to relief, to which court should the application for a writ of habeas corpus be presented— to this court or the Supreme Court? They are both courts of final jurisdiction, in matters in which they have any jurisdiction, and from the action of either no appeal will lie. If we assume jurisdiction, and order the writ to issue, it should be a finality whatever order we might make, and if the Supreme Court should entertain jurisdiction and order the writ to issue, likewise its orders should be a final disposition of the matter.” The judge then enters into a discussion somewhat of the Allison case decided by the Court of Criminal Appeals, 48 Texas Crim. Rep., 634, and also the same case by the Supreme Court in 99 Texas, 455. Quoting further from the opinion in the Mussett case, this language is used: “That a suit• brought to enjoin one from doing any act or thing, we think will be conceded by all to be a civil case. An appeal lies to the civil appellate branch and not to this court. That the suit instituted in the District Court of Tarrant County for a writ of injunction w'as a civil case will, we do not think, be questioned; that the order made by Judge Simmons ivas in this civil suit is certain, and it is equally certain that relator is restrained of his liberty by virtue of an alleged violation of this order, and an order made in that case. To our mind, taking into consideration our Constitution, and the amendment thereto, the acts of the Legislature, in pursuance- of this amendment to the Constitution, quoted above, it was the clear intent and purpose, that in this character of case the application for a writ of habeas corpus should be addressed to the Supreme Court, and- not to this court. Its action will be final, and will finally determine the question of whether or not the civil courts have jurisdiction to entertain suits