Full opinion text
Me. Chief Justice PHILLIPS delivered the opinion of the court. The certificate of the honorable Court of Civil Appeals, with the question submitted, is as follows: “This an appeal by Mrs. J. F. Moore and W. C. Blackmon from the following order of the District Court of Tarrant County: Tt is therefore ordered, adjudged and decreed by the court that the said defendants, Mrs. J. F. Moore and W. C. Blackmon are hereby temporary (temporarily) enjoined from using the house known as 1805-J Houston Street in the city of Fort Worth for the purpose of keeping, or being interested in the keeping of a bawdy or disorderly house therein.’ The trial court made no findings of fact, but the evidence is sufficient to support the conclusion that appellant, W. C. Blackmon, who was the rental agent of the. appellant, Mrs. Moore, knowingly permitted the house to be used for the purpose prohibited by law. There is nothing in the evidence to indicate that he was otherwise concerned in the keeping of such house further than such knowledge upon his part that the house was being so used made him interested in the same. As to appellant Mrs. Moore the evidence fails to show any connection whatever with the keeping of the house or that she knowingly permitted the same, unless the knowledge of her agent Blackmon should in law be imputed to her and render her also liable. (For a fuller statement of the evidence and as explanatory of our question reference is made to the brief Statement of Facts.) “We, therefore, certify to your honors whether or not under the Act of the Thirtieth Legislature (1907, p. 846) authorizing the enjoining of The habitual, actual, threatened, or contemplated use of any premises, place, building, or part thereof, for the purpose of keeping, being interested in, aiding or abetting the keeping of a bawdy or disorderly house,’ the writ in this instance was properly issued?” The action appears to have been brought by the county attorney under articles 4689 and 4690 of the Revised Statutes of 1911, which read: “Art. 4689. The habitual, actual, threatened or contemplated use of any premises, place, building or part thereof, for the purpose of keeping, being interested in, aiding or abetting the keeping of a bawdy or disorderly house, shall be enjoined at the suit of either the State or any citizen thereof. Any person who may 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; provided, that the provisions of this and the succeeding article shall not apply to nor be so construed as to interfere with the control and regulation of bawds and bawdy houses by ordinances of incorporated towns and cities acting under special charters and where the same are actually confined by ordinance of such city within a designated district of such city.” “Art. 4690. The Attorney General and the several district and county attorneys shall institute and prosecute all suits that said Attorney General or such district or county attorney may deem necessary to enjoin such use; provided, that such suit may be brought and prosecuted by any one of such officers; 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; and the procedure in all cases brought hereunder shall be the same as in other suits for injunction, as near as may be; provided, that, when the suit is brought in the name of the State by any of the officers aforesaid, the petition for injunction need not be verified.” These articles are from the Act of 1907,—Acts of 1907, page 246. The present criminal statute in relation to the keeping of bawdy houses, article 500 of the Penal Code, as amended by the same act, reads: “Any person who shall, directly or as agent for another, or through any agent, keep or be concerned in keeping, or aid or assist or abet in keeping a bawdy house or a disorderly house, in any house, building, edifice or tenement, or shall knowingly permit the keeping of a bawdy house or a disorderly house in any house, building, edifice or tenement owned, leased, occupied or controlled by him, directly as agent for another, or through any agent, shall he deemed guilty of keeping, or being concerned in keeping, or knowingly permitted to be kept, as the ease may be, a bawdy house or a disorderly house, as the case may be, and, on conviction, shall be punished by a fine of two hundred dollars, and by confinement in the county jail for twenty days for each day he shall keep, be concerned in keeping or knowingly permit to be kept, such bawdy or disorderly house.” In answering certified question our practice is to confine ourselves to the statement of the case as contained in the certificate of the Court of Appeals, since it must be assumed that it embodies the essential facts upon which the certified question is predicated. We customarily, decline to look to the statement of facts, if it accompanies the certificate; and we shall therefore determine the present question simply upon the facts recited in the certificate. As to the defendant, Blackmon, under the statement of the Court of Civil Appeals that the evidence adduced upon the hearing was sufficient to warrant the conclusion that as the agent of the owner of the premises he knowingly permitted the house to be used for the unlawful purpose, we think there can be no question as to the injunction having been properly issued. The Penal Code, article 500, attaches criminal liability to any one who shall, “as agent for another,” keep or knowingly permit the keeping of a bawdy house in any house leased or controlled by him. The Court of Criminal Appeals has held that knowingly permitting the keeping of such a house is simply a method of committing the offense of “keeping,” and is not in itself a distinct offense. Willis v. State, 34 Texas Criminal Reports, 148, 29 S. W., 787; Schulze v. State, 56 S. W., 918. Under this ruling, the evidence in relation to Blackmon would have made him subject to criminal prosecution for keeping a disorderly house by knowingly permitting it to be kept for that purpose. Prom the nature of the Act of 1907, which comprises the articles we have quoted, it inevitably follows that any one subject to prosecution for keeping a bawdy house, under the Penal Code, is subject to an injunction, under article 4689, for the purpose of restraining such unlawful use of premises. It is hardly logical to conclude that this statute, enacted in aid of the criminal law, is narrower in its operation than the criminal statute, and is without application to one amenable to the criminal law on the same subject. . Whether the injunction rightfully issued against the defendant owner of the premises, who, prior to the institution of the suit, appears to have had no knowledge that they were being used for the wrongful purpose, presents a more difficult question; but after a careful consideration, in the light of general principles and the statute, we are convinced that she was, at least, a proper party to the proceeding, and the issuance of an injunction running against her, as well, was therefore not unauthorized. If this had been a criminal prosecution against the owner, knowledge on her part of the unlawful use of the premises would clearly have been essential to justify conviction. But the proceeding was not of that nature. It was a civil suit for the suppression of a public nuisance by means of a civil remedy. The object of the statute would be defeated if the elements necessary to constitute the criminal offense must exist in order for it to apply. -Its purpose was a broad one, and it should be given a construction which is consonant with that purpose. At this place it is well to recur to the holding in Marsan v. French, 61 Texas, 173, 48 Am. Rep., 272, the opinion having been rendered by Judge Stayton,-—a case wherein damages were sought against an owner of premises which it was charged he permitted to be used for purposes of prostitution to the injury of the plaintiff whose home was adjacent; and in which-by the charge of the court a recovery for the plaintiff was authorized only upon its being proved to the satisfaction of the jury that the defendant not only let the premises to prostitutes knowing them to be such at the time, but that he rented them to such persons for such use, etc. In commenting upon the charge, it was said: “This charge was more favorable to the appellant than a correct application of the law would justify. . . . The rules applied by the court in this case were such as would be applicable in a criminal prosecution for letting premises to be used as a place of prostitution, and it may well be questioned whether rules so stringent should be applied in civil causes in which questions of knowledge and intent are often of but little or of no importance.” It is the “use” of premises for the unlawful purpose named, habitual, actual, threatened or contemplated, at which article 4689 is leveled. It is such “use” which it is designed to prevent by the civil remedy which it supplies. It is altogether an impersonal statute. It is not a statute in relation to parties to suits, and does not attempt to prescribe who shall constitute the parties defendant to the injunction proceeding which it authorizes. It contains a provision, that any person who may use or be about to use, or who may1 aid or abet any other person in the use of the premises for the wrongful purpose, may be made a defendant, but does not attempt to define only such persons as the proper parties defendant to the action. This provision can not be given the effect of an exclusive enumeration of those who may be made defendants in the proceeding. It has none of the marks of such an enumeration. The purpose of the act from which article 4689 is taken, was to enlarge rather than supplant the general rules of law applicable to injunction suits of this nature. This is shown in the provision in article 4690, “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”; in placing at the disposal of the private citizen the remedy of injunction, without his being required to show that he is personalty injured by the acts complained of; and by the further express declaration in the same article, that “the procedure in all cases brought hereunder shall be the same as in other suits for injunction, as near as may be.” It can not be supposed that its intention was to deny the right to make or join as a party defendant in the suit one who, otherwise, would be a proper party. The owner of premises is under - a primary obligation to keep his premises from becoming a public nuisance. It is a common law duty. Joyce on Nuisances, sec. 453. It is frequently announced as a general rule that an owner is not liable for a nuisance created by his tenant of which he has no knowledge. But upon examination it will be found that this is a doctrine applied, to private nuisances. And it may be doubted whether it is to be accepted without qualification in relation merely to private nuisances. Upon this question this is said in Marsan V. French: “The maxim, ‘so use your own property as not to injure the rights of another/ would seem to require that a landlord should at least use reasonable care and diligence in reference to the use which his property is applied, and that even for the negligence in this respect he might become responsible civilly for an injury which could not result if he exercised due care and due regard for the right of his neighbor.” !We are not called upon in this case, howfever, to apply the rule in respect to the civil liability of an owner for - the maintenance by a tenant of a private nuisance. The question here is merely as to the-right to have an injunction run against an owner for the abatement of a public nuisance. In such a case it is difficult to perceive how the right is affected by the owner’s previous want of knowledge that the-premises constitute such a nuisance. No immunity from injunction against such use of the premises is created by the want of such knowledge on the owner’s part. The right to an injunction arises upon proof of the nuisance, regardless of his knowledge or want of knowledge that his premises are being unlawfully used. It is not affected by the question of the owner’s knowledge; and of course is not defeated by his want of knowledge. If it is established that the nuisance exists, it then becomes simply a question of against whom the writ of injunction may properly run. While it is proper, and .perhaps usual, to directly enjoin the immediate user of the premises in such cases, under what theory is the owner exempt from the writ? It is his duty to see that his premises are not applied to the unlawful use; and it is equally the right of the law to have him take such action as will prevent their being so- used. The proceeding is not for the purpose of fastening any liability for the past use of the premises. The abatement of the nuisance by the prevention of their future unlawful use is, alone, its aim. The owner’s ignorance of' the past unlawful use of his property does not relieve him of responsibility for its future use. He can not say that because he was unaware that it had become a public nuisance, the nuisance may not be restrained and its further existence prevented by an injunction running directly against him, requiring the exercise of his authority as the owner of the property, primarily charged with the duty, inhering in his ownership, of -seeing that it is not devoted to unlawful purposes. If in such cases the owner may relegate the proceeding to an action simply against those directly responsible for the nuisance and others concerned with them, it means that they alone are charged with that duty and he is exempt from it. But the law does not protect persons in the ownership of property, and then permit them to absolve themselves from all obligation in respect to the uses to which it is applied. Ownership carries its duties as well as its benefits. One of them is to keep the property from a use which is unlawful. It is imposed upon the owner because that is where it ought to rest. It is an element of his right of control over the property, his authority to direct thh purposes for which it may be used. The operation of the writ of injunction against the owner of the premises as a means of preventing the continuance of a public nuisance maintained by a tenant, imposes upon him no hardship beyond that created by their unlawful use which it is his duty to abate. To the full extent that an injunction under this statute may accomplish the restraint of the nuisance, it may be employed. To have the writ run against the owner, thereby requiring him to relieve his premises of their unlawful use, is one method by which the purpose of the proceeding may be lawfully accomplished, and it is, therefore, not an improper way for the remedy to be applied. In another view the joinder of the owner of the premises as a defendant in such a case, is warranted. The object of the injunction, if finally allowed, .is to permanently enjoin the unlawful use of the premises. It is proper in the proceeding to have the owner before the court, so that, in the event the lease of the premises is terminated, he may be affected by the court’s judgment perpetually restraining the continuance of the nuisance. O’Sullivan v. New York, etc., Co., 7 N. Y. Supp., 51. The question presented was considered and determined by the Supreme Court of Iowa in Martin v. Blattner, 68 Iowa, 286, 25 N. W., 131; opinion on rehearing, 27 M. W., 244. It was a suit to restrain a public nuisance, in which the owner of the premises was joined as a defendant with the tenants, and where the owner was without any knowledge, prior to the institution of the suit, that his premises were being unlawfully used. The proceeding was under a statute of the same general character as our own. It was urged in behalf of the owner that he was not subject to an injunction in the case because of his want of any prior knowledge of the wrongful use of the property. We quote from the -opinion as follows: “It must be assumed that Mr. Gibbs (the owner) leased the premises for a lawful purpose, and that he did not have any knowledge, at the time the injunction was asked, that his tenants had committed a statutory nuisance thereon by selling intoxicating liquors contrary to law. This being so, a petition for a rehearing has been filed upon the ground that a landlord can not be made liable for .a nuisance created by his tenant of which he has no knowlédge. Authorities are cited in support of this doctrine, and we think, in a certain sense, it is undoubtedly true. Cooley, Torts, 608-612'; Woods, Landl. & Ten., sec. 539. An examination of these authorities, and all others cited in notes therein, will' demonstrate that-the doctrine above stated has been established in actions to recover damages for the erection or continuance of private nuisances. In such cases it has been generally held that a landlord is not liable in damages that have been caused by nuisances created by his tenant, ■of which the landlord has no knowledge. This case is materially different. In the first place, this is a public nuisance, although the action is brought by a private citizen under a statute which authorizes him to bring this action. In the second .place it is not sought to recover •damages for the past, but the sole object oí the. action is to restrain and prevent the nuisance in the future. When Mr. Gibbs was made a party to the action, he obtained knowledge that it was claimed and charged that his tenants had been using the leased premises as a place for the ■sale of intoxicating liquors, thereby creating a public nuisance, and therefore he, as the owner of the premises, or, rather, his property, under the statute, would become liable as therein provided: This, at least, should be regarded as sufficient to put him on inquiry as to the truth of the matter charged. Mot only so, but, as he was made a party and .appeared in the action, he is chargeable with such knowledge, in relation to the existence of the nuisance as was established by the evidence introduced on the trial. The court found and determined that a nuisance existed, and, until this determination was reversed or set aside in a lawful manner, it must be regarded as conclusive evidence of the •existence of the nuisance, as against, not only the lessees, but also as to the landlord. “The statute provides that the Tuilding or erection, of whatever kind, or the ground itself in or upon which such unlawful manufacture or sale, or keeping with intent to sell, . . . any intoxicating liquors, is carried on, . . . is hereby declared a nuisance, and shall be abated as hereinafter provided. . . . Any citizen of the county where such nuisance exists . . . may maintain an action in equity to abate and perpetually enjoin the same.’ Chapter 143 of the Acts of the Twentieth General Assembly; Miller’s Code, 411. Under this statute it seems to us that the building becomes a nuisance, and that its continuance as such may be enjoined and prevented. Such is, as we understand, the plain import of the statute. “As we have seen, Mr. Gibbs obtained knowledge at the trial that his building was, under the statute, a public nuisance, and that a citizen acting for the public asked that it be enjoined. It seems to us clear that such a remedy existed as against him and his building. The statute, in express terms, so provides, and the court was bound to grant the relief asked. We affirm the proposition to be true, upon principle, that no one can use his property, or permit it to be used by another, so as to create a public nuisance. The right of the public in this respect is superior to that of the individual. The property of the latter must be held in subordination to the rights of the general public. The health and morals of the community so require. The existence of the nuisance having been conclusively established as between the parties to this action, and between each of them, by the judgment of the court, it necessarily follows that the tenants can not continue the business, or do the thing which created it, in the leased premises. The premises may continue to be occupied by them for lawful purposes, and the lease may continue to exist. Clearly, however, in our judgment, Mr. Gibbs can protect himself and his premises from being a public nuisance, and to that end he may have the power to cancel the lease, or enjoin the unlawful use. We, however, do not regard it as essential to determine this question. The petition,for rehearing is overruled.” In our opinion the owner of the premises was a proper party to the-suit, and on the finding of the court that the premises were being soused as to constitute them a public nuisance, she was subject to an-injunction. The certified question is so answered. (Associate Justice Hawkins dissenting.)
DISSENTING OPINION. Mr. Justice" HAWKIUS delivered the following dissenting opinion r By the certified question of the Court of Civil Appeals set out in the opinion of the majority of this court by Chief Justice Phillips, relating solely to the Act of 1907, chapter 132, page 246, two inquiries are suggested: First, had the District Court jurisdiction and authority to-grant this injunction, and, second, is its judgment supported by the-evidence ? Our Legislature has seen fit to confer upon District Courts express statutory authority to enjoin the commission of certain specific offenses against our criminal laws, said Act being one of that character. In enacting it the Legislature did not exceed its rightful powers, the matter being purely one of legislative discretion. “The Legislature, when not restrained by the Constitution of the State or 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.” Ex parte Allison, 99 Texas, 462, 90 S. W., 870, 2 L. R. A. (U. S.), 111, 122 Am. St., 653; Ex parte Dupree, 101 Texas, 156, 105 S. W., 493; Mugler v. Kansas, 123 U. S., 623, 31 L. Ed., 205. The validity of said Act is not attacked. Excepting only the restrictive proviso in article 362a, Penal Code, article 504 (Revised Statutes, art. 4689), said Act is valid, and it will be so treated. Spence v. Fenchler (ante, p. 443), recently decided by this court; Ex parte Allison, 99 Texas, 455, 90 S. W., 870, 2 L. R. A. (N. S.), 1111, 122 Am. St., 653; Clopton v. State, 105 S. W., 994; Ex parte Morgan, 57 Texas Cr., 551, 124 S. W., 99; Ex parte Roper, 61 Texas Cr., 668, 134 S. W., 334; 9 R. C. L., p. 220. Concededly, under the phraseology of the certified question, the contested issue in this case is restricted to and turns upon the construction to be given to certain injunction provisions of said statute. Did the Legislature intend to make the injunction features of that statute as broad as the bawdy house and disorderly house evil with which its criminal provisions deal, or did it intend to limit such injunction provisions to only certain designated statutory phases of that evil, not embracing those which are disclosed by the ascertained facts of the case at bar ? My associates seem to be of the former while I am of the latter view. They construe those injunction provisions very broadly, it seems to me; I construe them more strictly, for reasons which I will state. Said statute embraces the following features, among others: (a) It defines a "bawdy-house.” Penal Code, article 496 (359). (b) It defines a “disorderly house.” Penal Code, articles 496 (359), 499 (360), 502 (362). (e) It defines and denounces several distinct and separate crimes or offenses, and prescribes a penalty, as follows: "Any person who shall, directly or as agent for another, or through any agent, keep or be concerned in keeping or aid or assist or abet in keeping, a bawdy house or a disorderly house, in any house, building, edifice or tenement, or shall knowingly permit the keeping of a bawdy house or a disorderly house in any house, building, edifice or tenement owned, leased, occupiéd or controlled by him, directly or as agent for another, or through any agent, shall be deemed guilty of keeping, or being concerned in keeping, or knowingly permitted to be kept, as the case may be, a bawdy house or a disorderly house, as the case may be, and, on conviction shall be punished by a fine of two hundred dollars, and by confinement in the county jail for twenty days for each day he shall keep, be concerned in keeping or knowingly permit to be kept, such bawdy or disorderly house.” Penal Code, art. 500 (361). In this connection it should be noted, and constantly remembered, that while each offense so defined constitutes some particular phase of what, in a sense, is one general evil, or crime, and while the penalty is common to all those offenses, and while, therefore, the offenses named being misdemeanors and not felonies, any two or more of such offenses may be charged in one count of the same complaint, information or indictment, said offenses, nevertheless, are separate and distinct offenses in that evidence which ■ will support a conviction for one such offense will not support a conviction for any other offense under that statute. This distinction, which I regard as material, is one which said majority opinion in this case in a great measure repudiates, or treats as immaterial ; and from this point of divergence that opinion leads off into what •I consider a morass of difficulty and error. (d) Said statute also provides: “Any owner, lessee, or agent of either controlling the premises, having information that the premises are being kept, used or occupied as a bawdy or disorderly house, shall be held guilty of knowingly permitting the premises to be kept as a bawdy or disorderly house, as the case may be, unless he shall immediately proceed to prevent the keeping, using or occupying of such house, building, edifice or tenement for such purpose by giving such information to the county or district attorney, against the person or persons violating the provisions of this Act, or take such other action as may reasonably accomplish such result.” Penal Code, art. 501. “Any person who shall directly, as agent for another, or through an agent, knowingly employ or have in his service in any capacity in any theater, play-house, dance-house, or house where spirituous or malt liquors are kept for sale, any prostitute, lewd woman or women of bad reputation for chastity, or permit any such woman to display or conduct» herself'therein in an indecent manner, shall be guilty of keeping a disorderly house, and shall be punished by a fine of not less than one hundred nor more than five hundred dollars, and by confinement in the county jail for twenty days for each day that such person is kept in service or employed or permitted to display or conduct herself as hereinbefore provided.” Penal Code, art. 502 (362). “The habitual, actual, threatened or contemplated use of any premises, place, building, or part thereof, for the purpose of keeping, being interested in, aiding or abeting the keeping of a bawdy or disorderly house, shall be enjoined at the suit of either the State or any citizen thereof.” Penal Code, art. 503 (362a). “Any person who may 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.” Penal Code, art. 504, the quoted language being followed by a proviso which is inoperative. Spence v. Fenchler, supra. “The Attorney General and the several district and county attorneys shall institute and prosecute all suits that said Attorney General, or such district or county attorney, may deem necessary to enjoin such use; provided, that such suit may be brought and prosecuted by any one of such officers; 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.” Penal Code, art. 505. The provisions relating to injunction appear, also, in articles 4689-90, Revised Statutes, 1911. It is too plain for argument that in the case at bar under the recognized facts, as set out in the certificate, the agent can not be reached' by such statutory injunction unless the injunction features of said statute be construed as embracing one who knowingly permits, etc., although article 362a (now article 503) does not expressly include him; and it is likewise evident that the owner can not be included by such statutory injunction unless that article be construed as going still further and as extending beyond all the said statutory offenses and as embracing a person who, clearly, is not guilty of any criminal offense, or phase thereof, denounced by said Act, or by any other portion of our Penal Code, and who, furthermore, had neither knowledge nor actual notice of the illegal use of the premises which she, through her agent, had leased to the sole active offender, the tenant. Upon an extended and very careful consideration of this statute, and of practically all accessible authorities, textbooks and decisions, bearing upon the general subject, I am unable to bring my mind to the conclusion that the Legislature meant to extend so far the equitable powers of the chancellor. In this instance it happens that the action for injunction is in behalf of the State; but, of course, the construction now placed, by this court, upon said Act, will apply as well, and serve as a precedent, in similar actions by citizens under this statute. So far- as I have been able to find, by diligent search among the textbooks, the digests and encyclopedies, and the decisions of courts upon both sides of the Atlantic, the decision of my associates in the case at bar approves a judgment of a trial court which constitutes the broadest exercise of judicial power in such matters ever spread upon any court record in the English language, whether under the common law, or under a statute specifically, authorizing an injunction to restrain the “use” of premises for either bawdy or disorderly house purposes. Admittedly, at common law keeping a bawdy house was a common or public nuisance, and was indictable. Hawkins’ Pleas of the Crown, vol. 1, p. 692, sec. 6, citing 3 Inst. 205; 4 Black. Com., pp. 167-8. See, also: Bacon’s Abridgment, vol. 7, p. 234; 1 Russell on Crimes, pp. 739-740. “At common law a Tawdy house’ or a house of fill-fame,’ in the popular sense of the terms, is a species of disorderly house, and is indictable as a nuisance.” Henson v. State, 62 Md., 231; 50 Am. Rep., 204, citing 3 Greenleaf’s Ev., sec. 184, 2 Wharton’s Cr. L., sec. 2392. Such has always been the rule throughout the United States. 14 Cyc., 484, note 16; Weakley v. Page (Tenn.), 46 L. R. A., 558. “The repeated, continuous and persistent violations of the statute are what makes them nuisances, independent of the' express terms of the statute declaring them to be such. Indeed, we would think that every place where a public statute is openly, publicly, repeatedly, continuously, persistently and intentionally violated, is a public nuisance.” State v. Crawford, 28 Hans., 733, 42 Am. Rep., 182, and cases cited; Weakley v. Page, supra. Yet never, so far as I can find, in an action under the common law on behalf of the crown or a State, has any English-speaking court issued a writ of injunction to restrain the maintenance of either a bawdy house or a disorderly house, although the opinions in some English and in many American cases abstractly define the equitable powers of the courts in terms broad enough to include an injunction of that character. I do not say courts of equity have not, nor that they have that power or authority, under the common law, that point not being embraced by the certified question. I allude to the fact, as I understand it to be, merely to emphasize my view that this injunction statute was probably not intended by the Legislature to be construed as going beyond the boundaries of the language therein actually employed. It is to be presumed that the Legislature understood its ordinary meaning. With advantage, perhaps, that thought may be pursued further. At common law the equity powers of courts were never exercised for the sole purpose of preventing crime. Attorney General v. Sheffield Gas Co., 19 Eng. Law & Equity Rep., 643; Lawrence v. Smith, 1 Jacob, 471-3; Mayor of Hudson v. Thorne, 7 Paige, 261; 4 Black. Com., chap. 18. Blackstone, in treating “Of the Means of Preventing Offenses” (book 4, chap. 18), said: “This preventive justice consists in obliging those persons whom there is probably ground to suspect of future misbehavior, to stipulate with and to give full assurance to the public that such offense as is apprehended'shall not happen; by finding pledges or securities for keeping the peace, or for their good behavior.” And in discussing nuisances Blackstone said: “Let us next attend to the remedies, which the law has given for the injury of nuisance. And here I must premise that the law gives no private remedy for anything but a private-wrong. Therefore, no action lies for a public or common nuisance, but an indictment only; because, the damage being common to all the king’s subjects, no one can assign his particular proportion of it; or if he could, it would be extremely hard if every subject in the kingdom were allowed to harrass the offender with separate actions. For this reason, no person natural or corporate, can have an action for a public nuisance, or punish it; but only the king in his public capacity of supreme governor, and pater-familias of the kingdom. Yet this rule admits of one exception; where a private person suffers some extraordinary damage, beyond the rest of the king’s subjects, by a public nuisance, in which case he shall have a private satisfaction by action.” He then points out that since the action of assize of nuisance, as well as the action of quod permittat ftrosternere, in each of which the plaintiff was allowed judgment for the abatement of the nuisance and for damages, had been abandoned, the only remaining action by the invidual was one “on the case for damages; in which the party injured shall only recover a satisfaction for the injuries sustained; but can not thereby remove the nuisance.” Black. Com., book III, chap. 13. Lord Eldon said, in 1822, in a suit for injunction to restrain infringement of a copyright: “This court has no jurisdiction in matters of crime. ... I have nothing to do with it as a crime. The question relates only to a civil right of property.” Lawrence v. Smith, 1 Jacob, 473. In Soltau v. De Held, 2 Sim. R. N. S., 154, decided in 1851, Vice-Chancellor Kindersley said: “I am not to grant an injunction to restrain an illegal act merely because it is illegal. I could not grant an injunction to restrain a man from smuggling, which is an illegal act. If it be illegal, the illegality of it is no ground for my interfering.” “The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to rights of property. It has no jurisdiction over the prosecution, the punishment or the pardon of crimes and misdemeanors.” Ex parte Sawyer, 124 U. S., 200, 31 L. Ed., 402. “Again, it is objected that it is outside of the jurisdiction of a court of equity to enjoin the commission of crimes. This, as a general proposition, is unquestioned. A chancellor has no criminal jurisdiction. ■Something more than the threatened commission of an offense against the laws of the land is necessary to call into exercise the injunctive powers of the court.” In re Debs, 158 U. S., 593, 39 L. Ed., 1092. “Feither will equity restrain a nuisance on any idea that it is a crime.” Bishop’s New Crim. Pro., vol. 1, par. 1417, and cases cited “Equity had no criminal jurisdiction and acts or omissions will not be enjoined merely on the ground that they constitute a violation of law and are punishable as crimes.” 22 Cyc., p. 902, and numerous English and American cases cited in note 35. That public gambling could not be enjoined, as our law then stood, •was held by our Court of Civil Appeals for the Fourth District, in State v. Patterson, 14 Texas Civ. App., 465, 37 S. W., 478. The Supreme Court of Colorado approved and followed it in a similar' case. People v. District Court, 26 Colo., 386, 58 Pac., 604, 46 L. R. A., 850. The same principle was reaffirmed by the same Court of Civil Appeals in a suit to enjoin one from keeping a barber shop open on Sunday in violation of article 196 of our Penal Code. York v. Yzaguirre, 31 Texas Civ. App., 26, 71 S. W., 563. See, generally: McDonald v. Denton, 132 S. W., 823, and cases cited; Ex parte Warfield, 40 Texas Cr. R., 413, 50 S. W., 933, 76 Am. St., 724; Ex parte Roper, 61 Texas Cr. R., 68, 134 S. W., 334; Hamilton-Brown Shoe Co. v. Saxey, 131 Mo., 212, 32 S. W., 1108, 52 Am. St., 622. However, it is generally held that, in proper cases, for the protection-of public or private property rights and other civil rights, equity will enjoin certain acts, even though they constitute crimes denounced by the Penal Code. State v. Goodnight, 70 Texas, 687, 11 S. W., 119, and cases cited; State v. Patterson, supra; Weakley v. Page, 102 Tenn., 178, 46 L. R. A., 558, and cases cited; People v. St. Louis, 5 Gilman,. 10 Ill., 351, 48 Am. Dec., 339; Hamilton-Brown Shoe Co. v. Saxey, 131 Mo., 212, 52 Am. St., 622, 32 S. W., 1106; 22 Cyc., 902, note 37. For a-long time it was generally held that where an individual seeks-an injunction against a public' nuisance he must show injury special to-himself. Black. Com., book 4, chap. 13, supra; Attorney General v. Forbes, 2 Mylne & Craig, 131; Sampson v. Smith, 8 Sim., 275; Weakley v. Page, 102 Tenn., 178, 53 S. W., 551, 46 L. R. A., 552; Corning v. Lowerie, 6 Johns. Chan., 439; State v. Patterson, 14 Texas Civ. App.,. 465, 37 S. W., 478; Hughes v. Heiser, 1 Bin. (Pa.), 463, 2 Am. Dec., 459; Pittsburg v. Scott, 1 Pa., 309; Broadbent v. Imperial Gas Co., 26 Law J. Chan., 276; Solteau v. De Held, 2 Sim. R. N. S., 154; Francis v. Schoellkopf, 53 N. Y., 155. Frequently it has been held that a suit by an individual to enjoin a-public nuisance will not be entertained unless it be alleged that plaintiff will sustain a special or peculiar damage from it, an injury distinct from that done to the public at large. Bigelow v. Hartford Bridge Co.,. 14 Conn., 565, 36 Am. Dec., 502, and cases cited. “The principle has long been settled that the objection that the nuisance is a common one is not available, if it be shown that special damage-was suffered,” citing cases. Cranford v. Tyrrell, 128 N. Y., 344, 28 N. E., 514. “The principle,, then, is that in case of a public nuisance, where a bill is filed by a private person, asking for relief by way of prevention, the-plaintiff can not maintain a stand in a court of equity unless he avers and proves some special injury.” City of Georgetown v. Alexandria Canal Co., 12 Pet., 91, 9 L. Ed., 1012. Within that rule was Marsan v. French, 61 Texas, 173, 48 Am. Rep., 272. But that doctrine has been held too restrictive.. In Whitfield v. Rogers, 26 Miss., 84, 59 Am. Dec., 244, it was said: “It is well settled that a private individual may obtain an injunction to prevent a public mischief by which he is affected in common with others,” citing Eden on Inj., 267. Equity will interfere in such cases “upon the application of private parties directly affected by the nuisance.” 2 Story’s Eq. Jur., sec. 924; City of Georgetown v. Alexandria Canal Co., 12 Pet., 91, 9 L. Ed., 1012. The distinction between the rule applicable to private nuisances and that appliable to public nuisances has been stated thus: “Any person who is injured by a private nuisance may abate it; and a public nuisance may be abated by any one, even though it may not have occasioned any special damage or inconvenience to him individually.”’ Gates v. Blincoe, 2 Dana (Ky.), 158, 26 Am. Dec., 440. The proper disposition of this case does not call for any determination as to which of the foregoing propositions and decisions thereon are sound, and which are not sound; they are material herein merely in so far as it is to be presumed that they were known to our law-makers, and in so far as it is reasonable to presume that with such knowledge of the status of the decisions and such lack of decisions on the general subject they would probably say just what they meant, and that they meant precisely what they said and no more, in framing, for the first time, in this State, a statute authorizing injunctions relating to bawdy houses and disorderly houses, and providing for such suits by the State, not only by the Attorney General but by district attorneys and county attorneys as well, and providing also for such suits by “any citizen of the State,” and that “such citizen shall not be required to show that he is personally injured by the acts complained of.” Said statute having been enacted under such circumstances, instinctively, and as a matter of mature judgment, I am unwilling to go with my associates as far'as they go in construing it, in the absence of any clear and definite provision specifically authorizing the chancellor to enter such decree upon such facts as the certificate here discloses. Weighty reasons, founded upon considerations of public policy, may be advanced to show that it .would have been wise and proper for the Legislature to have framed this statute upon such broader basis, and in such explicit language as to obviate all questions concerning its purpose, and some of those reasons appear in said majority opinion; but the soundness of that contention may be conceded without touching the real question now before this court, which is: Under established rules for construction of statutes, will the language actually erupted in this statute reasonably bear the broader construction which my associates give to it? That question is not free from difficulty; and, doubtless, it was because of that fact that the Court of Civil Appeals, when called upon, as it was in this case, to place that broader construction upon the statute, hesitated and refrained from doing so, in the absence of the sanction of this court of last resort in such matters: hence the certified question. Justly and properly, neither the grounds for injunction under said statute, nor the classification or designation of defendants in actions therefor, can be extended or enlarged by the courts, by construction, for the purpose of conserving even a sound public policy relating to suppression of crime; to do so would amount to an unwarranted invasion of the sphere and powers of a co-ordinate department; consequently, this statute should be construed in accordance with the long established and well recognized rules of statutory construction which must be assumed to have been in the minds of those who made this law when they framed and adopted it. Accordingly, I will now .undertake to state, and to apply to said statute and to the facts of the case at bar, the rules which I consider applicable; and, in so doing, will consider said original Act of 1907 as a whole. Sec. 16, Pinal Title, Bev. Stats., 1911. I think the injunction provisions of said Act should be construed strictly, first, because they confer jurisdiction over subject matter and parties, and, second, because they authorize summary proceedings. Western & Atl. Ry. v. Atlanta, 113 Ga., 537, 54 L. R. A., 294, 38 S. E., 996. “Acts giving summary remedy, out of the ordinary course of judicial proceedings, should be strictly construed, and confined to the cases clearly contemplated.” Hale v. Burton (Ga.), Dudley, 105. “Statutes which provide new and extraordinary remedies must be construed strictly, both as to the cases embraced within their terms and as to the methods to be pursued.” 36 Cyc., p. 1189. “All statutes authorizing summary proceedings must be strictly construed, and strict conformity to the statute, in the exercise of the jurisdiction it confers, is essential to the regularity and validity of the proceedings.” 36 Cyc., p. 1189. “Where the jurisdiction given by the statute is clearly a summary one, it is the universal rule in this country, as well as in England, that the provisions of the statute are to be strictly construed.” Endlich on Int. of Stats., sec. 158, citing Davison v. Gill, 1 East, 64. See, also: Sutherland, Stat. Const. (2nd ed.), vol. 2, secs. 564-5; DeWitt v. Dunn, 15 Texas, 105; De la Garza v. Booth, 28 Texas, 478, 91 Am. Dec., 328; Scogins v. Perry, 46 Texas, 111; Robinson v. Schmidt, 48 Texas, 13; Keller v. Corpus Christi, 50 Texas, 614, 32 Am. Rep., 613; Spence v. McGowan, 53 Texas, 30; Murray & Bro. v. Gulf, C. & S. P. Ry. Co., 63 Texas, 407, 51 Am. Rep., 650; Schloss v. Ry., 85 Texas, 601, 22 S. W., 1014; Crowder v. Fletcher, 80 Ala., 219; Welman v. Harris, Ga. Dec., 63, pt. 2; in re Norwegian Street, 81 Pa. St., 349. Applying said well settled rules of construction, my conception of the genesis, purpose and legal effect of said statute is: The Legislature denounced, as crimes, certain things relating to the maintenance of bawdy houses and of disorderly houses, framing the penal provisions of the statute in such manner, however, as to subdivide the offense into specific phases, each admitting of, though not requiring, separate allegation, and each requiring corresponding proof, although each is punish.able by the exaction of a common misdemeanor penalty, by reason of which facts any number or all of such phases or subdivisions of the misdemeanor may be charged, conjunctively, in one count of the same indictment; then the Legislature, recognizing the necessity for the aid of equity in suppressing the evil, added the summary remedy of injunction, but, in doing so, designedly framed the injunction provisions of the statute in such manner as to cover orffy certain enumerated phases of the denounced offense, and to omit other phases thereof. In short, I think that in framing the operative injunction features of the Act the Legislature intentionally followed the ramifications of the penal provisions of the Act, step by step, and phase by phase of the stated offense, except that at least two of them, including knowingly permitting, etc., were not thereby embraced, but were omitted, purposely, and that, in enumerating who may be made defendants in actions for injunction, the Act designedly made corresponding omissions, thereby making clear and emphasizing the legislative purpose to exclude from the injunction features of the Act those omitted phases of the offense. Evidently the Legislature did not attempt, by that statute, to make the equity powers of the court as broad as the sweep of our Penal Code relating to bawdy houses and disorderly houses, or even as broad as the penal provisions of'said Act of 1907 relating to that subject. For instance: “procuring,” etc., is an offense which said Act added, as article 359a, to those theretofore defined by our Penal Code, and which is punishable by both fine and imprisonment. Art. 498, P. C., 1911; Fletcher v. State (Texas Cr. App.), 179 S. W., 879. Said article 359a thereby took its place in our Penal Code immediately above article 360 (now article 499), which is as follows: “Any room or part of a building or other place appropriated or used for either of the purposes above enumerated is a disorderly house within the meaning of this chapter.” Yet, it is obvious, I think, that said Act of 1907 does not authorize an injunction for the express purpose of preventing the commission of the criminal offense of “procuring,” etc., and such offender would not be within its injunction provisions except, possibly, in so far as his acts might constitute him an aider or ab'etter, or one interested, in the keeping of a disorderly house. Mow, that exception being established, it is natural and logical to suppose that there may be some other penal offense denounced by said Act, or phase thereof, over which the statute fails to extend the equitable powers of the court, even though therein the offender be declared subject to pains and penalties otherwise than by injunction. Likewise, knowingly permitting the keeping of a bawdy house or a disorderly house, under stated circumstances, is itself, by article 361 (now article 500), constituted a substantive offense, or, at least, a separate and distinct way of committing an offense embraced in the general definition set forth in that article, and it, also, is punishable by both fine and imprisonment; but there, as in the matter of “procuring,” etc., the statute does not provide, expressly, that knowingly permitting the commision of the offense may be enjoined. Does the Act carry, by implication, provision for an injunction against an agent under such circumstances, or against an owner of the premises who, down to the filing of the suit for injunction, had no knowledge or actual notice of the illegal use of the premises? I think not. See art. 362 (now art. 502). Clearly, in the absence of such knowledge or notice the owner could not be convicted of the penal offense of knowingly permitting, etc.; consequently she can not be enjoined as one guilty of that phase of the statutory offense, even if it be held included, by implication, by the injunction provisions of the Act. Furthermore, our statute does not declare the ground, or the house, so being used, á nuisance, and provide, in general terms, for abatement thereof, by injunction, as did the Iowa statute under which Martin v. Blattner, 68 Iowa, 286, 25 N. W., 131, 27 N. W., 244, arose. Under the phraseology relating to injunction, set out in the caption and in the body of our statute, it is the “use” of any premises, place, building, or part thereof, for certain designated immoral and illegal purposes, and only such “use,” for such purposes only, which is hereby expressly made the grounds or basis for an injunction; and, it is, I think, only those who are, or who are about to become, in some sense, active users of the property for such inhibited purpose, who are either necessary or proper parties, under the terms of our statute, in an action for such an injunction. Why should one who does not “use,” or contemplate using, property for a particular purpose be enjoined from “using” that property for that purpose? Why should any one be enjoined from doing that which he is neither doing nor thinking of doing? The “use” which may be enjoined may be “habitual, actual, threatened or contemplated”; it may be “of any premises, place, building or part thereof”; but it must be for the purpose of (1) “keeping,” or (2) “being interested in . . . the keepmg,” or, (3) “aiding in . . . the keeping,” or, (4) “abetting the keeping” of a “bawdy or disorderly house”; so the element of “use” for some one or more of those designated purposes is a component and essential part of each and every proposition of fact and of each and every act and status to which the injunction features of the Act are therein expressly made applicable. The word “purpose” in article 362a (now article 503), is qualified, in turn,, by the phrases “of keepmg,” “of being interested in,” “of aiding,” and "of abetting,” the keeping of a “bawdy or disorderly house.” Separately and together those phrases restrict the “purpose,” and help to define and illustrate the “use” which is within the contemplation of those portions of the Act which relate to injunctions. And, then, as if to firmly rivet that meaning, and insure that construction of the Act, the Legislature specifically declares who may be made defendants in such injunction suits, and in so doing follows the phraseology of that portion of the Act which defines the offenses which may be enjoined, and includes within that enumeration of parties none except “any person who may 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,” for some one of the inhibited purposes, the word “use” being thérein repeatedly employed with reference, and only with reference, to the “purpose” so defined and restricted in the first paragraph of article 362a (now article 503). “Use” has, been thus defined: “To employ for the accomplishment of a purpose; turn-to account; make use of; as, to use tools; he used a sword.” Hew Standard Dictionary. “To make use of; to convert to one’s service; to avail one’s self of; to employ; as, to use a plow, a chair, a book.” Webster’s Hew International Dictionary. These definitions suggest the sense in which the word “use” is employed, or used, in this statute. For what reason, if not to restrict to the particular “uses” specially mentioned in article 362 (now article 502) was any enumeration of bawdy house or of disorderly house purposes made therein? The general terms would have been simpler and all-inclusive. And why, if not with the same purpose of restricting the operation of the injunction features of the statute, did the Act set out an enumeration of the classes of persons who may be joined in the action as defendants, and why do such enumerations of uses, purposes and defendants exactly correspond? It is very significant, I think, that in specifically enumerating the penal offenses, or phases thereof, to be enjoined, the Act distinctly fails, (a) to mention, in express terms, either “procuring,” etc., or “knowingly permitting,” etc., although each, by that Act, is constituted a misdemeanor, under heavy penalty, and also distinctly and correspondingly fails, (b) to mention, or designate as a necessary or proper party defendant, either one who “procures " etc., or one who “knowingly permits," etc. Why either omission, and why do they correspond, exactly, like the tongue and the groove, if they were not intended to fit each other, and if they were not meant to exempt those offenses from the injunction features of the Act ? It is noticeable that in the portions of said statute relating to. injunction there is an utter absence of the word “owner” or “agent,” or any other term aptly designating one who may commit said offense of “knowingly permitting,” etc., although, in defining penal offenses involving “knowingly permitting,” etc., this statute, in two instances, in article 361 (now article 500), and again in article 362 (now article 501) does distinctly employ the word “owner” and also the word "agent,” or some word of identical import. Why this striking contrast in phraseology, if not to mark and emphasize a.transition, so far as these offenses, or phases of an offense, are concerned, between the treatment thereof under the penal provisions and the treatment thereof under the injunction provisions of that statute? Moreover, the same distinction is clearly indicated, if not conclusively shown, by the caption, or title, of said Act. Among the purposes declared therein are these: “Stating who shall be guilty, of the offense of keeping, being concerned in keeping or permitting to be kept, a bawdy house and a disorderly house, and prescribing the punishment therefor; also by adding articles 362a and 362b, to prevent, by means of the writ of injunction, the habitual, actual, contemplated or threatened use of any premises, place, building or part thereof, for the purpose of keeping or being in any manner interested in or responsible for the keeping of a bawdy house or disorderly house,” etc. (Italics mine.) The words “permitting to be kept” are therein restricted to articles defining penal offenses, and neither those words nor equivalent terms are used, in the caption, with reference to tire added articles relating to injunction. The words “responsible for the keeping,” as used in the caption, in relation to injunctions, clearly refer to some character of active participation in the crime, such as “aiding” or “abetting” in the commission of the offense, and do not include a merely passive attitude, such as'“knowingly permitting” the commission of the offense. “Responsible” has been thus defined: “Answerable, as for an act performed, or its consequences; . . . accountable; . . . with regard to the legal use of the word, two conceptions are often confused —-namely, that of the potential condition of being bound to answer or respond in case a wrong should occur, and that of the actual condition of being bound to respond because a wrong has occurred. For the first of these responsible is properly used, and for the second liable ” Cent. Diet. Beyond a reasonable doubt, it seems to me, the “wrong” to which “responsible,” as used in said caption, refers, is only some “wrong” or crime denounced by said statute, in which the party to be enjoined has actively participated, or is about to actively participate. But, even if I am wrong in that conclusion, and if “responsible” is broad enough to include the wrong of “knowingly permitting,” etc., I can not comprehend how it can possibly include one who is neither legally nor morally guilty of any crime or wrong denounced by said statute, as, for instance, an owner without knowledge or notice of the illegal use of the leased premises. Why should one in that status of innocence be subjected to the humiliating notoriety and expense of such a suit for injunction, unless that be reasonably necessary to stop the evil? The Legislature seems not to have considered it necessary or wise. The change from “permitting to be kept,” in the portion of the caption relating to penal provisions, to “responsible for the keeping,” in the portion of the caption relating to injunctions, indicates, too clearly for argument, that some difference in meaning was contemplated; and, since the former term carried the idea of mere passive acquiescence in the crime, I conclude that the latter term was intended to carry the idea of some kind of active participation therein. Besides that, the language of the caption is, “responsible for the keeping,” etc., and not responsible for Icnowingly permitting to be loept. Here, again, the change in phraseology is such as to exempt from the injunction features of the Act the crime of “knowingly permitting,” etc. The framework and phraseology of the statute are responsive to my view of the caption, and furnish what I consider convincing proof that the Legislature understood it as I do. Indeed, I gravely doubt whether the caption is broad enough to include an injunction against either of the defendants under the facts of the case at bar. Three times in that Act did the Legislature clearly indicate its purpose not to authorize an injunction against one who merely “knowingly permits” the commission of the offense; first, in the caption, second, in the enumeration of the offenses which may be enjoined by virtue of that Act, and, third, in the designation of parties defendant in actions for injunction thereunder. When the Act as a whole is considered, and when it is remembered that it both confers jurisdiction and provides a remedy of a summary nature, it seems to me that both the enumeration of offenses which may be enjoined by virtue of its provisions, and the corresponding enumeration of classes of persons who may be made defendants in suits for injunction under said Act, were intended to be exhaustive, excluding all other offenses and all other defe