Ex Parte Roper , 61 Tex. Crim. 68 ( 1910 )

In this case, on a former day of this term, relator was remanded. Soon thereafter a motion for rehearing was filed on his behalf. In view of the retirement of Judge McCord by the expiration of his term of office, and the resignation of Judge Ramsey, and the fact that the personnel of the court has so much changed, it seems appropriate and due to the parties interested that we should notice at some length the several grounds set up in the motion.

All the matters relied on originally and now urged in motion for rehearing were discussed at considerable length in the original opinion which was delivered by Judge Ramsey, and it seems unnecessary for us to take up these several matters in detail. The substantial questions relied on as a basis for the writ were distinctly held adversely to relator in the case of Ex parte Allison, 48 Tex.Crim. Rep.. Being dissatisfied with the result of that proceeding, soon thereafter Allison made application for writ of habeas corpus to our Supreme Court. On hearing, in an elaborate opinion delivered by Judge Gaines in99 Tex. 455, the same conclusion was reached, and practically all the matters relied upon by Allison there and relied upon by relator here were decided and adjudged adversely to the contentions of relator urged in this case. The Allison case in both courts, as the official reports will show, was most thoroughly and elaborately argued by counsel of the highest ability, and the opinions of both courts contain intrinsic evidence of the fact that the matters were exhaustively investigated and that the questions presented received the most careful consideration. There is nothing new in the law of this case, or any view of the law arising from the facts to differentiate or distinguish it from the Allison case, and unless, therefore, we were prepared to break away from the decisions of both this court and the Supreme Court, we must and should hold adversely to relator in this case. I heartily agree with Judge Ramsey in the following strong statement made by him in the case of Lewis v. State, 58 Tex.Crim. Rep., 127 S.W. Rep., 808:

"We have found it, therefore, unnecessary to state our own opinion. For the reasons given here, we feel that at this late date to sweep aside the established rule and unsettle the law still further would be, if not judicial usurpation, at least without sufficient warrant in law and utterly inexcusable, and to proclaim ourselves as unworthy to sit on this high tribunal. It should never be forgotten that this is a land where the law reigns supreme. Uniformity and certainty of decision is of the highest importance. We are not so much to declare our personal views of what the law ought to be, but to lay down with as much definiteness and certainty as may be what it is, and, when so adjudged, to enforce it with inflexible fidelity, without passion, and without weakness. If, coming to this high position of power and responsibility, I may, moved by a mere personal opinion, in my day and time, unsettle and undo the work of the great men who have preceded me, consistent, coherent, and undoubted from the day when I was yet a briefless lawyer, the man who on the morrow takes my place will have the same warrant to undo and unsettle the rules we establish, and so on to the end of time. So that, from having a country governed, controlled and regulated by law, we shall have a land where the mere personal opinions of the judge in office at the time shall rule the fortunes and control and mar the destinies of a free people, and by force of an election, where such punishment was never considered, condemn the citizen to penal servitude as a felon for an act not held to be such under the decisions of this court time out of mind. Against this doctrine of personal rule and unrestrained absolutism we resolutely set our faces, and prefer to follow the law as it has been so long and so often declared, conscious of our responsibility, and saying with all sincerity of the law that it must and will be upheld, and that, though it slay me, yet will I trust in it."

The same view of the high duty owing by a judge was thus well expressed by Justice White, now Chief Justice of the Supreme Court of the United States, in the case of Pollock v. Farmers' Loan Trust Co., 157 U.S. 429, where he says:

"The conservation and orderly development of our institutions rest on our acceptance of the results of the past, and their use as lights to guide our steps in the future. Teach the lesson that settled principles may be overthrown at any time, and confusion and turmoil must ultimately result. In the discharge of its functions of interpreting the Constitution this court exercises an august power. It sits removed from the contentions of political parties and the animosities of factions. It seems to me that the accomplishment of its lofty mission can only be secured by the stability of its teachings and the sanctity which surrounds them. If the permanency of its conclusions is to depend upon the personal opinions of those who, from time to time, may make up its membership, it will inevitably become a theatre of political strife, and its action will be without coherence or consistency. There is no great principle of our constitutional law, such as the nature and extent of the commerce power, or the currency power or other powers of the federal government, which has not been ultimately defined by the adjudications of this court after long and earnest struggle. If we are to go back to the original sources of our political system, or are to appeal to the writings of the economists in order to unsettle all these great principles, everything is lost and nothing saved to the people. The rights of every individual are guaranteed by the safeguards which have been thrown around them by our adjudications. If these are to be assailed and overthrown, as is the settled law of income taxation by this opinion, as I understand it, the rights of property, so far as the Federal Constitution is concerned, are of little worth. My strong convictions forbid that I take part in a conclusion which seems to me so full of peril to the country. I am unwilling to do so, without reference to the question of what my personal opinion upon the subject might be if the question were a new one, and was thus unaffected by the action of the framers, the history of the government, and the long line of decisions by this court. The wisdom of our forefathers in adopting a written constitution has often been impeached upon the theory that the interpretation of a written instrument did not afford as complete protection to liberty as would be enjoyed under a constitution made up of the traditions of a free people. Writing, it has been said, does not insure greater stability than tradition does, while it destroys flexibility. The answer has always been that by the foresight of the fathers the construction of our written Constitution was ultimately confided to this body, which, from the nature of its judicial structure, could always be relied upon to act with perfect freedom from the influence of faction, and to preserve the benefits of consistent interpretation. The fundamental conception of a judicial body is that of one hedged about by precedents which are binding on the court without regard to the personality of its members. Break down this belief in judicial continuity, and let it be felt that on great constitutional questions this court is to depart from the settled conclusions of its predecessors, and to determine them all according to the mere opinion of those who temporarily fill its bench, and our Constitution will, in my judgment, be bereft of value, and become a most dangerous instrument to the rights and liberties of the people."

Not only is this view of our duty, as I think, conclusive of qualified judges, but there is yet another view from the force and correctness of which, as it seems to me, there can be no escape. The suit out of which this application grew was a civil suit pending in the District Court of Johnson County which might, under some conditions at least, finally reach the Supreme Court of this State, and in respect to which its jurisdiction and judgment might be involved and applied. It was a case in which, in the nature of things, since we have no civil jurisdiction, this court can never take cognizance. Now, would it not be indeed an anomaly to say that for disobedience of an injunction issued in a civil case, of which we could never obtain jurisdiction, that we would, for a disobedience thereof, discharge an offender where in the appellate court to which his case would go no such discharge could be obtained? Would it not be an anomaly resulting in legal anarchy to say that if one enjoined in respect to a matter such as is involved in this case, that if he went across the hall to the Supreme Court and made application to that great tribunal for a discharge, he would be told that under the law as there set up and as heretofore settled in this court, no relief could be granted him, and that he would only have to walk across the hall to receive from this court an immunity bath, receive a discharge and absolution from all his sins, and sent on his way rejoicing with a new song of peace and triumph in his mouth? Such a state of affairs no good citizen, it seems to me, can contemplate without alarm. For myself, I am unwilling to see this court made the dumping and clearing house of those who would defy the just authorities of the court. Besides, almost this identical question has received the express approval very recently of this tribunal. In the case of Ex parte Marie Morgan, 57 Tex. Crim. 551, which was a petition for writ of habeas corpus on account of an arrest for the violation of an injunction against the keeping of a bawdy house, the proceeding was upheld, and the relator refused a discharge. That case did not in terms present the identical question here presented, but was inevitably and of necessity involved in it. In the case of Lane v. Bell, 115 S.W. Rep., 918, out of which Ex parte Morgan, supra, grew, a law substantially similar to that here attacked, and a proceeding almost identical to the one here assailed, was by the Court of Civil Appeals upheld and sustained.

In this connection, the following quotation from the opinion of Judge Gaines in Ex parte Allison, 99 Tex. 455, is worthy of note:

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

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

"We deem it unnecessary to pursue this discussion further. The principal objections urged against the validity of the act have been fully and ably discussed in the cases of Mugler v. Kansas,123 U.S. 623; Littleton v. Fritz, 65 Iowa 488, and Carleton v. Rugg, 149 Mass. 550, previously cited, and in all of which the validity of similar statutes was upheld. (See, also, State v. Saunders, 66 N.H. 39, in which the main question is exhaustively discussed in an opinion characteristic of that eminent court.) In this same case, upon a writ of habeas corpus sued out by this relator before our Court of Criminal Appeals, that court maintained the constitutionality of the act in question, and remanded the relator to the custody of the sheriff. That court within its jurisdiction is a court of equal dignity and authority with this court. Courts will not declare an act of the Legislature invalid as being in conflict with the constitution, unless it appear to them to be clearly so. For a stronger reason, they should not so declare where the validity of the statute has been upheld by another court of last resort."

The Supreme Court of the United States, Mr. Justice Miller, rendering the decision in Eilenbecker et al. v. District Court of Plymouth County, Iowa (134 U.S. 31), in passing on the questions in this case, says:

"The judgment which we are called upon to review is one affirming the judgment of the District Court of Plymouth County in that State. This judgment imposed a fine of five hundred dollars and costs on each of the six plaintiffs in error in this case, and imprisonment in the jail of Plymouth County for a period of three months; but they were to be released from confinement if the fine imposed was paid within thirty days from the date of the judgment.

"This sentence was pronounced by the court as a punishment for contempt in refusing to obey a writ of injunction issued by that court, enjoining and restraining each of the defendants from selling, or keeping for sale, any intoxicating liquors, including ale, wine and beer, in Plymouth County, and the sentence was imposed upon a hearing by the court, without a jury, and upon evidence in the form of affidavits. . . .

"The first observation to be made on this subject is, that the plaintiffs in error are seeking to reverse a judgment of the District Court of Plymouth County, Iowa, imposing upon them a fine and imprisonment for violating the injunction of that court, which had been regularly issued and served upon them. Of the intentional violation of this injunction by plaintiffs we are not permitted to entertain any doubt, and, if we did, the record in the case makes it plain. Neither is it doubted that they had a regular and fair trial, after due notice, and opportunity to defend themselves in open court at a regular term thereof.

"The contention of these parties is, that they were entitled to a trial by jury on the question as to whether they were guilty or not guilty of the contempt charged upon them, and because they did not have this trial by jury they say that they were deprived of their liberty without due process of law within the meaning of the Fourteenth Amendment to the Constitution of the United States.

"If it had ever been understood that proceedings according to the common law for contempt of court have been subject to the right of trial by jury, we have been unable to find any instance of it. It has always been one of the attributes — one of the powers necessarily incident to a court of justice — that it should have this power of vindicating its dignity, of enforcing its orders, of protecting itself from insult, without the necessity of calling upon a jury to assist in the exercise of this power.

"In the case in this court of Ex parte Terry, 128 U.S. 289 (32:405), this doctrine is fully asserted and enforced, quoting the language of the courts in the case of Anderson v. Dunn,19 U.S. 6 Wheat., 204, 227 (5:242,247), where it was said that `courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect and decorum in their presence, and submission to their lawful mandates;' citing with approbation the language of the Supreme Judicial Court of Massachusetts in Cartwright's Case,114 Mass. 230, 238, that `the summary power to commit and punish for contempt tending to obstruct or degrade the administration of justice is inherent in courts of chancery and other superior courts, as essential to the execution of their powers and to the maintenance of their authority, and is part of the law of the land, within the meaning of Magna Charta and of the twelfth article of our Declaration of Rights.'

"And this court, in Terry's Case, held that a summary proceeding of the Circuit Court of the United States without a jury, imposing upon Terry imprisonment for the term of six months, was a valid exercise of the powers of the court, and that the action of the Circuit Court was also without error in refusing to grant him a writ of habeas corpus. The case of Terry came into this court upon application for a writ of habeas corpus, and presented, as the case now before us does, the question of the authority of the Circuit Court to impose this imprisonment on a summary hearing without those regular proceedings which include a trial by jury, which was affirmed. The still more recent cases of Ex parte Savin, 131 U.S. 267 (33:150), and Ex parte Cuddy, 131 U.S. 280 (33:154), assert very strongly the same principle. In Ex parte Robinson, 86 U.S. 505, 19 Wall., 505 (22:205), this court speaks in the following language:

"`The power to punish for contempts is inherent in all courts. Its existence is essential to the preservation of order in judicial proceedings, and the enforcement of the judgments, orders and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power.' . . .

"So far from any statute on this subject limiting the power of the courts of Iowa, the Act of the Legislature of that State, authorizing the injunction which these parties are charged with violating, expressly declares that for violating such injunction a person doing so shall be punished for the contempt by a fine of not less than five hundred or more than a thousand dollars, or by imprisonment in the county jail not more than six months, or by both such fine and imprisonment, in the discretion of the court. So that the proceeding by which the fine and imprisonment imposed upon these parties for contempt in violating the injunction of the court, regularly issued in a suit to which they were parties, is due process of law, and always has been due process of law, and is the process or proceeding by which courts have from time immemorial enforced the execution of their orders and decrees, and can not be said to deprive the parties of their liberty or property without due process of law.

"The counsel for plaintiffs in error seek to evade the force of this reasoning by the proposition that the entire statute under which this injunction was issued is in the nature of a criminal proceeding, and that the contempt of court of which these parties have been found guilty is a crime for the punishment of which they have a right to trial by jury.

"We can not accede to this view of the subject. Whether an attachment for a contempt of court, and the judgment of the court punishing the party for such contempt, is in itself essentially a criminal proceeding or not, we do not feel it necessary to decide. We simply hold that, whatever its nature may be, it is an offense against the court and against the administration of justice, for which courts have always had the right to punish the party by summary proceeding and without trial by jury; and that in that sense it is due process of law within the meaning of the Fourteenth Amendment of the Constitution. We do not suppose that that provision of the Constitution was ever intended to interfere or abolish the powers of the courts in proceedings for contempt, whether this contempt occurred in the course of a criminal proceeding or of a civil suit.

"We might rest the case here; but the plaintiffs in error fall back upon the proposition that the statute of the Iowa Legislature concerning the sale of liquors, under which this injunction was issued, is itself void, as depriving the parties of their property and of their liberty without due process of law We are not prepared to say that this question arises in the present case. The principal suit in which the injunction was issued, for the contempt of which these parties have been sentenced to imprisonment and to pay a fine, has never been tried so far as this record shows. We do not know whether the parties demanded a trial by jury on the question of their guilty violation of that statute. We do not know that they would have been refused a trial by jury if they had demanded it. Until the trial of that case has been had they are not injured by a refusal to grant them a jury trial. It is the well-settled doctrine of this court that a part of a statute may be void and the remainder may be valid. That part of this statute which declares that no person shall own or keep, or be in any way concerned, engaged or employed in owning or keeping any intoxicating liquors with intent to sell the same within this State, and all the prohibitory clauses of the statute, have been held by this court to be within the constitutional powers of the State Legislature, in the cases of Mugler v. Kansas,123 U.S. 623 (31:205), and Powell v. Pennsylvania, 127 U.S. 678 (32:253).

"If the objection to the statute is that it authorizes a proceeding in the nature of a suit in equity to suppress the manufacture and sale of intoxicating liquors which are by law prohibited, and to abate the nuisance which the statute declares such acts to be, wherever carried on, we respond that, so far as at present advised, it appears to us that all the powers of a court, whether at common law or in chancery, may be called into operation by a legislative body for the purpose of suppressing this objectionable traffic; and we know of no hindrance in the Constitution of the United States to the form of proceedings, or to the court in which this remedy shall be had. Certainly it seems to us to be quite as wise to use the processes of the law and the powers of the courts to prevent the evil as to punish the offense as a crime after it has been committed.

"We think it was within the power of the court of Plymouth County to issue the writs of injunction in these cases, and that the disobedience to them by the plaintiffs in error subjected them to the proceedings for contempt which were had before that court."

In Rhodes v. Saunders, 18 L.R.A., 646, is a compilation of authorities, all holding that the statute authorizing the issuance of a writ of injunction in this character of case is valid, and that courts have the power to punish for contempt without the intervention of a jury, quoting approvingly the following language: "Every place where a public statute is openly, publicly, repeatedly, continuously, persistently and intentionally violated, is a public nuisance and may be suppressed."

The question presented in the dissenting opinion of Judge Davidson, in respect to these statutes and proceedings, operating to deny a citizen the right of trial by jury, is opposed to the decisions of this court and our Supreme Court, and the rule generally obtaining elsewhere. We might content ourselves with the above statement. There are substantial reasons vitally affecting the quiet and welfare of the citizenship of the State which were moving considerations before the Legislature for inducing the enactment of these laws, and which are also strong reasons and considerations why they should be here sustained. The legislative history of the last few years will demonstrate that in practically all legislation in support and aid of local option laws, in respect to gaming and houses of prostitution, men of widely differing views, with reference to the sale of intoxicating liquors under the sanction and safeguards of the law in communities where public opinion sustained such sale, have united in one common bond of fraternity to enact such legislation as might make prohibitory laws effective in communities and sections where such laws had been voted. Again, it is a fact known of all men that in almost every great city and center of this State where the sale of intoxicating liquors is permitted by law, that saloon limits have been provided and certain areas fixed in residence sections of such cities where no saloons can be operated. In addition to this, the law fixes a heavy license for one who would sell liquors, and makes quite ample provision for the keeping of an orderly house, for the prevention of gambling, the visiting of lewd women and the inhibition of selling intoxicating liquors to habitual drunkards, as well as certain closing hours. The public and the State are interested in the fair and reasonable enforcement of such regulatory laws. If, however, we are to permit one, under the guise of keeping a drugstore and under the pretence of selling on prescription, to convert his place of business into a common tippling house where the scarlet women may abide, and where the habitual drunkard and minor may receive a welcome, and no hours are respected, and no safeguards are provided, where the State's revenue is diminished, and where lawlessness would breed, and lawbreakers would find an asylum, infinite damage would be done to the State. It would constitute discrimination and a manifest injustice against the man seeking to do business authorized by law, and under the safeguards and provisions of the law. Such a place might be as destructive to property as building a powder mill next to it, and as injurious to society as anything of which one could easily conceive. Now, can it be said that the State has no interest in preventing such a condition of affairs? Is it to be said that the State can only proceed by criminal prosecutions, and that the strong arm of the law by injunction is to be denied the State in its effort to protect society? It is my view, and such seems to be in accordance with the great weight of authorities everywhere, and the settled policy of this State in all the courts, to proceed against such a man with all the power of all the courts and with a mailed hand that would be sufficient for the due and proper protection of society.

It was, however, urged in argument that under the facts of this case relator was entitled to his discharge. The record shows that, as is usual in such cases, the writ of injunction ran against not only the relator but against his agents, servants and employes enjoining them from the unlawful sale of liquors in the house and place where he was doing business. The evidence shows that the sale took place in the house, and that such sale was an unlawful sale. There is no suggestion that the sale was made by some one not connected as servant or employe in the house, but because the relator testified and claimed on the hearing that he had no financial interest in the business, but that same belonged to his minor son, it is here contended, as a matter of law, that he is entitled to his discharge. It appears, however, that his son, whom he claims was the owner and proprietor of the business, was a minor. It is shown that relator leased the house. It is shown that he obtained license from the federal government and from the authorities of this State to do business. The business, therefore, was being done under the shelter and sanction of his name and under his authority and with reference to a license issued to him, and not to his son. We can well understand how the court below, acquainted with the parties and familiar with all the facts, might well have rejected as untrue the disclaimer of relator of having any connection with or ownership of the business. It would indeed be a destructive rule of decision to expect this court, in the face of a finding by the court below discrediting the contention of relator of lack of ownership in the business, where all the other facts, leasing the house, obtaining license for the conduct of the business, showed his connection, to overturn and discredit the finding of the trial court. We are not prepared to do this, nor do we think we should do it.

A careful consideration of the motion, which was prepared with the utmost skill and presented and argued with the greatest ability, has convinced us that the original disposition of the case was proper, and that no ground exists why it should be set aside. It is, therefore, ordered that the motion for rehearing be and the same is hereby in all things overruled.

Overruled.