State Ex Relator McNamara v. Clark

When our State was first organized as a State government one appellate court only was created named "The Supreme Court." The people by our then Constitution (1845) expressly gave it appellate jurisdiction of both criminal and civil causes, direct from the trial courts. Like jurisdiction — of both criminal and civil — was then also given to such courts of final appellate jurisdiction of every other State of the United States, and in England and Canada, whatever named — in fact, of every English speaking people on the globe. And with some minor exceptions, our Constitutions of 1861, 1866 and 1869, were to the same effect.

The rapid increase in population, and consequent increase in legal business, in our State, soon after the war (by 1876), showed that it was impossible for one appellate court to dispose of all business, criminal and civil. This was demonstrated by the fact that our Supreme Court by that time was some three or four years behind in its decisions, *Page 588 — like it is now, — and every day getting still further behind. It was then not infrequent for persons convicted of crime, who appealed, to have to lie in jail for a year or longer, awaiting a decision of their cases, — an outrage on justice and humanity, and a very great, and unnecessary, expense to our counties and State. The Supreme Court itself, in endeavoring to avoid this, began to devote more of its time to deciding criminal, to the necessary neglect of civil, causes, thereby, in effect, denying justice in all civil causes.

With this state of fact staring them in the face, and getting worse, day by day, our people wisely and humanely determined to remedy these crying evils. It was then (1876) thought by our people and wisest and best statesmen that a solution would be had by taking all jurisdiction of criminal business away from the Supreme Court, confining it exclusively to civil business, and creating a new appellate court of supreme and final jurisdictionin all criminal matters. So this was done by the people in their Constitution of 1876. That is, they changed the jurisdiction of our Supreme Court so as to deprive it absolutely of any and all jurisdiction in criminal matters, and created a new court called "Court of Appeals," and gave it supreme and exclusivejurisdiction in all criminal matters. At that time it was believed that this new appellate court could not only keep up with all criminal business, but could also decide and keep up with appeals in civil causes from our County Courts as well; hence, appeals from our County Courts in civil matters were denied the Supreme Court, and jurisdiction thereof given exclusively to said new appellate court.

By actual experience, as early as 1891, it was demonstrated that the Supreme Court could not even keep up with its civil appellate jurisdiction as restricted by our Constitution of 1876, and that said new appellate court could not keep up with its exclusive jurisdiction in criminal matters, and appeals too from our County Courts in civil matters, and also that it was very bad policy to have two tribunals of final appellate jurisdiction in civil matters, so that in 1891 the people determined to again give relief, and amended our 1876 Constitution, and then createdCourts of Civil Appeals, and gave them exclusive appellate jurisdiction in all civil matters direct from the trial courts, and further restricted the jurisdiction of the Supreme Court, not only exclusively to civil matters, but even as to certain character of civil matters, made the decision of said civil appellate courts final, and prohibited the Supreme Court from having any jurisdiction thereof; and also prohibited jurisdiction to the Supreme Court from any trial court, and restricted its jurisdiction to certain character of civil business from the new Courts of Civil Appeals alone. And at the same time, the people by these amendments of 1891, absolutely took all civiljurisdiction away from said "Court of Appeals," changed its name to "The Court of Criminal Appeals," and restricted its jurisdiction exclusively to criminal matters.

It is needless to call attention to the recent legislation, authorized *Page 589 by said 1891 amendments, still further restricting the jurisdiction of the Supreme Court in even civil matters.

The fact that the people by their Constitution and amendments thereto, as stated, have taken absolutely all jurisdiction incriminal matters, and a great deal of its original civil jurisdiction, away from the Supreme Court, has not been from any lack of confidence therein, or the great judges who have constituted that court, but has been from actual necessity. Since our people have thus provided a court of supreme, final and exclusive jurisdiction in criminal matters, and first set the example, several other States of the United States, and England and Canada, have adopted our plan, and likewise have established courts of exclusive jurisdiction in criminal matters.

I have given briefly the constitutional history of our appellate courts, so as to show the reason, and to emphasize the facts, that:

1. The Court of Criminal Appeals has exclusive, supreme andfinal jurisdiction in all criminal matters, and

2. The Supreme Court has no jurisdiction whatever in criminal matters, but it is prohibited from taking any such jurisdiction, and that it has only very limited appellate jurisdiction in even civil matters. (The sole exception to what might be called a quasi criminal matter is the writ of habeas corpus in civil causes, which I will later discuss.)

The people select and elect the judges for both of said courts. They are just as capable of selecting and electing for the one as for the other. They select and elect the judges of the Court of Criminal Appeals for the purpose, among others, of determining the constitutionality and construction of criminal laws; and select and elect the judges of the Supreme Court for an altogether different purpose. The Supreme Court, discussing this very question in Comrs. Ct. v. Beall, 98 Tex. 104, said: "We think it a reasonable deduction from the establishment of two courts of final resort, one for criminal and the other for civil cases, that it was contemplated that the decisions of each upon the questions pertaining peculiarly to its own jurisdiction should be authoritative and controlling upon all other courts. Let us take the Court of Criminal Appeals, for example. What was more reasonable to conclude than that the court would be composed of lawyers, not only learned in the law, but especially versed in the jurisprudence of its criminal branch and of great experience in the criminal courts, and that by reason of this fact and of the duty devolved upon them to determine, with rare exceptions, questions of criminal law only, their decision upon such questions would be entitled to more weight than that of a court of civil jurisdiction only." The people have expressly and repeatedly determined, and emphatically declared, in substance and effect, by their Constitution, and amendments thereto, that the Court of Criminal Appeals alone shall determine the constitutionality, vel non, of any and every criminal law enacted by our Legislature, and that our Supreme Court shall not do so.

The Supreme Court, as heretofore constituted, has expressly declared *Page 590 and held, that the Court of Criminal Appeals alone has jurisdiction to determine the constitutionality, vel non, and construction, of every criminal statute, and that the Supreme Court has not that right nor jurisdiction. And in such matters said: "The Supreme Court should follow the decisions of the Court of Criminal Appeals," and "We think we may safely say that it has been the rule of this court, . . . to follow the construction placed upon the statutes embraced in our Penal Code and Code of Criminal Procedure by the Court of Criminal Appeals," and that said "rule is binding authority upon us." So held the Supreme Court unanimously through Chief Justice Gaines, when that court was composed of him and Justices Brown and Williams. (Comrs. Ct. v. Beall, 98 Tex. 104, 108-9; Green v. Southard,94 Tex. 470; State v. Schwarz, 103 Tex. 119 [103 Tex. 119], and other cases.) And they announced and adhered to that rule, even when they were unanimously of the opinion this court was in error. Not only is the Supreme Court bound by the decisions of this court on criminal matters, but every other lower court of this State for much stronger reasons is so bound. The civil appellate courts have so held.

The Supreme Court of the United States has always held the same doctrine, in Forsyth v. Hammond, 166 U.S. 506, 518-19, saying: "The construction by the courts of a State of its Constitution and statutes is binding on the Federal courts. We may think that the Supreme Court of a State has misconstrued its Constitution, or its statutes, but we are not at liberty to therefore set aside its judgments. That court is the final arbiter as to such questions."

The conclusion is therefore inevitable, that as to all criminal statutes, any opinion, judgment or decision of the Supreme Court of this State as to its constitutionality, has no binding force or effect whatever as authority on any court, or person, in this State. It would have no more authority or legal effect, for instance, than the opinion, judgment or decision, of any court, from the highest to the lowest, of the State of Maine would have, if such court of Maine should hold that a statute of our State under our Constitution was unconstitutional. In other words, any decision, judgment or opinion of our Supreme Court, as to the constitutionality of any criminal statute passed by our Legislature, is without legal authority, power or effect, on any court, or person, in this State. As to criminal statutes, our Supreme Court is just as foreign to our State, and every person and court in it, as if in truth it was a court of the State of Maine, elected by the people of Maine, and located and holding its sessions in said State, under and by virtue of its laws, and not ours.

That our pool hall statute is a criminal statute, and depends exclusively for its construction and enforcement on the criminal courts, no one can question. It is as precisely and certainly so as our local option liquor prohibition statutes are. It was specifically founded upon and wholly modeled after and follows them as directly and positively as could be done. Our Supreme Court in Comrs. Court v. Beall, supra, *Page 591 p. 108, held: "We are of opinion that our local option statutes are strictly and essentially criminal laws, and as such primarily subject to the decisions of the criminal courts as to their validity and construction." If our people had intended that the Supreme Court should have had any sort of supervisory jurisdiction over the Court of Criminal Appeals, they would have in some direct provision so declared. On the contrary, in their constitutions and amendments thereto, they have clearly excluded any such jurisdiction from the Supreme Court.

Notwithstanding our Supreme Court had no right, jurisdiction, power or authority to decide that our pool hall law is unconstitutional, but, on the contrary, is by our Constitution expressly prohibited from doing so, yet, in the case of Ex parte Mitchell, 177 S.W. Rep., 953, unfortunately, and it seems to me, without mature investigation or deliberation, said that that law was unconstitutional. And this, too, after, and in the very face of, the decision of this court (Ex parte Francis, 72 Tex. Crim. 304), both upon reason and authority, after the most thorough investigation, holding that said statute is clearly valid and constitutional; this court being the only court of supreme and final jurisdiction, power and authority which can legally determine such question. It will be noted that neither the report of the Mitchell case, nor the memo. opinion therein, in any way discloses how the question therein arose, or could have arisen. On the contrary, it seems, the Supreme Court's holding therein was merely gratuitous.

Said holding in the Mitchell case, on its face, shows that it was hastily delivered, on the last opinion day of the term, and in no way backed by reason or argument. The holding itself stating, "a full opinion will be later filed, the preparation of which has been prevented by the approaching close of the term." The report of that case also shows, that no one appeared by brief or otherwise for the State, respondent. More than a year has now passed since it was handed down, and still no "full opinion" has yet been filed. The only two cases cited as authority are State v. Swisher, 17 Tex. 441, on one proposition, and Brown Cracker, etc., Co. v. Dallas, 104 Tex. 290 [104 Tex. 290], on the only other proposition. Before the opinion in said Ex parte Francis case, supra, was handed down, in our thorough investigation of the question and authorities, we, more than once, discussed said Swisher case and the questions in said Francis case, with the late lamented Chif Justice Brown of the Supreme Court. He was very familiar with the Swisher case, and with much emphasis said to me: "The oldSwisher case is not the law, and never was the law." After the opinion in the Francis case was handed down by this court, and just after the Mitchell case had been submitted in the Supreme Court, Chief Justice Brown called for, and was furnished, a copy of our opinion in the Francis case. After thoroughly considering the questions desided therein, and that decision, he more than once said to us: "Your decision is unquestionably correct and the law." Chief Justice Brown died May 26, 1915, an appointment to the vacancy created thereby, was made June 1st *Page 592 (177 S.W. Rep., 953) and the mere memo. holding in the Mitchell case filed June 23, 1915. I have no apology to make for consulting, and discussing with Chief Justice Brown the Swisher and Francis cases. He was a member of our Supreme Court for many years, and was entirely familiar with our Constitution and the construction and application thereof, and the decisions of our courts, and had himself written a large number of opinions on constitutional questions. I felt I could get aid from him, as well as I could by poring over text-book writers, and opinions of other judges and courts. I regarded him, as I think he was generally regarded, one of our great judges. I have no doubt if he had lived a short time longer, the decision in the Mitchell case would have been the reverse of what it is. What I say is not intended as any reflection, and not even a criticism, of anyone; I am merely recording recent pertinent events.

No one can read the opinion in the Swisher case and reach any other conclusion than that:

1. It was not the opinion, upon mature deliberation and investigation, of the great judges who then composed that court, for they expressly say, "the question presented is not now of very general interest, as the act, whether constitutional or not,has been repealed. We shall not, therefore, give to it the elaborate investigation that we would otherwise have felt called on to bestow on it." (p. 448.) And,

2. It, therefore, was unquestionably dictum, pure and simple, and no authority whatever. Chief Justice Brown in Grigsby v. Reib, 105 Tex. 597, correctly defined dictum.

Our Supreme and Civil appellate courts, and this court, have so often held and decided the reverse of what was said as dictum in the Swisher case, as we show in the opinion in the Francis case, as, without any doubt, to destroy, annul and overrule the dictum in the Swisher case, as even any suggestion of argument or authority.

Still further, we show in the Ex parte Mode case,77 Tex. Crim. 432, 180 S.W. Rep., 708, that the opinion of every other highest appellate court of every State of the United States (with possibly one exception) holds the reverse of what is said as dictum in the Swisher case and held in the Mitchell case. So that it is worse than idle to further discuss or consider the Swisher case as any authority whatsoever.

Chief Justice Brown wrote the opinion in Brown Cracker Co. v. Dallas, supra, just shortly before we had the Francis case before us. He knew his opinion in that case was wholly inapplicable to the Francis case, else he could not, and would not, have so emphatically approved the opinion in the Francis case. There can be no question but that the decision in the Brown Cracker Co. case is the law, and we have all the time so held. But it is just as certain that it is wholly inapplicable to the questions in this case. Judge Harper has demonstrated this in the opinions in the Francis and Mode cases, on both reason and authority.

The Brown Cracker Co. case was this: The charter of the City of *Page 593 Dallas provided, "that no ordinance shall be enacted inconsistent either with the laws of the State, or with the provisions of the Act (charter)." The city passed an ordinance, which Judge Brown says, "an argument to demonstrate that the ordinance permits such houses (bawdy) to exist in that district would be inexcusable, the language is too plain to require explanation or application." (104 Tex. 294.) He quoted art. 500 (361), P.C., which makes it a crime for any person anywhere in the State to keep, etc., any such house, and cited article 503 (362a), which expressly authorizes any person, or the State, to enjoin the actual, threatened or contemplated use of any place for any such house, etc., and said, "the antagonism between the ordinance and the law is as emphatic as that between life and death," and held, the State law "must prevail." He further held that under article 1, section 28, of our Constitution as it now is, the Legislature could not even authorize the City of Dallas to suspend said State law.

The recent decision of the Supreme Court in Middleton v. Texas Power Light Co., 185 S.W. Rep., 556, is directly and pointedly the reverse of what that court held in said Mitchell case. I will show this:

On April 16, 1913, page 429, the Legislature enacted a law, whereby it fixed, as the Supreme Court said, "the liability of employers for personal injuries to their employees, or for death resulting from such injuries, and the compensation afforded therefor to employees, or their beneficiaries." The Supreme Court further states: "The operation of the Act, as to employers of labor within the State (not excepted by its terms), is this:

"1. They may, at their election, become subscribers under theAct, or what may be termed consenting members, to its general scheme of liability and compensation, or remain without its pale.

"2. If they become subscribers, and give the required notice to that effect to their employees, they are exempt from all commonlaw, or other statutory liability, for personal injury suffered by such employees in their service, except that for exemplary damages where an employee is killed through an employer's wilful act or omissions or gross negligence, which may be defended against as under existing law.

"3. If they do not become subscribers, they are amenable tosuits for damages recoverable at common law, or by statute, on account of personal injuries suffered by their employees in the course of their employment, and are denied the right of making what constitutes the common law defenses thereto. . . ."

Such employers, under the terms of the Act, who subscribe thereunder, do so only from year to year, and at the end of any year at their option can cease to become members, or in any way be affected by said Act as subscribers would be.

The Act further provides, that certain features of it shall not be in force "until not less than 50 employers have subscribed, who have not less than 2000 employees"; and "if the number of subscribers afterwards *Page 594 falls below 50, or the number of employees falls below 2000," then the Act ceases to be in force; but is again put in force when the said number of subscribers reaches the prescribed number of 50, with 2000 employees. Thus by the option of these employers only, the law will be in effect one year, and not the next, and will be shuttlecocked back and forth — in force and not in force, as they, from year to year, and no one else, determine.

The employees have no option whatever as to putting the law in force or preventing it from being put in force. They are at the mercy of their employers — 50 to 2000 — or rather 1 to 2000, or even 10,000 or more employees, for if 49 employers only subscribed, the Act will not be put in force. If 50 subscribe and then one of them drops out, the law thereby ceases to be in operation. The result is, therefore, that one employer alone, can put the law in force, and withdraw it from being in force, at his sweet will, and all employees, though there be 100,000 of them, are utterly helpless, as far as putting the law in force, or keeping it from being in force. Of course, the employers would not put and keep the said law in force unless it was in their favor, and against their employees.

It is thus seen that if there ever was an option statute of the rankest and most radical type, and one which could be alternately suspended, and then put in force — shuttlecocked back and forth, now suspended and now not, and that, too, by an individual or individuals, without even the people having any say thereabout, — this is one. It is so unmistakably so, it is useless to further recite its provisions.

The Supreme Court held: "The Act, in our opinion, is, in itsseveral provisions, a constitutional law." (Italics mine.)

This decision of the Supreme Court, being its latest expression, and applying what Chief Justice Brown in the cracker company case said of the State law and Dallas ordinance, I say: The antagonism between the holding in the Middleton case with the holding in the Mitchell case, "is as emphatic as that between life and death," and if from any other court in the land, the last deliberate decision, and not the first hasty and immature utterance, — being a civil and not a criminal statute — should, and would, be followed by all other courts, as well as by that court itself.

It is claimed the occupation tax law, which requires persons who run pool tables to pay an occupation tax as a prerequisite to following that occupation, was "suspended" by the people and not by the Legislature, when all the people of McLennan County voted by such an overwhelming majority to have said pool hall law enforced in said county, and is, therefore, contrary to section 28, article 1, of the Constitution. In the Middleton case, in precisely the same line of reasoning, the Supreme Court held theemployers alone, or rather, one of fifty, suspends or alternately puts in force that law, against all employees, with out such employees, or the people, in any way, having anything to say or do, on the subject! In the first place, the Legislature itself, and *Page 595 not the people as contradistinguished therefrom, in the pool hall law, "suspended" said tax law, if it has been "suspended." The Legislature had the unquestioned constitutional power under that section, and every other, to suspend said tax law if it so desired. It has many times and uniformly been expressly held by this court, the Supreme Court and our Courts of Civil Appeals that our cities can prohibit sales of liquor within parts of its limits — being non-prohibition territory therein, and make it a crime to do so, and such law is not unconstitutional, because of article 1, section 28, of our Constitution. So far as said occupation tax law is concerned, as to pool halls, it is, in substance and effect, precisely the same as to liquor dealers in "wet" — or other than prohibition territory. I will cite some of these decisions.

One Garonzik for years had legally engaged in the liquor business at a certain place in the City of Dallas, — not prohibition territory, — and had paid all his occupation taxes to do so for another year. The city, however, passed an ordinance prescribing a small district within its limits only, wherein such business could be carried on, and made it a crime for anyone to sell liquor anywhere in the city outside of said district. Garonzik was convicted for violating said ordinance by selling at his said place, although prior to the ordinance he had paid all licenses to do so for the time, and appealed to this court. He expressly attacked said ordinance on the ground it was void and unconstitutional under article 1, section 28, because it suspended said State tax law. This court in a unanimous opinion, held the city had the right to enact and enforce said ordinance, and it did not violate said constitutional provision. (Garonzik v. State, 50 Tex.Crim. Rep..) Exactly the same was held in Ex parte Levine, 46 Tex.Crim. Rep., and in Ex parte King, 52 Tex.Crim. Rep., and other cases by this court; and by the Supreme Court in Henderson v. Galveston, 102 Texas (163), 171, wherein the Supreme Court said: "All the contentions advanced by appellant under article 1, section 28, of the Constitution are decided correctly in Ex parte King,52 Tex. Crim. 383, and in others therein referred to. Discussion ofthe question is unnecessary." The same thing was held in Cohen v. Rice, 101 S.W. Rep, 1052, by our Court of Civil Appeals at Dallas. It has always been so held by every court of this State until said Mitchell case was hurriedly decided.

Further, as to the constitutionality of said pool hall law. It was passed by a very large majority of both houses of the Legislature, and approved by the Governor. Each legislator, and the Governor, took exactly the same oath to support the Constitution of this State that the Supreme Court justices did, and every other officer does. The legislators by a large majority of each house, and the Governor, and the judges of the lower courts, and this court, under their official oaths, after the most thorough investigation, hold said law is constitutional. Each of these persons, and tribunals, had the unquestioned right, and *Page 596 it was his duty, to pass on and determine the constitutionality of said law.

In Winn et al. v. Dyess, County Attorney et al., 167 S.W. Rep., 294, an election under said pool hall Act had resulted in favor of putting that law in force in Bell County. Winn and others atthat time were engaged in running pool halls, had full equipments therefor and were making money thereby and had paid all taxes and procured licenses for that purpose, which were then in force. And they had filed a suit to contest the validity of such election. They then sought an injunction from the District Court against the county attorney, and other officers, from prosecuting them for running their pool halls pending their election contest suit. The district judge denied them an injunction and they appealed to the Court of Civil Appeals at Austin. That court, through Chief Justice Key, in an able opinion, showing thorough investigation of the question unanimously, correctly held: "If the entire statute is unconstitutional, appellants will have the right to interpose that defense in whatever legal proceedings may be instituted by the county officers to enforce that law in Bell County, and, therefore, appellants will have an adequate remedy at law; and, having such remedy, they are not entitled to relief by injunction or otherwise from a court of equity. City of San Marcos v. International Great Northern Ry. Co., 167 S.W. Rep., 292, recently decided by this court." The Court of Civil Appeals at Dallas (Roper v. Lumpkins, 163 S.W. Rep., 110), had already, in a unanimous opinion, held said pool hall law constitutional and affirmed the district judge in denying an injunction against the officers to prevent an election under said pool hall law. The judges of these two courts are conceded by all to be judges of great learning and ability, and have long been members of the courts they constitute, and their opinions deservedly have great weight.

Thus we see all three of the departments of this State, legislative, executive and judicial, which have the unquestioned authority, jurisdiction and power to pass upon and determine the constitutionality of the pool hall law, expressly hold it constitutional, and two judges of the Supreme Court, against one of its members, hold said law unconstitutional, when that court had no authority, jurisdiction, right or power to determine such question, but by the Constitution are expressly prohibited from doing so. And yet, it seems, there may be some persons who want to make the decision of the two Supreme Court judges an excuse to protect persons in the flagrant violation of said pool hall law!

Our Constitution, prior to 1876, expressly gave the Supreme Court, and judges thereof, original jurisdiction to issue a writ of habeas corpus in both criminal and civil matters. The 1876 Constitution expressly deprived that court and the judges thereof of such jurisdiction in criminal matters, and expressly conferred such jurisdiction exclusively on said Court of (Criminal) Appeals and judges thereof; but never, at any time, conferred on said Court of (Criminal) Appeals such jurisdiction in some exclusivelycivil probate proceedings, nor deprived *Page 597 the Supreme Court of such jurisdiction in such exclusively civil probate matters. Both courts have uniformly, and in many cases, so held. (Ex parte Berry, 34 Tex.Crim. Rep.; Legate v. Legate, 87 Tex. 248, and other cases from both courts.)

By 1891 it was demonstrated to the people that the civil courts could not properly control such courts, and persons connected therewith, unless the Supreme Court should be reinvested with power to issue, and determine questions arising on, writs of habeas corpus such as punishment for contempt, growing out of exclusively civil causes. In other words, that the Supreme Court should have the privilege to first issue said writ and hear and determine all matters arising out of such exclusively civil proceedings, and that the Court of Criminal Appeals in such civil proceedings, should not have exclusive jurisdiction. It is unnecessary to state the reasons for this. They are obvious. Hence, by said 1891 constitutional amendments the people reclothed the Supreme Court and judges thereof with power to issue such writ "as may be prescribed by law." Thereupon, the Legislature gave the Supreme Court, or any justice thereof, power to issue said writ only "where any person is restrained in his liberty by virtue of any order, process or commitment issued by any court or judge, on account of the violation of any order,judgment or decree theretofore made, rendered or entered by such court or judge in any civil cause."

The constitutional, judicial and legislative history of our State, well known to all, in connection with the provisions and amendments of our Constitution itself, caused us to be of opinion that the people and Legislature clearly intended the Supreme Court, in said exclusively civil proceedings, should, in preference to this court, first have the opportunity to determine whether or not it would issue a writ of habeas corpus. Hence, respecting that intention, and in express deference to the Supreme Court, in the companion cases of Ex parte Zucarro,72 Tex. Crim. 214, and Mussett, id., 487, we declined to issue said writ until the Supreme Court should first be given an opportunity to do so. For this court in the Zucarro case I said: "Certainly, the Legislature intended thereby (art. 1529, Revised Civil Statutes) to make certain that the Supreme Court had power and authority to issue the writ of habeas corpus in such cases as therein provided, and we think by the amended Constitution and said Act of the Legislature it was intended that the Supreme Court should first be given an opportunity to take jurisdiction in such matters as are provided for by said statute, in civil matters"; and Judge Harper in the Mussett case said substantially the same thing. He said: "It was contemplated and intended that when an application for a habeas corpus grew out of a civil suit that the Supreme Court should entertain jurisdiction. . . ." And further: "We think as a matter of policy both courts should not exercise it (issue the writ) in this character of cases, and only in extreme cases would we feel called upon to issue the writ in any case, where, by law, the matter should properly go to the Supreme Court for *Page 598 final review in the ordinary course of court procedure." In both of those cases we dismissed or denied the writ without prejudice, so the parties could, as they did, apply to the Supreme Court, which granted the writs, heard the causes and discharged the parties. Such "extreme case" recently arose in Ex parte Duncan, 78 Tex.Crim. Rep., 182 S.W. Rep., 313, as explained therein.

"Much ado" is made in the dissenting opinion herein, because we said in the Zucarro and Mussett cases, that the fine and imprisonment by the lower court, from which they sought relief by habeas corpus, grew out of a civil cause. There can be no doubt that that was true. My dissenting brother then not even intimated a doubt thereof. Surely, no one can doubt it. The "much ado" is now made, however, and a clear misapplication thereof attempted, because the case of Reed v. McNamara, County Attorney, etc., which caused this proceeding, may also be termed a civil case. No one questions that. We specifically so treated it in Judge Harper's opinion herein, and show that whatever final judgment might have been rendered therein could in no event have been appealed to this court. But, when it is stated that both werecivil cases, all further resemblance ceases. "The antagonism between them is as emphatic as that between life and death." In the one, the county attorney of Tarrant County sued Zucarro and Mussett and enjoined them from flagrantly violating a criminal law of this State, on several grounds stated in the Zucarro case, supra, as the statute and law expressly authorized. In the other, Reed sued the county attorney of McLennan County, and procured the shield and protection in advance of his sworn intention to openly and flagrantly violate a crimial law of this State, by having a district judge enjoin and prohibit the county attorney from discharging his sworn constitutional and statutory duty of prosecuting him when he should commit the intended crimes. I think no such legal monstrosity was ever before heard of as was attempted in the Reed case. There is no possible conflict either in principle, or in fact, between the Zucarro and Mussett cases and our holding in this cause.

It is claimed, however, as an excuse or pretense, for Reed having the county attorney so enjoined, that he had vestedproperty rights, and that therefore a judge of the District Court, in a civil suit, an appeal from which could never reach this court, had jurisdiction and power to defy and violate the express decision and solemn judgment of this court in this very matter, take it out of the criminal courts, and himself be shielded and protected in his express avowed intention to violate said criminal law, and prevent even his prosecution in the criminal courts when he carried out his intention and actually, openly and flagrantly committed said crimes. That his action of thus inducing said injunction by the district judge in this instance, if not prevented by this court, was intended to have, and would have had, apparently at least, this effect, no one can question.

That said pool hall law as stated is exclusively a criminal law, no one *Page 599 can deny. The Ex parte Francis case was instituted and prosecuted to final adjudication in this court, for no other reason or purpose whatever than to have determined and adjudicated, legally and constitutionally, by the only court of supreme and final jurisdiction and power which could determine such question, whether or not it was constitutional. Francis was a party on one side, and all other persons in this State were parties on the other side. It was wholly unnecessary and improper to have named all the other persons on the other side from Francis. They were as clearly included in the name of "The State" as if they had been individually named. This would include, of course, Reed himself and his attorneys, and the district judge whom he induced to so enjoin in his behalf. This is so in every case where the State is a party to any case. (Of course, these other persons would not be such parties as to disqualify them as jurors, or other officials in such causes.) This has been expressly held in principle by the Supreme Court in Hovey et al. v. Shepherd, District Judge, et al., 105 Tex. 237, wherein the Supreme Court issued and enforced a writ of prohibition commanding the district judge and parties to that suit, from further interference by injunction or otherwise with its solemn judgment in another cause. That court through Chief Justice Brown saying that by their action in seeking and procuring an injunction, against the enforcement of the Supreme Court judgment in such other cause, thereby "manifesting a disregard of and contempt for law, and the swift compliance of the judge in granting the injunction without a hearing, were sufficient to admonish this court that its authority must be exercised promptly and firmly to maintain the dignity of the State's judiciary. The writ of prohibition is the only effective preventive remedy appropriate to the conditions which confront us, therefore we have authority to use it to guard and enforce our jurisdiction. . . .

"The interveners were not parties to the suit of the City of Sweetwater v. The Kansas City, Mexico Orient Railroad Company at the time the judgment of this court was entered (in that suit), but they were citizens of that municipal corporation, and 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 the private interest of the citizens of the city, although not parties to the (other) suit, all citizens are concludedthereby. Cannon v. Nelson, 83 Iowa 242; Clark v. Wolf, 29 Iowa 197; 2 Black on Judgments, sec. 584; McEntire v. Williams,63 Kan. 275; Sampson v. Comrs., etc., 115 Ill. App. 443."

Two cases could hardly be more alike in principle than that and this case. And to precisely the same effect is the decision of the Supreme Court in Conley v. Anderson, 164 S.W. Rep., 985. The decision of that court in Milam Co., etc., v. Bass et al.,106 Tex. 260, is not only not in conflict with the two cases from that court just cited, but is an express approval of them, as a reading of it will demonstrate.

It is absolutely essential that every appellate court, of supreme and *Page 600 final power and jurisdiction, should and must have the authority and power to enforce its own jurisdiction and judgments — "to guard and enforce its jurisdiction" and "to maintain the dignity of the State's judiciary." Such power and authority would be implied as inherent in every such court. No court would or could be a real court without this. But it is not necessary to resort to this implied inherent power and authority, in this instance, for the people, in our Constitution, expressly conferred on this court such power and authority "to issue such writs as may benecessary to enforce its own jurisdiction." (Sec. 5, art. 5, Constitution.)

Constitutions and statutory "laws conferring jurisdiction on courts must necessarily be in words somewhat general." (Chief Justice Stayton in Pickle v. McCall, 86 Tex. 212, 219.) "This court has plenary power over its judgments during the term, and even after the term . . . in order to support its jurisdiction. . . ." (McCorquodale v. State, 54 Tex.Crim. Rep., and cases therein cited.) "This court has heretofore fully recognized its power to inquire into, and maintain, its jurisdiction, andwill take all proper steps to determine and enforce thatjurisdiction." (Id., p. 363.) "This court will not permit any disobedience of, nor interference with, its judgment . . . by any judge of any court of this State, nor by any other person." (The State, ex rel. Atty Genl. v. Hamblen, Dist. Judge, 74 Tex. Crim. 526, and authorities therein cited.) These principles are so well established by all authorities and reason no discussion of them is necessary.

Now, what have we in this cause? Francis sued out and was granted by this court, a writ of habeas corpus, for no other purpose whatever, than to test, and have judicially determined, the constitutionality, vel non, of said pool hall law, for a violation of which he had been arrested, and was then held by valid proceedings by the State against him. There can be no possible doubt by anyone that this court had the unquestioned right, power, and jurisdiction to grant said writ, hear said cause and determine said question. It did so, after hearing most forcible oral arguments and elaborate briefs by eminent and able attorneys, and after the most exhaustive investigation and thorough consideration, and then and there determined that said law was plainly and clearly constitutional, and so wrote its opinion, and entered its solemn judgment. This opinion and judgment is binding and conclusive on every court and person in this State. No court, and no person, had the right, power or jurisdiction to annul, vacate or set them aside, neither by any direct, nor especially, by any indirect, proceedings. But Mr. Reed, by an indirect proceeding, did attempt to have one of the district judges to do this very thing for him — to annul, vacate and set aside the opinion and judgment of this court, by enjoining the county attorney from even prosecuting him when he should openly and flagrantly violate said law and the opinion and solemn judgment of this court, as he asserted he would do. If this could be thus done, then likewise every other opinion and judgment of this court could be annulled, vacated and *Page 601 set aside by any and every district judge, and perhaps county judge also, and no criminal law of this State could be enforced unless graciously permitted by such inferior judges. No such inferior judge is given directly, or indirectly, any such power, authority or jurisdiction, and any assumption of the same by any such judge is an absolute usurpation, and whatever he does attempting this is a nullity and void. It is inconceivable that under such circumstances, it should be even thought by anyone that this court is utterly powerless to protect and enforce its own jurisdiction and judgment. It is not powerless to do so, but is by the Constitution fully and expressly clothed with power, authority and jurisdiction, by the writ of prohibition, to protect and enforce its jurisdiction and judgment. This is the very object and purpose of the ancient writ of prohibition. When we granted and issued said writ herein we were not invading the jurisdiction of any civil court or cause — we were simply and solely preventing usurpation of power, authority and jurisdiction, and preserving the sanctity of the jurisdiction and judgment of this court.

The agreed facts and record herein conclusively show that Reed had no vested property rights whatever, which he even could pretend justified him to have a district judge and himself defy and violate the law and said opinion and judgment of this court. The facts are:

The pool hall law was enacted March 31, 1913. Prior thereto he had been in the business of running a pool hall in Waco. Our decision and judgment in the said Francis case was rendered January 4, 1914. In April, 1914, as soon as said law was put in force in McLennan County, he voluntarily quit that business. The memo. opinion in the Mitchell case was filed June 23, 1915. Immediately thereafter he set about to fraudulently attempt tothen create some sort of claimed vested property rights. He had none before. Just immediately before he filed his injunction suit, on July 26, 1915, he paid the State and county what would be the tax in territory where not prohibited, to run pool tables, and then rented a house in Waco, so as to illegally place and run his pool tables. No case can be found where any court has ever yet held that a person can fraudulently create pretended vested property rights, after a law has been enacted and in force, and then claim that a court of equity has power or authority by injunction or otherwise to prevent his prosecution for his crime in violation of such law. At most, a court of equity might have power and authority to thus protect him in his vested property rights, acquired before such law was enacted, but not afterwards purposely and fraudulently acquired.

As Mr. Reed had no vested property rights, he was in no attitude to be entitled to an injunction in any contingency. I therefore think it unnecessary to discuss the question on the theory that he had vested property rights. However, even if he had had, the authorities are overwhelming that his remedy was not by injunction, but by defending criminal prosecutions in the criminal courts on the ground of the *Page 602 claimed unconstitutionality of said law. Of course, it would have been wholly unnecessary for him to have had any property rights, in order to have successfully defended, if the law had not been constitutional. This is particularly and especially so under our judicial system, where our criminal and civil jurisdiction and courts are so wholly separated and distinct.

It would be idle, if not silly, for Reed to contend that a court of equity would have jurisdiction to enjoin the county attorney from prosecuting him at all because he should frequently violate said law — that he should be immune from all prosecution to avoid a multiplicity of prosecutions. A very easy and simple method to avoid frequent prosecutions, would be to stop violating the law If there was no violation, there would be no prosecution, frequent or otherwise. The doctrine of multiplicity of prosecutions has no application in this cause.

I will briefly state my individual views of why the writ of habeas corpus is applicable, and was issued in this matter. A decision of the question, however, became immaterial because of the disposition of the case by writ of prohibition. My views are supported by reason and numerous authorities other than our statute, which I will not now cite.

Originally the writ of habeas corpus was issued and used to release a person from actual physical confinement which prevented his free locomotion at his will. But our statute expressly enlarged the use and purpose of the writ. It enacts:

"A writ of habeas corpus is an order issued by a court or judge of competent jurisdiction, directed to anyone having a person in his custody, or under his restraint, commanding him to produce such person, at a time and place named in the writ, and show why he is held in custody, or under restraint." (Art. 161, C.C.P.)

"By `restraint' is meant the kind of control which one person exercises over another, not to confine him within certain limits,but to subject him to the general authority and power of theperson claiming such right." (Art. 182.)

"Every provision relating to the writ of habeas corpus shall bemost favorably construed in order to give effect to the remedy,and protect the rights of the person seeking relief under it." (Art. 164.)

The district judge, in this instance, did not have Mr. McNamara imprisoned in jail, or elsewhere, nor did he have him chained, or tied, so as to prevent his physical locomotion at will, but by his injunction, without a shadow of doubt, he had him restrained, and under his control, and subject to his, not only general, butspecial, authority and power, to absolutely prevent him from doing his sworn official duty. Mr. McNamara had fine and imprisonment both staring him in the face, and doubtless would have been inflicted with both, if he had made any move to have discharged his sworn duty. How he could have been more grievouslyrestrained and subject to the authority and power of the district judge, I fail to see. As quoted, the statute expressly distinguishes between being physically "in custody," and otherwise "under *Page 603 restraint" not confined, and one entitled him to the writ as much as the other. The statute itself makes the two so distinct and clear it is wholly useless to further now discuss or illustrate them.

It is my opinion that this court also had the right and power, and if necessary it was its duty, to have issued, and compelled by, mandamus the district judge in this matter to vacate said injunction granted by him, and permit the county attorney to discharge his constitutional and statutory duty of prosecuting Reed for violating said pool hall law. This to guard and enforce the jurisdiction, and to maintain and enforce the judgment, of this court, as expressly authorized by our Constitution. (Art. 5, sec. 5.) In Terrell v. Greene, District Judge et al., 88 Tex. 539 [88 Tex. 539], that district judge, by his order, refused to permit the county attorney to take charge of and prosecute a suit in behalf of Tarrant County, as he had the authority, and was his duty, to do. The Supreme Court in an original proceeding by peremptory mandamus commanded said district judge to permit said county attorney to discharge his said duty. However, this court accomplished the same result herein by the writ of prohibition, and mandamus was, therefore, unnecessary. Hence, I will not discuss the right of this court to issue and enforce the writ of mandamus herein.

I fully concur in Judge Harper's opinion, and the judgment herein entered.