This case is in most respects identical with the case of Ex parte Roper, the motion for rehearing in which has been this day overruled. It differs, however, from the Roper case in the fact that here the injunction ran directly against Looper in person; and again it differs from the Roper case in that the sales shown in evidence were made by Looper in person. There is a question, however, arising in this case that is not raised in the other proceedings. That question is this: It appears from the record in the case before us that Looper was fined by the court in vacation, and it is urged that this act of the court was utterly and absolutely void, and that relator is, therefore, entitled to his discharge. Such was the holding of this court in the case of Ex parte Ellis, 37 Tex.Crim. Rep., where Judge Henderson, speaking for the court, held in substance that an order of the district judge imposing a fine for violation of an injunction was void, and on habeas corpus he was entitled to his discharge. That this decision is manifestly incorrect and erroneous is demonstrably clear. None of the authorities cited in that case are in point except the Oregon cases. An inspection of those authorities will demonstrate that the decisions in Oregon so holding in effect were made with reference to and based on the peculiar language of the Oregon statute, which seems to deny the court the right to impose any punishment for contempt except during term time. In this State our statute provides directly to the contrary. This statute was not called to the attention of the court, and was evidently overlooked. It is as follows:
Article 3011, Revised Statutes of Texas: "Disobedience of an injunction may be punished by the court or judge, in term time or in vacation, as a contempt."
Again, this seems to be the universal rule, unless such punishment is inhibited in vacation by statute. The law is thus well stated in that invaluable work, 9 Cyclopedia of Law and Procedure, page 31: "Subject to statutory restrictions, a judge or court may punish for contempt for violation of court orders at chambers or in vacation." In support of this rule the learned author cites the following authorities: Cobb v. Black,34 Ga. 162; State v. Archer, 48 Iowa 310; State v. Myers, 44 Iowa 580; State v. Loud, 24 Montana, 428, 62 P. 497; Nebraska Children's Home Society v. State, 57 Neb., 765, 78 N.W. 267; In re Sloan, 5 N.M., 590, 25 P. 930; Lathrop v. Clapp, 40 N.Y. 328; Wicker v. Dreser, 4 Abb. Pr., 93, 13 Ho. Pr., 331; Vose v. Reed, 28 Fed. Cases, 17011; 1 Woods, 647.
In view of the rule thus obtaining universally, and proceeding with reference to our statute which covers the case in express terms, and from high considerations of public policy, we think that the case of Ex parte Ellis, supra, is so manifestly erroneous, and so utterly destructive of the vast benefits of the injunction process that it ought *Page 133 not to stand, and it is hereby in terms overruled. It is a fact of which we must take judicial knowledge as members of this court aud of which we are conscious that in probably half the area of Texas the District Courts convene only twice a year, and that in very many of the counties of this State they remain in session for very inconsiderable periods of time ranging from one to four or five weeks. Injunctions as we know are sued out and should be granted only where some irreparable injury is threatened for which the parties have no adequate remedy at law. A frequent use of injunction is to prevent waste, or as is somewhat analogous to this case, to prevent the creation of a nuisance, destruction of property, or injury to health, or both. If the construction and rule laid down in the case of Ex parte Ellis is to be maintained, then it must result and would result that if an injunction had been obtained to prevent the construction of an open sewer in front of one's private residence, the minute court adjourned the party enjoined might by himself and his servants begin the construction of the sewer, the effect of which would be, when summer with its heat and its sun-blistering rays fell upon the foul sewage, spreading pestilence and death to the homesteader across the street, that the law would be powerless for five months in the year to afford relief. If it were an injunction against waste, or the cutting down of ornamental trees, in a matter involving the destruction of the subject matter of litigation, one's adversary who had been enjoined might absolutely destroy it without hindrance and the arm of the law be powerless to afford any relief. Against this doctrine we protest. It is opposed, as we have seen, to the general rule everywhere. It is in the face of our statute which directly gives authority to the judge in vacation to punish for such conduct, and it is directly destructive of all private rights, and would constitute such a ruinous public policy as to be destructive of civil rights and one against which reason revolts. Of course, we are proceeding on the assumption that in the first place the injunction was properly granted; that is assumed, and must be assumed in this case. When so granted, there should be no closed season protecting the man who would defy the just authority of the courts.
Finding no merit in the motion for rehearing, it is hereby overruled.
Overruled.
Davidson, Presiding Judge, dissents.