(dissenting).
The members of this court have labored long and earnestly in an effort to arrive at a'proper disposition of this appeal. We have studied the record and the applicable laws and find we are unable to agree. From numerous consultations with my-colleagues I believe I fully understand their .concepts of the law to be applied. Notwithstanding my very high regard for their respective judgments in such matters, I feel impelled to express my dissent from the conclusions reached in the majority opinion.
The nature and result of the case are fairly expressed in that opinion; but I shall mention some phases of the case not embraced therein. In expressing my own opinion in the matter I shall not chase phantoms nor theorize upon fancied remote possibilities in an effort to abrogate what I pérceive to be a plain statutory provision. Courts should have no concern as to the expediency of a legislative enactment.
Articles 4664-4666, R.C.S. 1925, were passed in 1923, and 4664 specifically sets out several situations, either of which when violated shall constitute a common nuisance. Two of these articles are quoted in the majority opinion. In this case we^ are not concerned with that part of Article 4664 which condemns a place where persons commonly resort to drink intoxicating liquor where intoxicating liquor is kept, bartered or sold, or where such liquors are furnished to minors, or when persons resort there for purposes of gambling or prostitution. The only infraction of Article 4664 relied -upon by appellee (to quote from the petition) is: “Said place is a public place commonly known as a dance hall and/or roadhouse, to which the public commonly congregate for pleasure, and it is *387a place to which persons resort in assembly of two or more persons to the room, for the purpose of drinking intoxicating liquors, and it is a place to which people resort for the use of loud, profane and obscene language and for dancing and that said place, as maintained, is a common nuisance as defined and declared by Article 4664, in R.C.S. 1925 of the State of Texas.”
No special exceptions to the petition were presented by appellant (defendant). He defended upon the general denial and a special plea that the “Statute (4664) does not authorize the action as stated by said original petition.”
Appellant seeks a reversal of the judgment entered and a dissolution of the injunction upon one point of error, the substance of which is: “The evidence was wholly insufficient to show any willful violation of the provisions of Article 4664, or to legally authorize the granting of such injunction.”
The record before us is replete with evidence given by appellant himself to support the judgment, if Article 4664 has not been repealed by the legislature, a matter to which I shall later devote some attention in this discussion. Appellant frankly admitted, while testifying, substantially, that: He owned the tract of land described in the petition; it contained a large building in which he formerly conducted a feed business; he had fixed up the building suitable for a dance hall, installed plenty of lights, a music machine, a place for an orchestra, procured and furnished, each Saturday night, musicians and installed a sound amplifying system. He called the place “Parker’s Barn Dance” and began operating the last time in June, 1946; he had public dances every Saturday night and had from 200 to 400 persons at his place each time; he offered for sale no drinks except soft drinks; he allowed no drunkenness about his place; he had seen a few “drunks” at his place but not many; he used all of his land except that occupied by the building as a parking lot for his patrons; on Sunday mornings after a Saturday night dance he had gone onto his parking lot and picked up whiskey and beer bottles and put them in a sack or tub; he kept two regular peace officers on his premises each Saturday night at his own expense to keep order and to prevent disturbances. The two peace officers testified, at appellant’s instance, that they were on duty each Saturday night; they had seen a few “drunks” on the premises since the place was opened; they had arrested perhaps a half dozen and had permitted friends of others to take them home when they were too drunk to drive. Some of the persons who lived in the area testified to seeing drinking from bottles on the lot and saw appellant picking up the bottles on Sundays; they also testified about the noise and confusion at the place and said no one could sleep in that vicinity before midnight when dances were going on; they heard cursing and obscene language which they did not want to repeat to the court nor did they want their families to hear it.
While there is no provision in the statute relied upon by appellee which attaches any importance to -the noises, profanity and vulgarity testified about, yet I think no violence is done the statute when evidence is heard, without objection, concerning these things obviously brought about by those who commonly resort to the offending place for the purpose of drinking liquor. It occurs to me that the legislature had in mind when it passed the statute that these things would inevitably follow group drinking of liquor, and therefore hit first at the root and base of it all.
Referable to appellant’s contention that the evidence was not sufficient to show that he “willfully” maintained his place of business in a way that it would become, under the law, a common nuisance, I note by Article 4665, R.C.S. (not deemed by the the majority opinion necessary to quote), that it is there provided, among other things: “Proof that any of said prohibi-bited acts are frequently committed in any of said places (mentioned in Article 4664) shall be prima facie evidence that the proprietor knowingly permitted the same, * * * ” Thus it will be seen that the evidence of appellant, and that offered by him through his privately employed peace of*388ficers, condemns him and refutes his only assigned point of error. It also occurs to me that when appellant deemed it necessary to employ two peace officers to keep the peace and prevent disturbances at his place of business is quite significant that he had full knowledge that the manner in which he was conducting his business was calculated to make their presence imperative. ⅛
All members of the court agree that a dance hall is not a nuisance per se; but that like many other legitimate businesses it becomes such, if at all, by reason of the manner in which it is conducted. The legislature has declared that any place anywhere becomes a public nuisance if as conducted it falls within the provisions of Article 4664. The legal inference is that it becomes inimical to society in producing a breeding place for crime and transgressions of the standards of health and good morals.
As I view this case, there are only two possible contentions standing between an affirmance of the judgment of the trial court and a reversal and rendition as has been ordered by the majority. They, are, First: Did the passage of the Texas Liquor Control Act in 1935 impliedly repeal Article 4664 in its entirety; and Second: Did the State’s failure to allege and prove whether or not the area in which appellant’s place of business is situated was either a wet or dry territory, as determined by a vote of the people, defeat appellee’s right of recovery.
It is my opinion that the legislature did not intend to repeal Article 4664 by the passage of the Texas Liquor Control Act, or at least that portion of the article under which this suit was prosecuted. As I view the situation it is immaterial whether the Liquor Control Act can be construed to have repealed by implication other parts of Article 4664 which do not affect this suit. It is the recognized rule of law that, generally, repeals by implications are not favored; yet I am quite aware that there are well recognized exceptions to that general rule; they are observed in the majority opinion. The .Liquor Control Act specifically repealed Chapter 7 of Title 11, Penal Code of 1925 and all amendments thereto, they were Articles 666 to 693,both inclusive, of the Penal Code. The Act also repealed all of Title 80, R.C.S. of 1925, this embraced Articles 5075 to and including 5114, R.C.S., pertaining to intoxicating liquors. See Art. 666 — 49, Vernon’s Ann. Penal Code. There is no other reference made in the Texas Liquor Control Act indicating an intention by the legislature to repeal other existing statutes. Neither of the former statutes which were repealed embrace Art. 4664, and if it can be said to have been repealed by implication, there would have to be something contained in the Liquor Control Act which, as held by the majority, is inconsistent with or repugnant to the pre-existing- law. I have diligently scrutinized the Liquor Control Act with this in view. I find nothing there inconsistent with nor repugnant to that part of Art. 4664 under which this suit was prosecuted. I cannot believe that because Art. 4664 was enacted at a time when National and State prohibition was in effect and by virtue of the Liquor Control Act the policy of State Government in' the respects here involved has been so changed that it could be said that the legislature intended to repeal Art. 4664, which in no way affects the State’s control of the manufacture, sale and possession of intoxicating liquor. It would in my opinion' require a stretch of the imagination to assume that the State in its effort to control such sales would in the same breath repeal Art. 4664 and permit any person, situated as was appellant, to maintain a harbor of safety for group drinking, in short a “City of Refuge” (Pentateuch, Deut. 4:41-43) dominated by the appellant.
I believe that Art. 4664 was enacted to cover a field upon which the legislature had not previously spoken and one upon which it has not spoken since 1923. When the law was passed it was for the obvious purpose of enabling the State’s agencies to prevent any person from maintaining any kind of a place where people could habitually resort in groups for the purpose of drinking intoxicating liquor. At that time distilled liquor could be legally obtained. Likewise, under the Liquor Control Act it can be legally -procured, but *389the seller must not permit it to be consumed on the premises — not a penalty against the buyer. In so far as I am able to ascertain, the legislature has made no attempt to penalize any person who maintains a place where two or'more persons commonly resort for the purpose of drinking intoxicating liquor other than by the provisions of Article 4664 and Article 666 — 29, Vernon’s Ann.Penal Code. The last cited article is similar in some respects to Article 4664 but covers a situation not embraced within 4664. The very fact that Art. 666 — 29, P.C., was passed in 1935 as a part of the Texas Liquor Control, Act leads me to believe that the legislature had in mind the provisions of Art. 4664 now under consideration and deemed it unnecessary to further legislate thereon'. The law had been previously construed by the courts and the legislature was apparently satisfied with it.
The majority opinion points out in one place the absence of pleading and proof as to whether or not the sale of intoxicating liquor was prohibited in the area of appellant’s place of business and further calls attention to the absence of allegations and proof that any violation of the penal laws relating to intoxicating liquors had been committed, then poses the question: “Under such circumstances was the trial court authorized to issue the injunction described above? We think 'he was not.” In the second paragraph following the quotation given, the opinion holds that when Art. 4664 was enacted declaring a place to be a common nuisance where two or more persons gather for the purpose of drinking intoxicating liquor, it was not the legislative intent to limit the situation to one where the drinking itself constituted a violation of the penal laws. With this I readily agree, and it is my further belief that the legislature has not enacted any subsequent law which is inconsistent with or repugnant to that construction. It may be doubted that the same could be said of those provisions of Art. 4664 relating to places where intoxicating liquors were being manufactured, sold, etc., or places resorted to for gambling or prostitution, but as to these conditions we have no concern since the instant case is not dependent upon'either of the last mentioned conditions.
For almost a century of our Statehood the legislature has toiled with the liquor traffic. During this time the pendulum of public sentiment and governmental policy has swung back and forth with clock-lilce precision and certainty. Former laws on' the subject have come into disrepute for various reasons rendering them ineffective. In an effort to protect personal rights and liberties the courts may have cut too deeply into the heart of the laws, and disfavor followed. I- do not believe any evidence can be found in the Liquor Control Act that the legislature intended thereby to enlarge or encourage in any way, the people to drink liquor more freely and often, or to gather in groups of two or more to the room for that purpose, and thus increase the sales of those whom the State has licensed to sell and'in the end increase the number who desire to sell and to thereby enhance the revenue to the State. I am unwilling to impute to the legislature such a motive.
The very strict supervision of the liquor business evinced by the Liquor Control Act is persuasive that the State in fact discourages in every legitimate way the promiscuous drinking of intoxicants, more especially when people gather in groups for that purpose. What could be more conducive to consuming distilled liquor than to permit it in a place of business where men gather to buy from those who are authorized to sell? Yet consuming the liquor on the.place where sold is strictly forbidden; in this connection I am speaking especially of distilled liquor.
Again, I observe that Art. 4664 is not a penalty imposed upon those who acquire their liquor legally, nor as to where they drink it, but the penalty is upon those who maintain the place as a sanctuary and haven to which they resort in groups and drink to the terror of the general public.
There is a distinction made in our laws between distilled and brewed intoxicants as to when and where they may.be consumed. There is much undenied - evidence in this case that many people resorted to appellant’s place to drink whiskey which is de*390fined by the law to be distilled liquor. I can see no difference in the enforcement of this law provided under Art. 4664 against those who maintain dining rooms of the most gigantic hotels or the swankiest private exclusive clubs and lowest “honky-tonk” (whatever that is). They all stand equal in the eyes of the law.
In one part of the majority opinion it is said: “That there has been an implied repeal of at least a part of Article 4664 cannot be denied.” They then demonstrate that so much of the article as declares a place a common nuisance if intoxicating liquors are kept, possessed, etc. is inconsistent with the present laws in' so far as they permit the manufacture, keeping and possession of liquors. These detailed reasons, which I have abbreviated, are followed in the next paragraph with this language: “The same holding is applicable, we believe, to the question of implied repeal of the portion of Article 4664 which declares any of the places therein named to be a common nuisance if two or more persons resort there for the purpose of drinking intoxicating liquor. There is no longer ground for declaring the place a common nuisance at the suit of the State unless the drinking is in violation of some law or regulation, other than the provisions of Article 4664, relating thereto.” From other parts of the majority opinion, I believe I can safely say that the opinion does not purport, even by “implication,” to hold that the applicable part of Art. 4664 was impliedly repealed. It is my definite belief that no repeal of the applicable part of Art. 4664 was intended by the passage of the Liquor Control Act. In this I am supported by Parker v. State, Tex.Civ.App., 161 S.W.2d 319, writ refused (the majority conditionally refused to follow this case); Jeter v. State, Tex. Civ.App., 184 S.W.2d 716.
Trent v. Kennedy, Tex.Civ.App., 109 S.W.2d 327, holds that the Liquor Control Act repealed, by implication, Art. 4664, yet it will be observed that the cited case was not one by the State. Parker v. State, Tex.Civ.App., 161 S.W.2d 319, writ refused, declined to follow the Trent-Kennedy holding and the Supreme Court gave its sanction to the repudiation by refusing the application for writ. Jeter v. State, Tex.Civ.App., 184 S.W.2d 716, held as did the court in the Parker-State case. The majority opinion in this case reviews the above cited cases and then says that the Liquor Control Act impliedly repeals “only such portions of Articles 4664-4665 as are inconsistent with or repugnant to the provisions of the Liquor Control Act.” I construe this to mean that if the portion of Art. 4664 under which this suit is prosecuted is not inconsistent with and repugnant to the provisions of the Liquor Control Act, then it was not repealed. I have already pointed out that I can find no provision in the Liquor Control Act which attempts to legislate on the particular matters covered by that part of Art. 4664 applicable to the case before us. The majority opinion cites no such conflicting provisions, there must be none. If it be conceded that even a part (not applicable to this case) of Art. 4664 was impliedly repealed and that part applicable was not repealed, let us see if the applicable part will support this judgment.
In an approved opinion by the Commission of Appeals, St. Louis, B. & M. Ry. Co. v. Marcofich, 221 S.W. 582, where it was contended that the passage of a subsequent law apparently covering the same subject matter repealed previous laws on the same subject, it was held, among other things, that repeals by implication are not favored; that knowledge of existing laws is attributable to the legislature when subsequent laws are enacted on the same subject matter; when subsequent enactments are passed and are silent as to repeal of prior laws, the presumption prevails that the legislature intended that the older law should continue effective.
In Ex parte Townsend, 64 Tex.Cr.R. 350, 144 S.W. 628, Ann.Cas.1914C, 814, our Court of Criminal Appeals held that where one statute deals with a subject comprehensively and another statute deals with the same subject in a more definite way, the two should be read together if possible with a view to giving effect to both, but, under any necessary conflict, the special act must prevail. A similar rule was announced by the Supreme Court in Conley v. Daughters of the Republic, 106 Tex. 80, *391156 S.W. 197, 202, 157 S.W. 937. As I interpret these cases they mean that even though the passage of the Liquor Control Act impliedly repealed those parts of Art. 4664 pertaining to places where intoxicating liquors were manufactured, sold, etc. and places where people commonly resort for purposes of gambling or prostitution (neither of which provision is involved in this case and need not he determined by us) and is silent, as in this case, as to that part referable to groups assembling at any place for the purpose of drinking intoxicating liquors, such latter provision will not be held to have been impliedly repealed.
I now come to the question of whether or not it was material to the appellee’s right to injunctive relief without allegation or proof of whether the area where appellant’s property was situated was “wet” or “dry” territory. The majority opinion makes a point of this fact in reaching the conclusions expressed. The appellant also argued it in support of his point of assigned error. It must have been considered controlling by the majority as well as appellant in the belief that under one or the other of such conditions appellant’s acts would have been legal. Talcing either horn of the dilemma let us see; if it had been made to appear that the area was dry, could it be said that for that reason appellant could maintain a place where persons could assemble, two or more to the room and drink intoxicating liquor? To ask the question is to answer it. While upon the other hand, let us assume that it was shown to have been a wet area. There is no provision in the Liquor Control Act which could be distorted into meaning that any kind of a license or permit to appellant under the law would authorize him to maintain such a place where persons could resort to drink distilled liquors, as distinguished from malt or brewed beer. This identical question was before the court in Hetrick v. State, Tex.Civ.App., 87 S.W.2d 887, and for reasons there stated, in addition to those mentioned by me, it was held that it was immaterial whether the area was wet or dry. (That case was decided November 4, 1935.) The majority in this case expressly refused to follow that holding in the respect mentioned. It is quite apparent that I differ with the majority in this respect.
The majority opinion lays stress upon language used in some of the cited cases to the effect that to maintain an action for injunction against an alleged common nuisance under Art. 4664 it must be made to appear that some act of the penal laws was being violated. The facts in the cases relied upon appear to have been predicated upon parts of Art. 4664 not involved in this case, such as keeping, selling and manufacturing intoxicating liquors, gambling, etc. It is easy to perceive why under those conditions it would be necessary to allege and prove that those things were being done before a cause of action could be said to exist. But when a case is predicated upon the situation as this one, it would appear that no violation of a criminal statute by the appellant is necessary before he could infringe the inhibited acts with which he is charged.
It is my conclusion: (1) That part of Art. 4664, R.C.S., applicable to this case was not repealed by implication in the passage of the Liquor Control Act; (2) that it was immaterial in this case whether appellant’s property was located in either dry or wet area; (3) that under the applicable statutory laws in this case it was not essential that there be either allegation or proof that a violation of the Penal Code existed as prerequisite to the State’s right to injunctive relief; and (4) that the evidence is amply sufficient to support the trial court’s judgment.
From these things I believe the judgment should be affirmed instead of reversed and the injunction dissolved as ordered by the majority opinion.