On Motion for Rehearing.
The appellant has filed an exhaustive motion for rehearing. This motion urgently presses upon us all the contentions of appellant presented in its brief and argument upon the original consideration of the case. We do not deem it necessary to add anything to what we have already said in disposing of any of the grounds of the appeal, except the contention which is rested upon the equitable maxim, “He who comes into a court of equity must come with clean hands,” and that, since appellánt invoked this maxim against appel-lees, the question of their guilt or innocence should have been considered by the trial court under the evidence tendered by appellant and excluded, the purpose of which evidence was to show that appellees had continuously and persistently violated the criminal ordinance of the city regulating the sale and distribution of milk, thus establishing their lack of good conscience in relation to the subject-matter of the suit and thereby precluding them from any right to receive relief in a court of equity.
That portion of our opinion in. which we dispose of this contention on the part of appellant and sustain the action of the trial court is elaborately criticized in the motion for rehearing. The following is the language by the use of which we dispose of appellant’s propositions bearing upon this feature of the-case:
“Our view is adverse to appellant’s position, that appellees by persistently violating cripi-*586inal ordinances of the city had put themselves in a position where they could not invoke the aid of a court of equity. The equity maxim, ‘He who comes into equity must come with clean hands,’ is called to the aid of appellants by their counsel, who insist that this maxim applies because appellees’ unlawful conduct caused the actions about which they themselves complain. The ordinance which. the city insists was flagrantly violated by appellees is a criminal one. The presumption of law must prevail in all court proceedings that those charged with infraction of criminal laws are innocent until they are adjudged guilty in a proceeding lawfully instituted and prosecuted to final judgment, especially in the absence of admission. To sustain the position of the appellant would be to ignore and override this presumption. As we see it, the above-quoted maxim of equity can have no application. On the contrary, that other equity maxim, ‘Equity follows the law,’ could be invoked, it occurs to us, with a nearer approach to propriety. Certainly equity should never undertake to nullify constitutional and valid statutory requirements.”
Appellant’s counsel, with the appearance of utmost sincerity, contend that the necessary effect of the language thus used is to declare that proof of facts showing a violation of any criminal ordinance or criminal statute in any civil action could not he made until after a conviction in a criminal court for the violation of law involved in such facts.
[7] Without pausing to discuss whether or not tiffs meaning could be derived, within the limits'of'reason, from what we have said, we nevertheless think that it must be apparent that our purpose is not to express any such view. The language was intended, of course, to apply to the situation presented in this ease and to no other. And what is that situation? It is this: The city of Dallas has enacted certain criminal ordinances and prescribed certain procedure by which to secure to its inhabitants protection of health against the sale and distribution of unwholesome milk and milk products. Instead of pursuing the course laid out and prescribed in the ordinance, appellant, through Adams, in the most arbitrary manner adjudges appellees guilty of the violation of such criminal ordinance and undertakes to administer peremptory punishment not in accordance with the provisions of the ordinance or with those of any prescribed authority, but in utter disregard of the elementary tenets of criminal procedure. Without a hearing being given appellees so far as the record shows, and even without any previous notice to them, the city chemist and city sanitarian of the city of Dallas, in dictatorial and. militaristic fashion, adjudges appellees guilty and imposes a penalty upon them. The penalty thus imposed is not one authorized by any law, even if guilt had been lawfully established. It is a penalty sanctioned solely by the caprice of this particular official. The effect of the order thus issued, in a practical sense, is entirely to stop the conduct of appellees’ business for a period of two weeks, and, to that extent, deprive them of their property. If it cannot be said that the city of Dallas authorized all these acts and this oppressive and unlawful conduct, nevertheless it occurs to us that the conduct of the city constitutes a clear ratification of what was done by this official.
Having thus departed from the course it had prescribed to be pursued in compelling milk producers and dealers to dispense healthful products, and having resorted to a course of the most arbitrary character and a course which necessarily operates in effect to impair fundamental rights of citizens the city of Dallas now stands before a court of equity, and, in effect, says that, notwithstanding its ordinances provide for prosecution before a court where the right of trial by jury is available to those charged with infraction of the very ordinance it contends appellees violated, and thereby caused the arbitrary and unlawful conduct of appellant and its officers, and notwithstanding the further fact that one of its officials, clothed with no judicial authority whatsoever, has arbitrarily adjudged appellees guilty of violation of the ordinance, by resort to an edictal order it has undertaken to suspend the operation of appellees’ business entirely for a period of two weeks, or until such time as appellees shall seek out this functionary in his quarters, and there make such arrangements as he may dictate as proper arrangements for re-engaging in their business. The edict thus issued by' this official is not a notice to appellees that they will be prosecuted if they sell milk in violation of the ordinance. Most indulgently considered, it is rather a notice to the effect that the operation of appellees’ business shall not be made to depend upon their actual compliance with law, but rather upon their ability to satisfy this official that during the future they will fully comply with the requirements of the ordinance. The “arrangements” required to be made are not as to what has already occurred. The notice has the necessary effect of placing upon appellees the requirement to go through whatever process may be demanded by Adams to satisfy his department with reference to appellees’ future conduct as a basis of right to resume their business during any of this period. The penalty imposed deprives the appellees of the pursuit of their business for a period of two weeks, whether they might desire to offer milk for sale in compliance with the ordinance or not. There is no condition prescribed to the effect that, if they conform to the requirements of law, they may continue their business. The arbitrary fiat is that for a period of two weeks they are “cut off,” regardless of whether their milk may be offered for sale and distributed in compliance with or in *587violation of the ordinance during that period; in other words, this is the punishment imposed by Adams for conduct which he has determined to be in violation of law.
Such we conceive to be the acts and conduct which appellant has sought to defend and uphold. Appellant comes into court in response to the application for an injunction to restrain the further pursuit of such course and says, in effect, that, although punishment has thus been imposed upon appellees in an unauthorized manner, yet, appellant, after having circumvented appellees’ right of trial as prescribed by law and after having imposed upon them a penalty depriving them of their property without due course of the law of the land, will now, in a court of-equity, make proof of facts to establish the criminal guilt of appellees, and thereby put itself in a position to proceed to a final consummation of the course indicated and thus far taken by Adams.
We adhere to the view that the maxim of equity in which appellant seeks protection cannot be applied. We do not understand that this maxim must in all cases have the force of a rigid and inflexible rule, but that it may be relaxed when, in the view of a court of equity, public policy may require it to yield. The maxim, itself, is founded upon public policy, and its application must be controlled in consideration of whether or not the public policy of the state will be best conserved by applying or refusing to apply it in a given ease. We think it can be safely said that public policy must always be given first consideration in determining whether or not a temporary injunction should be granted or refused in cases of this nature.
Moreover, it seems clear to us that to permit the city of Dallas to enforce its criminal ordinances by such methods as those which appear to have been resorted to in this case would be to override the constitutional provision for the right of trial by jury and the constitutional guaranty against the taking of property otherwise than by due course of law. We regard the acts complained about as indefensible, and we think that to sanction them in any court of this state would be a subversive and dangerous thing, which this court, at least, will not do in the absence of controlling authority requiring it.
Certain cases from other jurisdictions are cited by appellant to support its contention that appellees can have no relief in a court of equity under the above-quoted equity-maxim. The case of Modern Horse Shoe Club v. Stewart et al., 242 Mo. 421, 146 S. W. 1157, and the case of Weiss v. Herlihy, 23 App. Div. 608, 49 N. Y. Supp. 81, are cited. Those are cases in which men engaged in conducting disorderly houses in violation of law so as to constitute public nuisances sought to enjoin arrests by officers who were seeking to break up these resorts. We do not believe these cases are analogous to the case before us, or that they ought to be considered as authority for our guidance in this case. The nature of the business interfered with in those cases is wholly distinct from the nature of the business pursued by the appellees in this case. The operations interfered with in the instance of each of those cases were in their nature criminal and permeated with turpitude. In the Missouri case supra the police were arresting persons in a club. The proprietor sought an injunction in his own behalf. As said by the court in the course of the opinion:
“It was not a proceeding instituted in behalf of individual members of the club who claimed to have suffered from illegal arrests made by the police.”
The officials of St. Louis answered that, whether or not the arrests were made unlawfully, yet the place was used as a resort for prostitutes and as a harbor for criminals. The proof established these facts. In the case of Weiss v. Herlihy, supra, the injunction was sought to prevent interference with the conduct of a disorderly house in a city. Such things are per se evil. When their nature is inquired into their uncleanliness conclusively appears. On the other hand, the business of selling and dispensing milk is not in its nature bad; on the contrary, it is altogether a wholesome and indeed a necessary business. Complaint against it in any particular instance can arise only when the products sold are so infected with impurities as to endanger the health of users. But. regardless of whatever analogy to the case before us may be presented in the above-named cases, we will, nevertheless, refuse to be bound by them as conclusive upon us, and will abide by our decision, which .we believe to be a just and sound one.
The motion for rehearing is overruled.