J. W. Baker v. Sadie Coman et al., 109 Tex. 85

Mr. Chief Justice PHILLIPS delivered the opinion of-the court. The suit was an injunction proceeding by J. W. Baker as a private citizen for the suppression of bawdy houses within what is known as the “Reservation” in the City of Houston,—a district segregated by ordinance of the city as authorized by its special charter. Upon trial, an injunction was granted against the defendants joined as owners, lessees and tenants of such houses, but was denied as to the mayor and aldermen of the city, against whom it was sought to enjoin the enforcement of the ordinance. The appeal was by the defendants enjoined.

The honorable Court of Civil Appeals reversed the judgment and rendered the cause, dissolving the injunction. It determined the case before this court’s decision of Spence v. Fenchler, 107 Texas, 443. Under articles 4689 and 4690 of the Eevised Statutes (the Act of 1907) any private citizen of the State is entitled at his suit to have a bawdy house abated by means of injunction without the necessity of showing personal injury. In Spence v. Fenchler we declared to be unconstitutional the proviso in

article 4689, which in its effect gave to towns and cities acting under special charters the liberty of permitting by ordinance the operation of such houses if confined within a designated district, for the reason that it was an attempt to confer upon such municipalities the authority to suspend the criminal law of the State which denounces those establishments. Brown Cracker & Candy Co. v. City of Dallas, 104 Texas, 290. It follows that the ordinance of the city purporting to create the segregated district was void. It was also determined in Spence v. Fenchler that the invalidity of the proviso in

article 4689 did not affect the remaining portion of that article, or

article 4690; and that the two articles should be enforced as though the proviso were no part of them. While urged here to review that decision, we have no disposition to alter it, and it is reaffirmed. Baker’s right to the injunction is solely in virtue of articles 4689 and 4690. The jury found that he had suffered no damage by reason of the establishment and maintenance of. the reservation. This precluded the issuance of an injunction in his favor under the general law as expressed in

article 4643, or the ordinary, principles of equity. But under articles 4689 and 4690 he was clearly entitled to the writ unless for some sufficient reason their benefit is to be denied him. It is contended that since his right depends upon .the statute and does not exist unless the proviso therein contained is invalid, the statute can not avail him because he should not he heard to question its validity. It is sought, in other words, to have applied to Baker’s suit the general rule which refuses to permit a party to question the validity of a law that is the source of the right he claims.

If Baker’s right to the injunction depended upon the proviso, or if its invalidity rendered the entire statute void, the rule would have application. But such is not the case. It is not the proviso which entitles the private citizen to an injunction against these houses without a showing of personal injury. It is not the source of the right which Baker here claims. That right is given by the general part of the statute, which, as we have, held, has full force regardless of the invalidity of the proviso.

The proviso was only an attempted limitation upon the exercise of a right elsewhere in the statute generally bestowed. Under the holding in Spence v. Fenchler, it was a separable part of the law. With this true, anyone within the terms of the valid part of the law is entitled to invoke it unaffected by the invalid part. The judgment of the Court of Civil Appeals is reversed and that of the District Court is affirmed. Reversed and judgment of District Court affirmed.