Ex parte MARCX, 246 S.W. 81

PIERSON, J. On the 9th day of August, 1922, a writ of habeas corpus was issued in this proceeding upon the application of relator, Phillip Marcx, complaining that he was illegally restrained of his liberty and confined in the county jail at San Antonio, Bexar county, Texas, by John W.

Tobin, sheriff of said county, by virtue of a commitment issued out of the district court of the Thirty-Seventh judicial district on an order finding relator guilty of contempt of court for violating a temporary writ of injunction theretofore issued by said court, and assessing punishment at a fine of $200 and imprisonment in the county jail for 30 days. On the 8th day of July, 1922, Hon. D. A.

McAskill, district attorney of the Thirty-Seventh judicial district, filed a petition for injunction to restrain and enjoin relator from using his certain house, dance hall, and premises on the Austin road 9 miles from San Antonio as a bawdy and disorderly house, and as a house and place where intoxicating liquors wer.e kept, sold, dispensed, etc., in violation of law, and to declare said premises a nuisance. A temporary injunction was granted by Special Judge W. W. Walling and same was served on relator.

On the 25th day of July, 1922, relator was cited for contempt of court upon a motion alleging violation of said injunction on the night of July 22d. Upon hearing, relator was found guilty of violating the terms of said injunction, and the punishment assessed as above stated under the provisions of the state-wide intoxicating liquor prohibition law (Vernon’s Ann. Pen. Code Supp. 1922, art. 588¼ et seq.).

The burden of relator’s contention is that the judgment of the trial court is void because said court was without power to assess the penalty that it did; that the writ of injunction restraining relator from using’ his premises for keeping, having, giving away, or dispensing for sale intoxicating liquors in violation of law was void because there were no pleadings to support said writ, in that the petition for injunction did not allege a violation of the state-wide intoxicating liquor prohibition statutes, but that the petition only asked for a temporary writ of injunction to restrain relator from running a bawdy or disorderly house, and particularly, because the prayer did not pray for an injunction to restrain relator from violating the law under the liquor statutes; that, the punishment assessed being unauthorized, the judgment was void, and the relator should be discharged.

As presented by relator, the petition for injunction did plead fully facts showing a violation of the bawdy and disorderly house statutes, and declared relator’s place to be a nuisance, and prayed for the abatement thereof by the writ of injunction as authorized by those statutes.

Said petition also pleaded fully facts showing a violation of the state-wide intoxicating liquor prohibition statutes, as follows: “And the said district attorney further states unto the court that the aforesaid premises and buildings located thereon on the premises here-inbefore described were at all times mentioned in this petition, and are now, by the defendants and each of them knowingly used for the purposes of storing, selling, receiving, delivering, bartering, and giving away intoxicating liquors in violation of the law, and the said premises are threatened to be so knowingly used by defendants, and each of them, for the purpose of storing, selling, receiving, delivering, bartering, and giving away intoxicating liquors in violation of the law.

That the defendants, and each of them, maintained and assist in maintaining the aforesaid rooms, houses, buildings, and places on said premises where intoxicating liquors were at all times mentioned in this petition located and kept, possessed, sold, and bartered in violation of the law, and are threatened by the defendants to be so maintained.” That part of the prayer in the' petition for injunction which applies to the violations of 'the state-wide'intoxicating liquor prohibition statutes reads as follows: “And the district attorney further prays that under articles 588⅛00, 5SS1/4p, 58S%pp, and 588%q of the Penal Code of Texas that the court abate and perpetually enjoin such common nuisance so maintained and threatened to be maintained by the defendants.” This is followed by the further prayer that, upon judgment of the court abating and enjoining the nuisance, the premises of relator be closed for a period of one year, unless bond in the sum of $1,000 is given, conditioned as required by

article 5881,4pp. Articles 588½00, 588¼¾ 5SS⅛pp, and oS83i!q, Penal Code, referred to in the prayer, are parts of the state-wide intoxica ting-liquor prohibition law, and are the articles of the statute that prohibit the doing of the things and the keeping of the premises as alleged in the petition, and declare same to constitute a nuisance and provide for abatement by injunction. For the violation of these articles the punishment is provided in the succeeding

article 588%s, and it was in accordance therewith that the district judge assessed the punishment herein. The trial court, to be sure, would have been authorized, under the allegations and proof, to have enjoined and punished relator under the bawdy and disorderly house statutes. However, the allegations and proof in that connection do not in any manner weaken or impair the allegations and proof in regard to the violation of the liquor laws. They strengthen, rather than weaken. The punishment assessed by the trial court was very moderate under the proof and under the authority,of the statute. Relator presents that

article 588⅜3 authorized the punishment therein provided only in cases where a permanent injunction has been issued, and not where a temporary writ has been issued. There is nothing in the

article to so indicate. On the contrary, the

article indicates that the punishment provided applies to the violation of any injunction authorized by any of the articles of the state-wide intoxicating liquor prohibition statutes referred to in

article 588%rr. We think it unnecessary to enter a discussion of the principles that control the issuance of writs of injunction and punishment for their violation, but, as applicable to this case, we refer to 2 High on Injunctions (4th Ed.) §§ 1416, 1417, and 1430; Ex parte Warfield, 40 Tex. Cr. R. 413, 50 S. W. 933, 76 Am. St. Rep. 724; Lytle et al. v. Galveston, H. &. S. A. R. Co. et al., 41 Tex. Civ. App. 112, 90 S. W. 316; Ex parte Olson (Tex. Sup.) 243 S. W. 773. We have carefully reviewed all the assignments presented by relator, and they are overruled.

Having concluded that the trial court did not exceed its authority in assessing punishment, and that the judgment entered by it was in all things within its jurisdiction, it follows that relator must be remanded to the custody of the sheriff of Bexar county; and it is so ordered. <g=s>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes