Opinion
No. 4247.
March 24, 1932.
Appeal from District Court, Smith County; E. M. Dodson, Judge.
Suit by the State against Lee McCombs and another. From a judgment for plaintiff, defendants appeal.
Affirmed.
This was a suit for an injunction, brought by the state against appellants, Lee McCombs and H. E. Jones, who, it was alleged, were "engaged (quoting) in maintaining and operating a `pool hall' * * * known and designated as the `Tyler Recreational Club' or `The Club,' located in the basement of a building owned by Tom Swann located on the north side of the public square in the City of Tyler, and being a place, room, hall, building or part thereof in which is exhibited for hire, revenue, fees and gain, pool and billiard tables on which may be played pool and billiards. * * * That said defendants (McCombs and Jones) and each of them knowingly maintain, operate and assist in maintaining and operating the above named and described place during all the dates and times mentioned herein and are now and will continue to maintain and assist in maintaining the same as above alleged unless restrained and enjoined by order of this Court." In their answer appellants denied they were engaged in maintaining and operating a pool hall as charged against them, and alleged the facts to be that they were "engaged (quoting) as employees and managers of the Tyler Recreational Club, duly organized, maintained and operated as a recreational club for the exclusive use of the members of said club and not to serve the general public; that these defendants say that they do not maintain nor exhibit for hire, revenue, fees or gain of any kind or for advertising purposes of any kind, any pool or billiard table, or stand or structure of any kind or character on which may be played pool or billiards or any game similar to pool or billiards. In this connection, however, these defendants say that said club owns and maintains books, magazines and papers for the use and convenience, enjoyment and amusement of the members and that it owns what is termed a bowling alley and what is commonly termed pool tables and that the members of said club have access to all of said equipment and the privilege of engaging in any of said games at their will and without charge to them but that all of said equipment is owned by said club and the membership thereof for their exclusive use and enjoyment and without cost to them other than the dues which they are obligated to pay as members of said club." It appeared in evidence heard at the trial that appellants and one Woodruff associated themselves together and organized the "Tyler Recreational Club," for the declared purpose of providing "clean, wholesome indoor sports and recreational games, and to provide for the use of the members clean, wholesome literature and reading matter and to provide for any other forms of amusement and recreation that may be deemed best by the board of directors." Appellants and said Woodruff elected appellant McCombs as president and manager, and he, procuring an outfit and renting a hall, began the club business November 5, 1931. The outfit procured consisted of six pool tables, one snooker table, two bowling alleys, and a lounging parlor, reading room, desk, chairs, etc. Only members of the club could use the pool and snooker tables and the bowling alleys, but a person could be a member for a year, a month, a week, a day or an hour, by paying membership dues of $120 for a year, $10 for a month, $2.50 for a week, 50 cents for a day, and 30 cents for an hour, but, it seems, no one ever became a member or paid dues otherwise than by the hour. The association was not a subscriber to any newspaper or magazine for use by its members, but at times purchased daily newspapers "as they came out." Appellant McCombs, as a witness in his own and his coappellant's behalf, testified that no fee was "paid directly for the use of the pool tables." The appeal is from a judgment granting appellee an injunction as prayed for.
Mayfield Grisham, of Tyler, for appellants.
Ernest Goens and Nat Gentry, Jr., both of Tyler, for the State.
In their brief appellants insist it did not appear from appellee's petition nor from the evidence that appellee was entitled by force of provisions in article 4668, R.S. 1925, on which the suit was based, to the relief granted by the judgment from which the appeal was prosecuted. Said article 4668 is as follows: "No person acting for himself or others shall maintain or operate a pool hall within this State. The term `Pool Hall,' as used herein, includes any room, hall, building or part thereof, tent or enclosure of any kind similar to those named, or any inclosed open space, in which are exhibited for hire, revenue, fees or gain of any kind, or for advertising purposes of any kind, any pool or billiard table or stand or structure of any kind or character on which may be played pool or billiards, or any game similar to pool or billiards played with balls, cues or pins or any similar device. Any such table, stand or structure of any kind used or exhibited in connection with any place where goods, wares or merchandise or other things of value are sold or given away or where or upon which any money or thing of value is paid or exchanged shall be regarded as a place where is exhibited the same for hire, revenue or gain. The habitual, actual, or contemplated use of any premises, place, room, building or part thereof or tent, or any kind or character of enclosure similar to those named, or any uninclosed open space for the purpose of exhibiting any table, stand or structure of any kind described in this article may be enjoined at the suit of either the State or any citizen thereof. The Attorney General of this State, or any district or county attorney, or any citizen of any county in which any pool hall is maintained, operated or contemplated may, either in term time or vacation, apply to the district judge of the district in which is located the place where such pool hall is maintained, operated or contemplated, or to any district judge in Travis County, for an injunction to prohibit the maintenance and operation of any such pool hall. Such judge upon the presentation of a petition for such injunction shall issue a temporary injunction or restraining order, and, if upon final hearing thereof the fact be shown that the defendant is guilty of keeping, maintaining, or operating a pool hall, or of contemplating such act, the court before which the case is tried shall grant a permanent injunction against such party as prayed for in the petition. Any person operating or contemplating the operation of any pool hall in violation of any provision of this article, or anyone aiding or abetting such person may be made a party defendant in such suit"
The argument in support of the contention is that to entitle appellee to the injunction granted by the judgment it must have appeared, and did not, that appellants could have been prosecuted criminally for a violation of the statute just set out, and punished by a fine or by imprisonment in a jail as provided by article 653 of the Penal Code. Appellants cite State v. Duke, 104 Tex. 355, 137 S.W. 654, 138 S.W. 385, as a case supporting that view of the matter. We do not think it does, but, if it should be conceded it did, we do not think the contention should be sustained; for we see no reason, and appellants have suggested none, why it should be held that the evidence heard at the trial would not have warranted a conviction for a violation of said statute. We think enough of that testimony to authorize a finding that the association in question was a sham and subterfuge to evade the prohibition in said article 4668 is set out in the statement above. As we construe the record, there is no error in the judgment, and it is affirmed.