76 S.W.2d 545 | Tex. App. | 1934
The suit is in the name of the state of Texas by both the district attorney and the county attorney in the purpose to abate and enjoin a public nuisance, of maintaining a house and place where intoxicating liquors are kept and sold. The appeal is from an interlocutory order granting a temporary injunction. The first assignment of error is to the point that the plaintiff’s petition is subject to a general demurrer. It becomes unnecessary to consider the other assignments of error and points thereunder.
The petition in effect alleged that the defendant lived in and occupied a one-story structure on premises one mile west of Mount Vernon on Federal Highway No. 67, and used it as “a dwelling and restaurant and a tourist camp,” and “for the purpose of selling intoxicating liquors, three-two beers in violation of the criminal laws of the State of Texas.” The prayer, reads: “Wherefore, the plaintiff prays the Court that a writ of injunction restraining the habitual, actual and contemplated use of the above-described buildings, residence and restaurant and tourist camp, or any part thereof, for carrying on the business of selling three-two beer, or other intoxicating liquors, and that the house described in this petition be closed under the padlock laws of this State and' the defendant be cited to appear and answer herein, and that the plaintiff have a judgment and this injunction be made perpetual, and the plaintiff have such other relief, special and general, in law and in equity that the plaintiff may be justly entitled to under the law and the facts.”
The petition, properly construed, is undertaking to stop the sale of “three-two beer” as á type of “intoxicating liquor” or alcohol beverage in the territory or locality in which the particularly described house and premises of the defendant are located. The other allegation of “or other intoxicating liquors,” being both general and in the alternative, may not be regarded. 31 C. J. § 181, p. 663. The omission of material matter in the description of the unlawful act cannot be supplied by merely a general charge that the act was committed “in violation of the criminal laws of the State of Texas.” 31 O. J. p. 694. These allegations may not be held sufficient to show a violation of law such as is required to establish under the statute a public nuisance, made the subject of an injunction. Articles 4664^-4666, Rev. St. 1925. The former used
Accordingly the order granting a temporary injunction is here vacated, and the cause remanded.