. 

._.- 

.*. 

OFFICE OF THE ATTOftNE? QEN’ZkAL OF TEXAS 

AUSTIN 

WCC SCLUCC 

!z!tz=F 

- . . 

_~ 
. : 

“l&& arr A,,& g;&&&& a&&t.&)& 

om.ePs ‘of a grow-of o&tle.aasembl&t ‘In a glmz 

territory against the sale of USA@: 4m.fnaZs fqr 

slaughter, ,for hwan consumption p&&poses, when 

positive proo$ m4.d be eatabZished that the oattie are. badly diecased vlth ‘ce.nmr or other di- ., 

seasea., or iafeotI.om tbst renders the meat ‘them-, 

fawn ,onflt far hman conaumptlon pwpo8e8.’ ~. 

‘Legayt - .’ 

%n lntereat of proteat& t;aa:Eea~th’of dt% 

people, ooulcl art injucmtion bs 8ustalneQ against’ 

ths huger or .Owner of bsrXLy dlsr?ase$, a@ otheP-’ 

wise unfit ‘llve.ytock for. hunian oyynptlo+ fpq ,I ‘.. 
Xoaorable Rogep Q. mans, page 3 

boLng transported 

pose of slaughter 

within the Stata for the purfor human consumption p~~posea. 

“Legallgt - 

“In Interest of protoctlng the Eooalth of our 

people ooukl en IQJuQCtlOQ bo sustained against 

,an inafvidual, a Company, a corporation, dealing 

exolU3lvely in discasea, crlpplod, or otherwiao 

unl'it Livestock for human conswnptlon purpose, 

“where positive proof can be entablinhed that aaid 

individual, Company or CoPporotion with minor exceptions am8 only in livostod: that ar0 CD~COPous, llllopy jawed, orlppled, OF badly infected 

with acreu worms, OP other d~iscases that cause 

the antiilals to be weaken& to ouch an extent that 

they may’ far1 ilDliQ in tho k;illLng chutes. 

“IQ an effort to protect the &alch of OLW 

citizenship !!ould a clraz*ge of sabotage a@lrist an 

iQdiVth!Zl, a compeny OS x corporation be within 

the scapo of la..., uhc~~.posLtFvo proQf v!3a ostabl’ishod that tha i~~U.viclual, ccmpang or corporation 

was knovln@y dealin,n, in livestock unfY.t for humn 

consurqtlon purposes? Or denllng In root or the 

,by products that are detrimental to the Ecalth of 

0t.z people? 

“The Committee Smther- wishes to call rour 

Department to those othor facts. 

“Thsoi*& arron@i:cnts vith certain stock yards 

tha Committco is furnltAm3 with rooords as to the 

buyma of the above clans of livestock, and UC haao 

proof that aomo buyer& move thin c&as of C?~WXXW~ 

livestock to paoturos In lareo gurntlties, which 

takes than out of jurisdiction of t&3 stock barbs, 

and thcu resell them to buyers CT; sl.au&terers 

where Pn thero is no inapoction, or in?dogc.ate inspection uhLch is wo~ae thcln no FnspectLcn la that 
Honorable Roger Q. Evans, page 4 

it Sools the public. Other buyers move large numbers by truclc or by rail to locations that haa no 

inapectioa, or inspectors that permits such class 

of animals to be slaughtered for human consumption 

purposes 6

1 

‘Your attention is ftithes called to tho fact 

that the people dealing in thls class of llvestock 

are as clever as ~1 Capono uas and by far a womie 

enemy to the publla. 

1 . 

“As the Committoe lntesprcts the present laws 

dealing with slaughtering of livestock for human 

oonsumpl;lon, that insonitamtg ccnditions is about 

all the law covera, so it is almost impossible to 

stop the flov of diseased and unfit cattle into 

the channels of trade for humn consuxy~ion p~lrposes, without a broador lnterpratation of our 

laus. 

“The Committee ~113. be glad to furnish avidenco from leading Voterlnsrios that hwbrcds of 

heads of such cattle are being slau$itered monthly 

for htiman consumption pwptme, anri that the meet 

therefrom Is unfit for hliilsno to eat. The Commlttoc further hna proof thnt mmh of this meat is 

aok LA the form of @ound meats, sausages, and 

lush mats thet is feA to school children ati defense wor+kers 3.n preparing lunches. 

“The CommIttoe feels th8.t lnrlch meats and 

other processed meats should be from just as healthy 

cattle a3 our prime roasts or, beef steaks. 

"Ill our a~penl to you for a gersoril considcration of this witter NO call your attention f&it 

tho ldyislaturo sill not bo In regular scsslon for 

a QG;IP, and during that time the Iiealth of our 

people is in jaoy~rdy, and vill centintro to grov 

woxse If the commnyftteo fails to find rclLcf through 

the Courts, thcrofope ve urg,c: and pray for aoslstante in our effazts to safeguard the llcalth of our 

peop3.e froia a fev money aceking usocrupulous unworthy people that aye a disgrace to be c$assed 05 

citizens of any country, including Sa*n. 
‘i 

BoAorablo Roger Q. EVCAS, page 5 

House Resolution No. 232, providing for tho appointment or a Committee to investigate the sale of certain meat, 

is printed on pages 2623-25 of the Rag 3, 1943, issue of the 

%ouse Journalr The report of the, Committee is printed, on 

pagoa 3061-63 of the May 11, 1943, iaeue of the Rouse Journal. 

Undoubtedly the matters and facts disclosed both in 

your latter an8 In the Corzitteo*s report, justify furthcr 

legiolative treatment stren@henlng the law. Such aale~ 

should be declared a public ntisance and injunctive relief 

ape&f ically authorized, 

As to your last or fourth guestlon, a careful aearoh 

of our State statutes on the subject did not dlBolose any statUt;t? AOW in fOrCG app;2icoble t0 the facts ROAtiOA3d iA you! 

1ettorr 

‘speculate 

It is not withln the grOvinCe of this Department to 

upon the atificiencg of tho present Federal statutes. 

on whether 

Our answer to your first t&se questions depend upthe acts mentloncd therein constitutes a pubI& 

nuiuonco to prevent which the cGu1tabl.e poues’s of a court of 

competent ju~ladiction mny bo invoked to prohibit; the contlnuance of euoh acts, The prosent atotutes of Texao do not expressly authorize the issucnce of an injunction to prevent the 

anle of dead oniasls or the sale and slowhtor of disease& 

anlrals for human consumption. The Bt6tUte3, a3 hereinafter 

ehoun, do denounce these not3 as orImlnal, 

The general rule is that equttg does not restrain 

crimes; but a reco@.eed exception to this general rule la 

that cquitg may lnterpone to restrain acts amounting to crlnee 

If thE: facts show groundn for eguitablc jurisdiction, aside 

from the crL!ninal feature of the Hot comRlaincd of, and a need 

for the interposition of equity. Nul.z:anccs, 39 Am. Jur., 410, 

fi 147; 4X2, b 148, -- 

., 

It should be borne in miind that the basic conception of a urit of injunctlon 1s that “It is a protective and 

prevantntivc rather than a restorative writ, nncl should not 

be used whcso t&c la%! provides s~nple and efficient moan3 for 

the prevention and punishment of crime and the preservation 
““cl 

Xonorablo Roger Q. Evana, pa@ 6 

413. 

Of rlghtfi.” San Antonio V. Schutte, (C.A. 1922) 246 3. U, 

Again in the aa.xx oaae the court said; 

‘Injunctions ohould be strictly confined to 

the purpose of prevcntln~ imeparable injury when . 

the law l..s Iugdegmte to attain ouch object. . . . 

The urit of injunction in its bcnoficiont use is 

an agency of the oourt filled with bleasfngs to 

the people, but in Its lcvish sod ill-coaaidered 

application it booomes a terrific abuse of law and 

order, and a mmme to republican yoverrment .‘I 

ITow the poue~ to protect the health of the publio 

-- - - . . - ~. 18 Inherent in ever aoveralgnty -- kimzel v. Cit 0P ;sen _I Antonlc, (1920 C.A. 9 221 5. b!. 237, erro;’ refuse . 

--..---...-- &L’-&xGy 

hotice Fisher of the Austin Court of Civil A .poalo In Ca 

of Lleno v. Llano cou?lty ( 1893) 23 9. N. (2d7 100s spklgxug of the use of an equitable remedy as a cumlcti~e remedy, 

said: 

Ii ..a Whatever may have beer,, OF is nou, the 

construction placed upou the comon law by mm 

cowt~, to the effect that pu?~lio nuisances that 

arc ~ololg injurious to the Se;lcml public can 

only be abated at the 3.nsimxe of the sovereign, 

either by indlotnent or cc,uitable remedy invoked 

bg its law offiWu?s to th3.t md, must yield to a 

policy that has gxorin Into a principle of luu In 

novt of the etatos of tho Union, to the affect 

thst the state, in its aoveroign capacity, has 

delegated its authority In thQ respect to those 

muulaipal corgorstiono that are nctiug a3 cltg; 

Sovcruments by authority fron tho state. ..t 

The Legislatum leas passed 13~ regulatir?g the sln~ghter of 

an&ale for food connuqtion aud the sale thereof. 

i 

. 
Honorable Roger Q. Evans, page 7 

Penal Code, Artlolo 707, atatcsa 

“For the purposes of this chapter an article still be deemed to be adulterated: 

” 

. ..* 

“(0) In the case of foodr 

” ?.. . 

I 

"(6) if it oonsists In whole or in pnrt of 

a filthy, decomposed or putrid ani!izl or vegetable substance, Or any portiOn of en Einim21 or 

vogatsbh? unfit SOS food, vhethcr ~~nufnctured or 

not, or if it is the product of a diseased sniwl, 

or one that has died otherwise than by slnu@icr. 

“The term ‘filthy’ shall be deemod to apply 

to food not securely protected frou flies, dust, 

dirt;, and as f6r es may ba necessary by al.1 roasonablo wans, from all foreign or ~njwious contamlnct ions, ” 

The pcnz.by fo$ violntl~ the pure food l%ws (P.S., 

$A;, g7) is by fin:, of not lcs s than $25.00 nor nom than 

9 í l It shall not bc nc’ccsn~.r -q for t11.0 iIIdictKont to al1~0 02 foF~?lZjEFm to I~~KXZG the act OS oZXZ5.?Zon ms3 

Elo-~~on8 OS pEiEYia7 ~lLxIpT3 --- owa) 

Now the court in ohlch there hns boon presented an 

indictment or information for casryim on any trade, busiAC89 or occupation injurf.ous tO,,publlC health IGIg “Oi’l the L3pplicatlon of auyoae interested, Ulld ostcs hcsrfn~ arid procOT, 

‘restrain the defendant, in such pen!Aty as m&y be dcor;cd 

propor, from carrying on such tmdo, bu.sLaesn or occupatic%o, 

or WY m&e such order reqx!ctin~ the mCknne* tXldnpl.~Ce Of 

carryin on the snmo as mny be deenod cdvisnble; and if dcfendant be convicted, the rentreint e&ill be l:?lh pel+pctLd.. 

C.C.P., Arts. 104-109. 
Ronorable Roger Q. EVOAS, page 8 

“Whoever shall carry on any trade, busluess 

or ~occup3tio~ Injurious to the health of those 

who resic!o in tbo vicinity, or suSYrany substance tM.cil &IS that oifect to remin on poemi3eS in his pOXlC33iOll, ShZlrr‘be fined not z 

than ten nor t101~e than one huA&ed dollars. Eeoh 

day la a separate offense.” (mphasis ours) 

Other articles of the statutes, for instance, Artlclo 4664, define nufsanosst but these definitions are not pmtlnent to tho mtter under discussion. See article on BUSsnnpes 10 23 Tcx. YUP, 409. 

The 

ed In Article $ 

oneral grounds Sor'an'lnjunctlon am enurnerat642. Sactlon 3 of that article Is as Sollovs: 

‘f3. Where the applicant shows hiwolf entitled thereto under the Rr,rinciples of equity, and 

the pmvinions of the statutes of this State relatlug to the granting of tijunctloas.” 

And pwti~ular ca3es for lnjmctlon are muxeratcd in Art:- 

cles 4664-4668, inclusive. Ar,tfele 4663 speclfios that 8 

“Tha prinCiplos, pmctlce and procedure govcrni~~ courts of eq~~ity shall govern prooccd~s 

l~,lnjunctions vherl tha 3me cre AOk in oonf~fct 

with the provisions OS this title OF other law." 

Unqueetionebly tha LoSislatwe 1i3cy provide remdies 

by Injunction against comon nuiawces, and my authorize 

abatenent of such nuisances by injunction. Valllrrir v. State, 

(C&i,) 173 3. tr. (26) 731, And such injunctions are riot puuitive of crime but am? preventive of public or private injury. 

~njwctiom, 24 Tex. Yur., 71, 1 49, n. 20. 

I?utx? v. Gunn, (Cd. ) 11.3 S. ij’. 354, held that the 

rlr-ht to a%& nuiaaacca fs Q, veil ostcbllohed doctrl.ne of 

sqhtg coLIrt3, and is based on the anxlm th?t tho owner of 

property mu3t so u3c it as Aot to szatc~iallg injure another. 

A lawful business my be conducted so a.9 to bcconc a nul%xlce, 

in which case the ono Injwed Chwcby my enjoin the continuunce of the business in such a xay. Block v, Pcrtittn, (C.A.) 
b 

:.: 

i 

Honorable RoSer Q. Evans, paSe 9 

165 9. W, 504.. So.lt has been held that an lnjunotian will 

be nanted in behalf of the state to abate a pub110 nuisance 

which Is an Injury to the property or civil rights of. the public at 1arSc and which it 2s her duty, as agent of the public, 

to prevent. State v. Goodnl?ht, 70 Tex. 682, 11 9. W. 119. 

w of Balton v. Centrai%&%, 33 3. W, 297; State v. PC?;- 

teroon, 37 9. N, 478. 

The rlSht to abate a nuisance does not nscessarily 

depsnd on the cxlstence of provisions of the penal code defining the act Bought to be enjoined as offense and prescTiblng fine or Imprprisorxxmt therefor. Hetrich v. Stnte, (Clv. 

App.) 87 3. W. (2d) 887. But where sstatute does not authorize injunction to abate a public nuisance, the State must 

plead and prove that the business as conducted HCS a nuisance 

in fact, otherwjiso she 2s not entitled to an injunct2on. All 

Texas Rac>zF&estn, v, State, 82 S. W. (2d) 151.~ at psSe 197 

im’d., !q 9, Gi-gz&n%r In this case an 2njunctLon wan 

denied because the State want on the theory that bett2ng on 

the results of do3 races under par2 mutual system was a nuisance por so and prohibited by tho earzbline statutes. The appollate courts hold that the Gambling statutes d2d not apply 

and were therefore 2nappl2cable. 

Aad the Sovernment nsy sbate a nuisance, whether 

or not the owners have been guilty of crlno. 

272 u. 3. 630, 47 9. C. R, 218, 71 L. Ed, 446, 

Mur h. v. tJ.S,, 

Thus it has been hbld that health authoritfcs may 

mainta2n su2ts in equity to enjoin or restrain acts which are 

a menaae to the health of the public, even beifors actual injury has been inflicted. 

37, 38; Health, 29 C. J. 

Rcalth, 39 C.J.S. 861, b 36, notes 

759, n, -j-p; 802, n. 41. 

]?.258, n, 87; liuisanccs, 49 C. J, 

Nor 1.3 en inja%ii%xcluded 

because of the penalty provisions 2n a statute, supra. 

In Cprdwoll v. Austin, (Galveston C.A. 1914), 168 

3. W. 385, the court heliE%-the Acts, 33rd Le@slatura, 

ch, 47, pv.nishirq tke pollution of any ue.tcr aourse by the 

discharge of any ser?age therain, and providing thnt on conviction thn county court shzll issue an injunotlnn enjoiniw 

the person or corporation responsible for the pollution from 

a further aontinuance thereof, does not Oeprfve the district 

court of jurisdiction to preventand suppress nuisances by 
Honorable Roger Q. Evans, page 10 

injunction. The appellant CQntended that “the county cdurt 

alone had jurisdiction” to issue an injunction, 

it clear,” said the court, 

“We think 

“that the Legislature in adopting 

the Act did not attempt or intend to Interfere with the exerolse by the district court of Its general equity jurisdiction to prevent and supprasa nuisances by means of the writ 

of injunction. At most the remedy by injunction conferred 

by the Act upon the county courts, in only cumulative of the 

remedy conferl?cd by law upon and resting in the district 

courts. Certainly it cannot be held that the Act deprived 

the district courts of jurisdiction, Tho asaf+nmcnt and propositions are wI.thout merit and are overruled.’ The CardwellAustin case has bcon cltod with approval in recent declsl.ons 

by the Supreme Court. 

Goldsmith and Poval.1, ct al., v. State, (Dallas 

C.A. l$h?)~ S. k’. (2m34, wr 8. denied, was a suit by 

the State to enjoin the defendants from polluting tho waters 

of tho Neches River because salt water from the defendants’ 

wells entered into the river, and that the dafendcnts tltnea- 

“,~;;t further pollution of tho public water cour$c. The oout 

1% creation of such nuisance, they 

may be jGbV3d in a coxznon action, an action in 

equity fop injuncti.on, against the defandonts whose 

separate and individual acts resulted ln the zame 
Honorable Roger Q. Evarzs, page 11 

general consequence of wrong.” (mphasls ours) 

In F3 Parte Huy;hes, (1939) 133 Tex, 505, 129 S. W. 

(26) 270, our suprame c ourt refused to enjoin the lnfractlons 

of our usury statutes because the nuisance though it affected the “rights of interest to sona pLU?tlCulRr Group, even 

though that group may be of I&I?@ proportions’ (at pace 277, 

2nd column) dld not affect the property or alvll rights of 

the public at large; in that the usury laws c??cate only p,~lvate, not public, rlghto. I&, Justice Crlte, speaking for 

the court, at page 274, naidt 

“Our courte of equity, ns such, have no juzlsdlctlon to antartaln sulLts to enjoin the cozmlaslon of acts mme1y because such acts comtlt&i0 crimas or yeml offenses unilor penal lau3. 

This Is because equity la not concerned with the 

enforcement of penal or crlr;llnal statutes. WhE?n 

the State, throuh its proper officers, invok;os 

tho jurisdiction of a cou-t OS equity to abate a 

nuisance, It must bo show:1 olthcr that the action 

1s darcctly authorized by aor.!3 constltutioxl OP 

staGGory law, or that EL& nuiccrnce 1s an injury 

to the property ok clvll rights of thz public at 

large, -- that is, to the public gouerally, . ., 

(clt Fng authopltlcs) .” 

In Crowder v. C-mhzm, (CA.) 201 3. W. 1053, 1055, 

the court saldr 

“It is well settled that, in the abccnce of 

soms stetuto specifically uuthorlzlng the same, 

an ln,jur.Gion will not lla to restrain tha violation of a penal statute, sIxply because th3 &cIi 

enjoined lo dsnounced as an oSfcnse, but that nn 

tnjuxtlon will lie to rcstrultn the act, cvcn though 

lt Is an off’ensc, if it constl.tutes ,a public nuisance under tho oomon law, ” 

And tho court mast be satisfied that ths antlclp3tcd Injury 

1s 1 33, lminent pngo end 446, certnln n, 19. to occur, -- Nulnancss, 31 Tcx. Yur., 

._.. .,.I’, ,i 
Xonorable Roger Q. Evaaa,~p3@3 12 

The State my sue to abate a public nul3ance, provided the rights of the public at large are endangered of being injured. Thus In State v. Patterso& (1896) 1.4 Civ. App. 

465, 37 9, W. 478, the court at pa@ 479, said: 

".,. courts of equity hsve urisdiction to 

abate public nuisances La ,.. well established 

.** (oitinz authorities) Rut it doea not aeceiearliy foliow from the facts that a comon ga;aming house is a public nuisance, and that court3 

of equity have jwiodlction by injuaotlon to abate 

a nuisance, that such jurlsdictlon ~111 be exertioil to rest;tyaln the coiltinumce-of on 

trade, the abntcmont of a nuiswcc, or the proseoution of a dmgelTOu3 enploymnt; but It3 powem 

to do so in such cases bclon.gs to the &moral powcra 

possessed by courts of cquL,ty to.prcvcnt Isreparable mischief snd obvieto damgas for which no 

a~dequate rwrody exists at law. . . . 

thoritles) 

(citing fluIt is onlv rrben p~oaertg or civil 
Honorable Roger Q. Evans, pace 13 

the'acts constituting the offense no coznpensatlon 

for such lajwg, courts of oqulty ~111 interfere 

to prevent such an Injury, notulthatandlng the 

comaisslon would constitute a crlninal offense, 

not because it would be a crina, but because the 

injury to such rights would be lrrcparable. It 

cannot be sald that such lnterferenoe by & court 

OS equity is an Invasion of the domain of the 

criminal law, for no crime has been cormitted 

where equity interposes Its erm for the protoo- 

.tiOIl Of pXOpOl?ty OP CfVfl l'i$htS. In C?XtendilI~ 

Such prOtcCtlOn, it may prewnt a Crin~; but, as 

no one hg & Fight to comLt or4me, no olle ohould 

be hG&Pd to CoDplain that he is reatzalnod from 

lts comissim, r!hcn su.ch roetrair,t hpa boon exercised in the jurisdiction of a court for the 

pwposs of preventing hln from lrrep2rabI.y lnjurlng anothor In his proportg or clvll ri&ts. But 

courts of cqulty never lntcrfcro for the purpose 

of acts constituting crino bocouoe they fm crti1~1, for they have nothing to do w5.th trim as 

SUCL Thclr interposition is solely fop the pi*otection of proqerty 02 oivlX rl$ts; and, the 

only GlsCln~tlon b&w-en c pH.vate and a public 

nuloanco be&as that the one 1s cn lrjury to such 

riefitn of an igdividu%l and the other to trio 

rights of tho public at large, ‘tho same principle must guide tho interforeace of the oourt in 

both cases, and that prlnclplo is this : whether 

the extent oT thG da~ifige and lnjbwy be such as the 

larf will not afford an adcguato and oufflckat 

rercody.' Attorney Genoml v, Sheffield Gas Consumrsl Co., 19 Eng. Law & 6~. 644. Thwefore, 

throwh her ~rol;e_r_oPf~~er~;~~~.~:s 

rjT0. cous‘t-ol:. Q(li~fl;V to ,$:j:j,f‘g-=~ d-d'-A- she Fz3t &IV t!lnt nl?sh i~uia~~zcc 

.--- 13 an in$i?,ry to the ~ZZ~iZGZiXliS~i!~~t3 0.T 

---y~Q-ggjg~ the ~_ ,q----------- 

aJql.t of t&3 puarc, 

'TTf3 it 3,s her i;ur;:r,s the 

co Jy~r~* l , * F ;1 r ,:;p EZi3 

OUT} 

78 L. 

In I!ebbln v,>Teir YoP&, 502, 54 9. Ct. 505, 

507, EdTi%?jpy iii{. 

291 U.. 9. 

146y, lfti. Just fee Roberts pertinent ly observed; 
Honorable Roger Q, Evans, page 14 

“The Constitutiod 

liberty to conduct hFs 

to inflict lnjury~upon 

does not aecura to any one 

business in such Sashion as 

tne publfc at large, or upon any substaatial group of the people.” 

The late rovercd Chief Justice Nelson Phillips had the same 

thought in mind whon in S nn v. City of Dallas, (1921) 111 

Texr350,x235 S. It. 513, -f&i, he said: 

“The pollco power is fouhded ia public nocessitg, and only publLc necessity can justify its 

exercise. The result OS its oporat1on is A2Iturslly, in most instances, the abridfgmnt OS privat0 3? tg11ts. Private rights OFO never to be sacrificod to a greater extent thah necessary. ThweSort, the rgturn for their sacrifice through the 

e,xerclse OS the police povcr should be the attainment of som .pubZLc objact of aLlCSiciont necessity 

and importanca to juotQ varrant the exertion of 

the pokier. 

“Since the right of the citizen to use his 

property OS he chooses so long as he harm nobody, 

is mei iP_hei'~At and COAstLtutior?i?l ri&It, the POlloe paver cannot be Lnvokod for the abridg;zant 

of a particu3nr use of prtvute property, unless 

such use reasonably endangers or threatens the public health, the Eublic safety, the public cohort 

or welfare. . . . (Enphasiu'ours) 

Cattle 3ufforing:' frow a dangerous, fnfeotloua, or 

cozmmlcable disease are public nuisances at co-Don law. A 

nulsnncs at comon lax< could not be lc~alleed. People v31 

ArL&?r3oa, (1934) 355 111, 289, 189 pi. E. 338, ai;-'iZET~. 

In cO!21. V. 3[;lCnn-L, (1913) 240 Pa. 21*h, 87 Atl. 

605, 47 L. h.?.r(‘3y)-@(;j, the Pennsylvania Suprem Court 
Honorablo Roger Q, EvaAs, pnge 15 

he.ld the pollution 

is in the riparian 

of a stream the title to the bed of which 

owners to be a pub110 nuisance, tho POAA- 

. . SylVcAi8 LegislatuF% having t+We it a misdex?mnor punlsMble 1 by Sine or lnprisonraont to pollute any of the vatsrs IA that 

stats, the court held thati injunction lies against tha pollution of a stream In such a manner aa to CoAotitutc a pub310 nuisaAce, saying: 

” 

.., Because se~!go is the most officlent 

medium for the BisseninatioA of infecting germs, 

uhlch do their deadly work in ouch an iASiAite 

vcrlaty of Insidious ways, not at all dcpenfknt 

upon Sroe access of tho public to the stroen which 

tha germs pollute, it cnn~ot bs said that the 

tripwian o:mrs alone have an interest in the 

stream* ’ l.hcn this doleterlouo substanco pollutes 

any running stream the public hcslth is endtin$?red 

thereby. The infection from which the rPpsrLa\n 

ol;ner hifilsolf may percdvonture escape ray nevertheless in a hundrod ways, Ghxough his Innocent 

acts, sprcnd throwh a co.~int.u~2ty; for he no ~j;ore 

than any othsr, Lives to hinaclf alone. . ..‘I 

W-LSPC the property rights of nsny cltizcns are involved, it is proper for the government on their behalf to 

Invoke pouers of equity, end the injunctive pocess my be 

i~volml k?hcn the health or very existence OS the people is 

menaced by the deprivation OS esscntU.3 Sood or by service 

of such food in a coutan@atcd stats. ILLso equity has the 

inherent power to restrain threatened nuisances dnARcrous to 

the health of the whole community, this boicz an exception 

to the erincicle that a court of couity has no jurisdiction 

ia msttk3 of-crime. 

1935) 179 iitl, 116. 

State V, RetGrk iiil.2~ Cs; (IZcv Ycrscy, 

In that case the ~0uZ~~r.t pago 121) 

“This principle should not be extended beyond its sound constitutional basis. The po;!cr 

here ezorcfsoc? is inherent in courts OS equity. 

Equito.b,le jcrlsdictica has ah~xga been cxcrcissd 

to restrairl tixpsteaed nuiennccc d.angcro3os to -...-- 
Donorablo Roger Q. Evans, page 16 

the health of the whole oomnunlty; Ita exercise 

antedncos our Constitution. In Heddea v. Rand, 

supra, Justice Rellsch, quoting from State v. Uhrl& 14 MO. App. 413, sets forth the grounds Par 

equitable interposition in cases of public nuimncea : ‘“(1) To restrain purpreoturcs of public 

highnays or navlSat5.0nsr +*+ (2) To restrain 

threataned nuisances dangerous to the health of 

the wholo community. ***’ (3) To restrain ultra 

vires acts of corporations Injurious to public 

ri@G; ti end that the exeralse of equity jurisdictloti Iti these three classe~s of cases is an exception to the rule *** that a Court of equity has 

no jurisdiction in matters of crime.’ In Hutchinson V. Board of Health of City of Trenton, 39 

M, J. Eq. 569, this court sustained a decree 

enjoining the &lscbarSe into a water ooursc, 

throu$ a pipe, of filth and offensive matter 

from 8 hotel. . . , 

“Roreover, the milk business , . . is affected with a public interest) and it is the settled 

rule in this state that equity m,oy Intervene to 

reotrsin a course of oonduat, in respect of a 

business OS this character, vhlch tonda to affect 

the public lntcrest injuriously. . . . (citing authoritics) Where the property ri&ta of many 

citierna are involved, it is proper for the government won thoi.r behalf to invoke the Dover3 

of equity; Pomcroy*s.Equitabla Rcaadiss;[~ 480. 

A fortiori, the injunctive power may be invoked 

when tho health 05 very existeuce oc?he neoplo 

in man!xe~~~tion 01’ an esscn’iaLlyood 

comuodity, Or it8 SerVlCe in a COntXlj~:j.n~ted State." 

-@mphas13 Ours) 

All those uho act together for the ultimate purpose 

of sclllng dlaez.eed meat to the public for human consumption 

may be enjoined a8 such a business 13, in our OpinlOn, a public nuianncei 

The sale OS Caftla such Rs you describe for slaughtor to be sold as food for huean consumption certainly constltutes a menace to the health of the citizens. Such a business 

--- 
Honorable Roger Q. Evans, page 17 

i 

i 

1 

I 

1 

Is, in our opinion, a public nulsancc, ma, ~8 gou state, AAless enjoined from being sold for huma consumption would 

cause BA epidcnic of disease. 

The State Board of Bealth and the State Health Officer have Eonera supervision and control of all matters 

,pertainin to thd health of the citizens of this State. See 

Artides & 418d, 4420, 4421, 4446. 

While as far as pOp0m.a cases in Texas are concerned, rellef OS the character contemplated has not been 

granted or denied upon the exact facts disclosed by your letter; it .dces not f,ollow by any mseas that the above cited 

precedents or authorities are ACt applicable or controlling. 

Precedeuts illustrate principles. They serve to den;onutrate 

how and uhcn they have beeu applied, The true precedent, however, is the correct pritMplo applicable tc the facts OS a 

particuLar case. Courts should be “swift and fearless” to 

protect the health of the aitieens, 

To limit the Statc solely to the prosecution of 

those who violate the public health 2GWS of Texas means that 

the state would be cCmppllk3d to wit until the hcolth wmce, 

dincorafort, ill-health and perhaps d.eath, Is actually pwscnt, 

To be of real. value health authorities must huve authorlty to 

, take, ad the couvts should aid in taking OS, such action as 

is nccossa~y to provent a health mnsco which is roosonsbly 

likely to occur under the facts and clrcumtances applicable 

thereto. 

Trusting the foregoing fully answers your inquiries, 

I. very truly yotws 

A, d--- TORBIZX GEIkRAL OPITEY&S 

David Kuntch 

Assistcint