                         ._.-
            .


      .*.
                OFFICE OF THE ATTOftNE? QEN’ZkAL OF TEXAS
                                 AUSTIN
WCCSCLUCC
!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.fnaZsfqr
slaughter, ,for hwan consumption p&&poses, when
positive proo$ m4.d be eatabZishedthat the oat-
tie are. badly diecased vlth ‘ce.nmror 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 .Ownerof bsrXLydlsr?ase$, a@ otheP-’
wise unfit ‘llve.ytock for. hunianoyynptlo+    fpq ,I
                               ‘..
Xoaorable Rogep Q.   mans,   page 3


     boLng transported   within the Stata for the pur-
     pose of slaughter   for 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,   Companyor CoPporotion with minor ex-
     ceptions    am8 only in livostod: that ar0 CD~COP-
     ous, 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 ostab-
      l’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 UChaao
     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 in-
     spection uhLch is wo~ae thcln no FnspectLcn la that
    Honorable Roger Q. Evans, page 4


            it Sools the public.    Other buyers move large num-
            bers 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
                 ‘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
1           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~ionp~lr-
            poses, without a broador lnterpratation   of our
            laus.
                  “The Committee ~113. be glad to furnish avi-
            denco from leading Voterlnsrios   that hwbrcds of
            heads of such cattle are being slau$itered monthly
            for htiman consumption  pwptme,   anri that the meet
            therefrom Is unfit for hliilsno to eat.    The Com-
            mlttoc further hna proof thnt mmh of this meat is
            aok LA the form of @ound meats, sausages, and
            lush mats thet is feA to school children ati de-
            fense wor+kers 3.n preparing lunches.
                  “The CommIttoe feels th8.t lnrlch meats and
            other processed meats should be from just as healthy
            cattle a3 our prime roasts or, beef steaks.
                 "Ill our   a~penl   to you for a gersoril  considcr-
            ation of this witter      NO call
                                            your attention f&it
            tho ldyislaturo    sill not bo In regular scsslon for
            a QG;IP, and during that time the Iiealth of our
            people is in jaoy~rdy, and vill centintro to grov
            woxse If the commnyftteofails to find rclLcf through
            the Courts, thcrofope ve urg,c: and pray for aoslst-
            ante in our effazts to safeguard the llcalth of our
            peop3.e froia a fev money aceking  usocrupulous    un-
            worthy people that aye a disgrace to be c$assed 05
            citizens of any country, including Sa*n.
‘i

     BoAorablo   Roger Q. EVCAS, page 5


               House Resolution No. 232, providing for tho appoint-
     ment 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 stat-
      Ut;t? AOW in fOrCG app;2icoble t0 the facts ROAtiOA3diA you!
      1ettorr    It is not withln the grOvinCe of this Department to
     ‘speculate upon the atificiencg    of tho present Federal stat-
      utes.
               Our answer to your first t&se questions depend up-
     on whether the 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 contln-
     uance of euoh acts,    The prosent atotutes of Texao do not ex-
     pressly 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 concep-
     tion 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


        Of rlghtfi.”  San Antonio V. Schutte, (C.A. 1922) 246 3. U,
        413.   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
                     ITowthe poue~ to protect the-- health
                                                       -        of
                                                                - . . the - publio
                                                                             ~.
        18 Inherent in ever aoveralgnty -- _I   kimzel--..---...-- &L’0P
                                                          v.    Cit     -&xGy;sen
        Antonlc, (1920 C.A. 9 221 5. b!. 237, erro;’ refuse .
        hotice     Fisher of the Austin Court of Civil A .poalo In Ca
        of Lleno v. Llano cou?lty ( 1893) 23 9. N. (2d7 100s spklg-
        xug 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?sto 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 arti-
           cle           still   be deemed to be adulterated:
                          ”. ..*

                           “(0)        In the case of foodr
                           ” ?..   .
                  "(6)  if it oonsists In whole or in pnrt of
I          a filthy,   decomposed or putrid ani!izl or veget-
           able substance, Or any portiOn of en Einim21or
           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 roa-
           sonablo wans, from all foreign or ~njwious con-
           tamlnct ions, ”
                           Thepcnz.byfo$ violntl~ the pure food l%ws (P.S.,
    $A;,       g7)     is by fin:, of not lcs s than $25.00 nor nom than
    9      ’         l
                       It shall not bc nc’ccsn~.r-q for t11.0iIIdictKont to al-
    1~0        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, busi-
    AC89 or occupation injurf.ous tO,,publlC health IGIg “Oi’lthe L3p-
    plicatlon   of auyoae interested,    Ulld ostcs hcsrfn~ arid procOT,
     ‘restrain the defendant, in such pen!Aty as m&ybe 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 dc-
    fendant 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 sub-
      stance tM.cil &IS that oifect to remin on poem-
      i3eS in his pOXlC33iOll, ShZlrr‘be fined not z
      than ten nor t101~ethan one huA&ed dollars. Eeoh
      day la a separate offense.”     (mphasis ours)
          Other articles    of the statutes, for instance, Artl-
clo 4664, define nufsanosst but these definitions       are not pm-
tlnent to tho mtter under discussion.       See article   on BUS-
snnpes 10 23 Tcx. YUP,   409.

           The oneral grounds Sor'an'lnjunctlon       am enurnerat-
ed In Article $ 642. Sactlon 3 of that article       Is as Sollovs:
            ‘f3. Where the applicant shows hiwolf    en-
      titled thereto under the Rr,rinciples of equity, and
      the pmvinions of the statutes of this State re-
      latlug 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 gov-
      crni~~ 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     1i3cyprovide 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 puui-
tive 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 contin-
uunce of the business in such a xay. Block v, Pcrtittn,        (C.A.)
                                                                              b



:.:       Honorable RoSer Q. Evans, paSe 9


          165 9. W, 504.. So.lt has been held that an lnjunotian will
      i
          be nanted in behalf of the state to abate a pub110 nuisance
          which Is an Injury to the property or civil rights of. the pub-
          lic 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 de-
          fining  the act Bought to be enjoined as offense and prescTib-
          lng fine or Imprprisorxxmt therefor.   Hetrich v. Stnte, (Clv.
          App.) 87 3. W. (2d) 887. But where sstatute        does not au-
          thorize injunction to abate a public nuisance, the State must
          plead and prove that the business as conducted HCSa 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 nui-
           sance por so and prohibited by tho earzbline statutes.   The ap-
          pollate  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.   Mur h. v. tJ.S,,
          272 u. 3. 630, 47 9. C. R, 218, 71 L. Ed, 446,
                     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 in-
          jury has been inflicted.   Rcalth, 39 C.J.S. 861, b 36, notes
          37, 38; Health, 29 C. J. ]?.258,   n, 87; liuisanccs, 49 C. J,
          759, n, -j-p;   802, n. 41. 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 con-
          viction 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,      “We think
it clear,” said the court, “that the Legislature in adopting
the Act did not attempt or intend to Interfere with the ex-
erolse by the district     court of Its general equity jurisdic-
tion 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 pro-
positions are wI.thout merit and are overruled.’         The Cardwell-
Austin 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 affect-
                     ed 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,~l-
                     vate, not public, rlghto.   I&, Justice Crlte, speaking for
                     the court, at page 274, naidt
                                 “Our courte of equity, ns such, have no juz-
                          lsdlctlon   to antartaln sulLts to enjoin the coz-
                          mlaslon of acts mme1y because such acts comtl-
                          t&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 viola-
                          tion 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 nui-
                          sance under tho oomon law, ”
                     And tho court mast be satisfied  that ths antlclp3tcd  Injury
                     1s lminent
                     1 33, 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, pro-
vided the rights of the public at large are endangered of be-
ing 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 aecei-
     earliy foliow from the facts that a comon ga;am-
     ing house is a public nuisance, and that court3
     of equity have jwiodlction   by injuaotlon to abate
     a nuisance, that such jurlsdictlon  ~111 be exer-




     tioil to rest;tyaln the coiltinumce-of    on
     trade, the abntcmont of a nuiswcc,        or the prose-
     oution 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 Isrepar-
     able mischief snd obvieto damgas for which no
     a~dequate rwrody exists at law.      . . . (citing flu-
     thoritles)    It 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?tyOP CfVfl l'i$htS.                In C?XtendilI~
     Such prOtcCtlOn, it may prewnt a Crin~; but, as
     no one hg & Fight to comLt or4me, no olle ohould
     be hG&Pdto CoDplain that he is reatzalnod from
     lts comissim,          r!hcn su.ch roetrair,t hpa boon ex-
     ercised in the jurisdiction             of a court for the
     pwposs of preventing hln from lrrep2rabI.y lnjur-
      lng anothor In his proportg or clvll ri&ts.                      But
     courts of cqulty never lntcrfcro                for the purpose
     of acts constituting          crino bocouoe they fm crti-
      1~1, for they have nothing to do w5.th trim as
      SUCL     Thclr interposition         is solely fop the pi*o-
     tection of proqerty 02 oivlX rl$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 princi-
      ple 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 Con-
      sumrsl Co., 19 Eng. Law & 6~. 644. Thwefore,
                          throwh her ~rol;e_r_oPf~~er~;~~~.~:s
                              rjT0. cous‘t-ol:.d-d'-A-
                                                  Q(li~fl;Vto ,$:j:j,f‘g-=~
                .---          she Fz3t &IV t!lnt nl?sh i~uia~~zcc
      13 an in$i?,ry to the ~ZZ~iZGZiXliS~i!~~t3                     0.T
     ---y~Q-ggjg~
      the                           ~_ ,q-----------
                                 'TTf3      it 3,s her i;ur;:r,s       the
     aJql.t of t&3 puarc,          co Jy~r~*         l , * F ;1   r ,:;p EZi3

     OUT}



           In I!ebbln v,>Teir YoP&, 291 U.. 9. 502, 54 9. Ct. 505,
507, 78 L. EdTi%?jpy     iii{.     146y, lfti. Just fee Roberts pert-
inent ly observed;
Honorable Roger Q, Evans, page 14


              “The Constitutiod does not aecura to any one
       liberty to conduct hFs business in such Sashion as
       to inflict   lnjury~upon tne publfc at large, or up-
       on 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 noc-
       essitg, and only publLc necessity can justify     its
       exercise.    The result OS its oporat1on is A2Itur-
       slly,   in most instances, the abridfgmnt OS pri-
       vat0 3?tg11ts. Private rights OFO never to be sac-
       rificod   to a greater extent thah necessary.   Thwe-
       Sort, the rgturn for their sacrifice    through the
       e,xerclse OS the police povcr should be the attain-
       ment 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 PO-
       lloe paver cannot be Lnvokod for the abridg;zant
       of a particu3nr use of prtvute property, unless
       such use reasonably endangers or threatens the pub-
       lic 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 of a stream the title to the bed of which
    is in the riparian 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 pol-
    lution of a stream In such a manner aa to CoAotitutc a pub-
    310 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 never-
         theless 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 in-
    volved, 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.     State V, RetGrk iiil.2~ Cs; (IZcv Ycrscy,
    1935) 179 iitl, 116.   In that case the ~0uZ~~r.t pago 121)

              “This principle should not be extended be-
         yond 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. Uh-
           rl& 14 MO. App. 413,     sets forth the grounds Par
           equitable interposition    in cases of public nui-
           mncea : ‘“(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 jurisdic-
           tloti Iti these three classe~s of cases is an excep-
           tion to the rule *** that a Court of equity has
           no jurisdiction   in matters of crime.’ In Hutch-
           inson 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 affect-
           ed with a public interest)     and it is the settled
           rule in this state that equity m,oyIntervene to
           reotrsin a course of oonduat, in respect of a
           business OS this character, vhlch tonda to affect
           the public lntcrest injuriously.      . . . (citing au-
           thoritics)    Where the property ri&ta of many
           citierna are involved, it is proper for the gov-
           ernment 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 pub-
      lic nuianncei
                The sale OS Caftla such Rs you describe for slaught-
      or to be sold as food for huean consumption certainly constl-
      tutes a menace to the health of the citizens.   Such a business




---
      Honorable Roger Q. Evans, page 17


      Is,    our opinion, a public nulsancc, ma, ~8 gou state, AA-
             in
      less enjoined from being sold for huma consumption would
      cause BA epidcnic of disease.
                  The State Board of Bealth and the State Health Of-
       ficer 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 con-
      cerned, rellef  OS the character contemplated has not been
      granted or denied upon the exact facts disclosed by your let-
      ter; 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, how-
      ever, 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 2GWSof Texas means that
       the state would be cCmppllk3dto wit until the hcolth wmce,
       dincorafort, ill-health  and perhaps d.eath, Is actually pwscnt,
i
       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
i      likely to occur under the facts and clrcumtances      applicable
       thereto.
1
I                 Trusting   the foregoing   fully   answers your inquiries,
1
I.                                                   very truly yotws
                                               A,d---
                                                  TORBIZX
                                                        GEIkRALOPITEY&S


                                                              David Kuntch
                                                                  Assistcint
