
    W. H. Martin et al. v. Railroad Commission of Texas et al.
    No. 7287.
    Decided June 16, 1937.
    Rehearing overruled July 28, 1937.
    (106 S. W., 2d Series, 653.)
    
      
      Yelderman & Yelderman, of Austin, for plaintiff in error.
    A legitimate business, not inherently evil in itself, can not be prohibited because others do not conduct their business in a manner to the best interest of the public welfare and safety, or because some abuses and evils have arisen because of the manner in which some persons have operated such business. Sam’s Loan Office v. City of Beaumont, 49 S. W. (2d) 1089; Ex parte Martin, 74 S. W. (2d) 1017; Bruhl v. State, 111 Texas Crim. Rep. 233, 13 S. W. (2d) 93.
    
      William McCraw, Attorney General, and Curtis E. Hill, Assistant Attorney General, for defendants in error.
   Mr. Justice Critz

delivered the opinion of the Court.

This suit was filed in the district court of Travis County, Texas, by W. H. Martin and a number of other individuals, who are operating travel bureaus in Texas, against the Railroad Commission of Texas and its members and against certain other officers of this State to enjoin the institution and prosecution of any criminal prosecutions under Senate Bill No. 265, Chapter 325, page 746 et seq., Acts Regular Session, 44th Legislature. Trial in the district court was before the court without the intervention of a jury, and the injunction denied, but the temporary restraining order theretofore granted against the Railroad Commission et al. was continued in force pending appeal. Martin et al. appealed to the Court of Civil Appeals at Austin, which court affirmed the judgment of the district court and dissolved the restraining order issued by such court. Martin et al. made application to this Court for writ of error, and the case is now pending on such application. Also, pending disposition of such application in this Court, we entered an order prohibiting the Railroad Commission et al. from filing further prosecutions against Martin et al., pending further orders of this Court.

In the case of Ex parte Talkington, 132 Texas Crim. Rep. 361, 104 S. W. (2d) 495, the Court of Criminal Appeals of this State, our court of last resort in criminal cases, adjudged that the above Act was in contravention of Section 19 of Article 1 of our State Constitution, and was therefore null and void. It is certainly no offense to violate a void act. It follows that Martin et al. are entitled to the injunctive relief here sought.

It appears from the record before us that the defendants in error have filed in this Court an answer to the application for the writ of error, and in such answer have not expressly reserved the right to be heard in open court. Such a record gives this Court the right, at its discretion, to grant the writ of error and to proceed to final disposition of the case. Article 1744, R. C. S. of Texas, 1925; Supreme Court Rule 5; Electric Exp. & Bag. Co. v. Morris Ablon, 110 Texas 235, 218 S. W. 1030. This we now do.

It is ordered that the writ of error applied for by W. H. Martin et al. be, and the same is, hereby granted. It is further ordered that the judgments of the district court and of the Court of Civil Appeals are both reversed, and judgment is here rendered awarding the plaintiffs in error the injunctive relief sought by them.

Opinion delivered June 16, 1937.

Rehearing overruled July 28, 1937.  