177 So. 345 | Ala. | 1937
For the abatement of a liquor nuisance, the circuit solicitor filed proceedings in the equity court and obtained preliminary injunction against defendant J. H. Harvell. The bill also sought "padlock proceedings" against the premises, and the chancellor issued such an order as part of a preliminary injunction, and declined to permit defendant to reopen his premises for lawful purposes upon execution of a bond, a course pursued in the decree here reviewed in Joiner v. State,
But petitioner denies any unlawful use of the premises, and insists that the feature of the order for preliminary injunction padlocking his premises prevents its use for lawful purposes and works a confiscation thereof without notice to him, citing Brooks v. State,
We adhere to the rule of Joiner v. State and Ex parte Hill, supra, giving application of the provisions of sections 9290 and 9291, Code, to cases of abatement of liquor nuisances. But here the use of lawful, as distinguished from contraband, property is involved, and these statutes and decisions contemplate a resort to such an order only after notice and hearing being given defendant, and thus obviate any constitutional question as to due process of law or prevent any unjust results. 12 Corpus Juris 1224; 46 Corpus Juris 797; Fulton v. State,
Recognizing this principle, an order was here entered by Mr. Justice Bouldin permitting the execution of a bond and a reopening of the property pending a hearing, which was in conformity with the relief petitioner sought before the chancellor.
We are therefore persuaded that the padlock order issued without notice or a hearing was ill advised. That petitioner has pursued the appropriate remedy does not appear to be here questioned. Ex parte Tulley,
The writ will accordingly be here awarded, annulling so much of the preliminary order for injunction as relates to the matter of padlocking defendant's premises.
Certiorari awarded.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur. *65
