56 So. 792 | Miss. | 1911
delivered the opinion of the court.
By an act of the legislature of 1910 it was provided:
“That any person who shall sell or give away any vinous or spirituous liquors unlawfully, or who shall allow the same to be sold or given away at his place of business, for any purpose whatever, shall be subject to pay to the state, county, city, town or village, where the offense is committed, each, the sum of five hundred dollars ; and the state, county, city, town or village, or any taxpayer of the state, county, city, town or village in the name thereof, of the state revenue agent, or any sheriff within the county acting for them, may sue for and' recover civilly, either jointly or separately, each, said sum of five hundred dollars; and such civil suit may be commenced by attachment without bond. ■
“Sec. 2. The chancery court shall have concurrent jurisdiction with courts of law to entertain suits under the preceding section for the enforcement thereof instituted by the state, county, or any city, town, or village, or by any taxpayer thereof, in the name of the state, county, city, town or village, or by the state revenue agent, or by any sheriff within his county acting for them, and the chancery court shall have authority to suppress as a nuisance any place of business where the preceding section is violated, and by proper judgments and orders, punish and restrain the violators thereof.” See Laws 1910, p. 124, c. 134.
The first of the above sections is not new to the statutes of this state. It is practically the same as was section 1744, Code 1906 (section 1590, Code 1892). The difference between the Code sections and section 1 of the legislative act of 1910 consists only in the fact, that the act of 1910 gives persons the right to sue for the
Some time in December, 1910, the state of Mississippi, on relation of the attorney general, commenced a suit against Marion Marshall, alleging that Marshall had violated the act, and seeking to recover the penalty prescribed for its violation. The suit was instituted in the chancery court, and the bill charged that Marshall was conducting a place of business in the city of Vicksburg known as a “soft drink establishment.” It further alleges that, while the maximum privilege license imposed by the city for the privilege of selling soft drinks is two dollars and fifty cents, yet it has collected from Marion Marshall the sum of three hundred and fifty dollars, and, acting under this so-call'ed privilege license, Marion Marshall is conducting a pretended “soft drink” place, fully equipped as a bar, and with all the fixtures and paraphernalia of a regular saloon; that Marion Marshall has provided himself in this place with a United States government revenue license which authorizes him to sell vinous and spirituous liquors. The bill further charges that, while Marshall pretends to be conducting a “soft drink” place, it is only for the purpose of giving some name to his business; his real business being the unlawful retailing of vinous and spirituous liquors. It is further charged that on the 2d day of November, 1910, and at numerous other times before an.d after, Marshall sold, and permitted to be given away at his place of business, vinous and spirituous liquors contrary to law, and that he continues daily to sell same as his regular business. It is then alleged that, on account of these violations of the liquor laws, Marshall became liable to pay both to the state of Miss
We may pause in the statement of this case at this point to say that, of course, the chancery court cannot inflict any punishment under the criminal laws of the state. The Constitution of the state forbids this, and the law under which this proceeding is instituted does not attempt to confer on the chancery court any such power. But, if the bill of complaint has stated a good •cause of action, it is not made bad because the party filing same seeks greater relief than is allowable. He is still entitled to have all the relief to which he shows a right, and which is in whole or in part appropriate to the prayer. We may therefore ignore this last feature of the prayer.
The bill of complaint was not supported by affidavit of any kind, but a temporary injunction was granted thereon, and an attachment issued, and levied on the /goods of Marshall. The issuance of an injunction upon
The bill of complaint was demurred to on many grounds, but we shall not set out each ground relied on, since many are mere duplicates, and other grounds assigned are not pressed on this appeal; but, if they were, they would not be worthy of any fuller discussion than we shall give them in this opinion. On the hearing the trial court sustained the demurrer to the extent of dismissing the attachment, and releasing all property levied on thereunder. The temporary injunction was modified so as only to prohibit Marshall from conducting his business in so far as it consisted in selling or giving away vinous or spirituous liquors in violation of law. Leave of the court having first been obtained, the state prosecutes a direct appeal and Marshall a cross-appeal for the purpose of settling the principles of the case.
In the discussion of this case, we shall confine ourselves to such of the objections as are urged by counsel for cross-appellant as is necessitated by the view that we take of- this case. Little need be said as to the direct appeal prosecuted by the state, since the state’s contention under our view is correct. All the questions in this case needing discussion arise under the first two assignments of error found in cross-appellant’s brief in so far as their contentions are concerned. Those two assignments of error are: First. That the act is unconstitutional because it is beyond the power of the legislature to alter or change the jurisdiction of the chancery court as fixed by section 159 et seq. of the Constitution of 1890 of the state. Second. It is claimed that the act of 1910 violates the due process clause of the Constitution of the state and the United States, th»
Chapter 134, p. 124, acts 1910, not only provides that any person selling or giving away intoxicating liquors in violation of law shall be subject to certain penalties, but it further declares that such sales shall constitute a nuisance. After declaring such sales to be a nuisance, the act confers on the chancery court concurrent jurisdiction
The right to enjoin a public nuisance is no new subject of equitable jurisdiction. 4 Pomeroy, section 1349. By the act the unlawful sale or gift of intoxicating liquors is declared to be such, and it was clearly within the constitutional power of the legislature to so declare. Because a person may be prosecuted criminally for maintaining or conducting a public nuisance, this fact cannot prevent the right of an equity court to enjoin, and particularly when the law expressly gives that right. Statutes of- the character under review are not new within this or other states. They are of the same character of statutes as are those which confer upon courts of equity the power to enjoin the keeping of a bawdy-house, keeping a gambling house, or gambling devices. The selling or giving away intoxicating liquors in violation of law is a similar nuisance. If one of these evils
Since the chancery court undoubtedly has jurisdiction for one purpose, under well-settled rules of equity jurisprudence, it necessarily follows under equally well-settled principles of equity that, when the court of equity assumes jurisdiction for one purpose, it acquires it for all. It may not only abate the nuisance, but it may also render judgment for the statutory penalties. 1 Pomeroy, section 237. Section 159 of the Constitution is broadly declaratory of the rule above stated. The section declares that the chancery court ‘ ‘ shall have full jurisdiction” in all matters of equity. In interpreting the meaning of this section of the Constitution, this court said in the case of Bank v. Duncan, 52 Miss. 740, that “the word ‘full’ — ‘full jurisdiction’ — implies that nothing is reserved. Whatever is a matter of equity as to that the power to adjudge is full. ... It indicates that, where the court takes hold of a subject, it ought to dispose of it fully and finally. That suggests an appropriate field for legislation, within constitutional limits. If the subject of litigation be a ‘matter of equity,’ why should not the legislature give to the court cognizance over all incidental and dependent matters, so as to give to the respective litigants the full benefit of their rights, and enable the court to pronounce finally?” See, also, Georgia Pacific Ry. Co. v. Brooks, 66 Miss. 583, 6 South. 467; Brunini v. Pera, 54 Miss. 649; Buie v. Pollock, 55 Miss. 309. In the case of Brunini v. Pera, supra, this court in reviewing the case of Bank v. Duncan, 52 Miss. said: “The spirit of those decisions is that there is nothing in the Constitution which prohibits the legisla
But it is contended that courts of equity will refuse to enforce penalties. But courts of equity do not, and cannot, refuse to enforce penalties created by statute. The oft-quoted maxim that a court of equity will refuse to enforce a penalty has no application to any but penalties imposed by private contract. In the case of State v. Hall, 70 Miss. 678, 13 South. 39, this court held that the equity court would in proper cases enforce statutory penalties. In that case the court said: “Equally untenable is the position assumed by counsel for appellees, that equity will refuse its aid in the enforcement of penalties. The unsoundness of this view lies in the failure to mark the distinction between the statutory penalties and penalties created by contract between private persons. The latter courts of equity refuse to enforce, but the former, the expression of the will of the lawmaking power, the courts of equity will not undertake to disregard and nullify by refusing their aid in proper cases. 1 Pom. Eq. Juris., section 458; Story, Eq. Juris., section 1326; State v. McBride, 76 Ala. 51; Clark v. Barnard. 108 U. S. 436, 2 Sup. Ct. 878, 27 L. Ed. 780. Having acquired jurisdiction, the court below should have given full relief by following the law and enforcing the penalty. Legal remedies are constantly being worked out in courts of equity in causes where jurisdiction is acquired on some recognized ground of equitable interference.” The same principle is declared in the case of Lumber Yard v. Railroad Co., 96 Miss. 116, 50 South. 445. But it is con
The statute authorizes no fine or imprisonment. It merely provides that when a person shall violate its provisions, in addition to having* his place of business suppressed as a nuisance,, he shall be liable to pay to the state, county, etc.,, a penalty, recoverable in a suit for same, and giving the state, county, etc., the right of attachment. The fact that the suit may be commenced by attachment and seizure does not make of the proceeding a criminal one. Many civil suits are commenced in that way. The state is without limit as to its right to provide the procedure by which its own, or any other, debt may be collected, no matter how that debt may be incurred. The only limit on its authority is only that such procedure shall be adopted as will not take property without due process of law. The procedure authorized by this statute gives full opportunity for a hearing*, and does not .violate the due process clause of the Constitution of the state or United States.
In the case of Grenada Lumber Co. v. State, 54 South. 8, in an admirable opinion delivered by Judge Anderson, this court held that the term “civil” comprehended “every conceivable cause of action, whether legal or equitable, except such as are ‘criminal’ in, the usual sense; that is, where the judgment against the defendant may be a fine or imprisonment or both, and, in case of fine alone, imprisonment until payment. ’ ’ The court further held in the same case that, although a suit was in fact a suit to punish an offense against the public justice, yet “it is a ‘civil cause’ nevertheless,- and it is competent for the legislature to provide for the punishment of such offenses by either criminal or civil proceedings, or both. ’ ’ The act which the court was construing in the above case was the anti-trust laws of the state, which law imposed penalties on the violators thereof of not less than
But it is contended that the right of trial by jury is not granted by this act, but is denied if it be held that the chancery court has jurisdiction in this cause. This con
It is further argued that the act -violates section 23 of the Constitution of the state. That section provides that “the people shall be secure in their persons, houses, and possessions, from- unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized.” No question in this case involves section 23 of the Constitution. There is no search or seizure within the meaning of the above section. There is a seizure, it is true, but it is a seizure of property under a civil attachment for the purpose of paying a debt. The seizure in this case has no more application to the constitutional section under discussion than the seizure of any other civil attachment proceeding. The statute under consideration has no aspect towards an attempt to secure property by search, nor to secure evidence in aid of any contemplated criminal prosecution. It merely affords a remedy by attachment, as to that feature of it, for collecting a debt.
The right to attach for a violation of this statute has been upheld by this court in Revenue Agent v. Johnson, 72 Miss. 896, 17 South. 682; Adams v. Evans, 19 South. 834. The trial court was correct in retaining the injunction so as to prohibit Marion Marshall from selling or giving away vinous or spirituous liquors in violation of law, but erred in dismissing the attachment. The attachment should have been retained and the cause heard as to the right of the state to subject the property levied on to the suit for the penalties.
It follows that this case is reversed on direct appeal, and affirmed on cross-appeal.
Reversed on direct appeal.
Affirmed on cross-appeal.