Wilkinson v. State Ex Rel. MorganWilkinson v. State Ex Rel. Morgan
All places maintained or resorted to for the purpose of gaming and all places where gaming tables or other gaming devices are kept for the purpose of permitting persons to game thereon or therewith are declared to be common nuisances and may be abated by writ of injunction issued out of a сourt upon a complaint filed in the name of the state by the attorney general or any district attorney whose duty requires him to prosecute criminal cases in behalf of the state in the county wherein the nuisance is maintained, . . . .
The State alleged that the conducting of bingo games by defendants constituted “gaming” within the purview of the statute. Defendant Gateway Malls, Inc., is the owner of the property on which the bingo games were played. The other defendants are thе alleged operators of the games.
Defendants raised a defense of discriminatory enforcement, claiming other bingo operations and additional gambling activities were taking place with impunity in Jefferson County and throughout the state. They also filed counterclaims to enjoin the state from an alleged discriminatory enforcement
Appealing the injunction order, defendants raise several issues, primarily a contention of selective enforcement of
What effect does this express repeal of
It is the general rule in Alabama that statutes are considered prospective unless their language shows that they were intended tо be retrospective. Baker v. Baxley, 348 So.2d 468 (Ala. 1977). In Saad v. Cline, 51 Ala. App. 668, 670, 288 So.2d 731 (1974), the Court of Civil Appeals said:
There can be no question that the effect of the repeal of a statute or part thereof is to destroy the effectiveness of the repealed act in futuro and to divest the right to procеed under the statute, which, except as to proceedings past and closed, is considered as if it had never existed. [Emphasis added.]
Thus, a case which is tried and decided prior to the effective date of a code which repeals a former section on which that case relied is not affected by the repeal. Payne v. City of Birmingham, 30 Ala. App. 559, 10 So.2d 36 (1942).
However, unlike the “proceedings past and closed” referred to in Saad, the injunction is a continuing order over which a court, sitting in equity, maintains jurisdiction for the life of the decree. This Court recognized this peculiar nature of the injunction decree in Ex Parte Myers, 246 Ala. 460, 21 So.2d 113 (1945). There, this Court quoted, with approval, the California case, Sontag Chain Stores Co. v. Superior Court, 18 Cal.2d 92, 113 P.2d 689, 690 (1941), stating:
[T]he decree, although purporting on its face to be permanent, is in essence of an executory or continuing nature, creating no right but merely assuming to protect a right from unlawful and injurious interference. Such a decree, it has uniformly been held, is always subject, upon proper showing, to modification or dissolution by the court which rendered it. The court‘s power in this respect is an inherent one.
246 Ala. at 463, 21 So.2d 113.
Thus, the life of the injunction, by its very nature, is subject to pertinent events that occur subsequent to the decree. In the words of the Myers Court, “The injunction relates to matters of future continuous operatiоn.” 246 Ala. at 464, 21 So.2d 113.
By this same reasoning, the saving clauses cited by appellees,
The rule allowing the modification or dissolution of injunctions is recognized in most jurisdictions, viz.:
Where the grounds and reasons for which the injunction was granted no longer exist, by reason of changed conditions, it may be necessary to alter the decree to adapt it to such changed conditions, or to set it aside altogether, as where there is a change in the controlling facts on which the injunction rests, or where the applicable law, common or statutory, has in the meantime been changed, modified, or extended. Such change in the law does not deprive the complainant of any vested right in the injunction, because no such vested right exists.
42 Am.Jur.2d, Injunctions, § 334 (1969) (emphasis added) (footnotes omitted).
We have recognized in Alabama that a change in lаw subsequent to an injunction decree and pending appeal may work a dissolution of the decree. Reynolds v. State, 279 Ala. 331, 185 So.2d 123 (1966). In Reynolds, the circuit court issued an injunction based on a finding that the Voting Rights Act of 1965 was unconstitutional. The order restrained a Judge of Probatе from fulfilling the requirements of this Act. Pending appeal, the United States Supreme Court held the Act constitutional. Finding itself compelled to find the injunction dissolved, the Reynolds Court reasoned:
The injunction here is issued on the premise that the federal examiner provisions are unconstitutional and void. The Supreme Court of the United States holds to the contrary. The premise on which the injunction was issued is thus destroyed by the federal court.
279 Ala. at 333, 185 So.2d 123 (emphasis added).
Although Alabama has not addressed a change in law worked by legislative action in this context, other jurisdictions have found that an injunction based on a statute later repealed or changed to be subject to modification or dissolution. See cases collected in Annot. 136 A.L.R. 765 (1942).
The United States Supreme Court had an opportunity to address this question in System Federation No. 91, Railway Employes’ Department, AFL-CIO v. Wright, 364 U.S. 642, 81 S.Ct. 368, 5 L.Ed.2d 349 (1960). The District Court had enjoined a railroad and some unions from discriminating against nonunion employees. Subsequently, the Railway Labor Act was amended to pеrmit, under certain circumstances, a union shop. The Supreme Court held that the unions were entitled to a modification of the injunction decree, reasoning:
The source of the power to modify is of course the fact that an injunсtion often requires continuing supervision by the issuing court and always a continuing willingness to apply its powers and processes on behalf of the party who obtained that equitable relief. . . . [T]he court cannot be required to disregard significаnt changes in law or facts if it is “satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong.”
364 U.S. at 648, 81 S.Ct. at 371.
An Iowa case considers a situation similar to the case at bar. Johnston v. Kirkville Independent School Dist., 240 Iowa 1328, 39 N.W.2d 287 (1949). There, taxpayers successfully enjoined thе local school district from exceeding the expenditure limits for student transportation set by statute. Pending an appeal of the injunction, the pertinent statute was repealed. The plaintiffs’ right to injunction was claimed on the basis of the repealed statute; the decree of injunction also relied on the statute. Finding the question involved to have become moot, the court stated: “It seems further to be conceded that this change in the law has in effect wоrked a dissolution of the injunction or in any event that defendants are no longer bound thereby.” 240 Iowa at 1329, 39 N.W.2d at 287. The court added that, should the plaintiffs attempt to enforce the injunction notwithstanding the change in the applicable law, the trial court might and should dissolve the injunction.
Appellees contend that the repeal of
The complaint in the instant case relies solely on the repealed statute for its cause of action. Likewise, the final decree of permanent injunction relies solely on
Appellees also argue that even if
Our deсisions recognize the general rule that courts of equity have no jurisdiction to enjoin the commission of offenses against the criminal laws of the State. Pike County Dispensary v. Mayor, etc., Brundidge, 130 Ala. 193, 30 So. 451.
On the other hand, if the facts presented disclose the need of equity intervention for the protеction of rights cognizable by equity, then injunctive relief may be granted, though as an incident thereto the writ may also restrain the commission of a crime.
Try-Me Bottling Co., 235 Ala. at 210, 178 So. 231 (Emphasis added).
However, that authority has not been established in the instant case. For instance, there аre no findings here, as made in Try-Me, that the mere prosecution for a misdemeanor would not give complete relief. The Try-Me court was also concerned with the detrimental effect of the lottery scheme on children. Children were fоund to be rooting about in trash piles to find bottle caps with lucky numbers. Any such findings in the instant case were pretermitted by complete reliance on
To hold appellants to a continuing order enjoining their bingo activities in light of the clear removal of the sole basis of that order, would turn the decree into “an instrument of wrong.” System Federation No. 91. The repeal of
The learned trial judge has not had an opportunity to address the issue of statutory repeal because jurisdiction of this cause has been vested in this Court. Due to the unusual posture of this case, we have nevertheless addressed this issue because to do otherwisе would only further delay the parties and waste judicial time. We think it proper under the circumstances to express our views and remand the cause so that the trial judge may dissolve the injunction.
We further note that, pending this appeal, bingo was legalized with some reservations in Jefferson County by Amendment 386 to the Constitution of Alabama, adopted by the electorate of this State on September 2, 1980. The amendment contains several criteria to be met by would-be bingo oрerators, such as the value of prizes awarded and the age of participants, before the operation is considered legal. Although the instant injunction order is due to be dissolved for the reasons previously discussed, we do not doubt that the parties
REMANDED WITH INSTRUCTIONS.
TORBERT, C.J., and MADDOX, FAULKNER and EM