Opinion
No. 36591.
December 8, 1947. Suggestion of Error Overruled, February 9, 1948.
1. INTOXICATING LIQUORS.
Statute providing that any place where intoxicating liquors are found, kept, or possessed shall be deemed to be a common nuisance, and may be abated by writ of injunction issued out of court of equity on bill filed in name of State, is valid (Code 1942, secs. 1278, 2646).
2. INTOXICATING LIQUORS.
Testimony, establishing that defendant was found in possession of substantial quantity of whisky which he was seen to hide about foot and half outside of fence which inclosed his home place, authorized finding that defendant had violated injunction enjoining him from selling intoxicating liquor at place of his home, which had theretofore been adjudged a nuisance, so as to subject him to punishment for contempt (Code 1942, secs. 1276, 2646).
ON SUGGESTION OF ERROR. (In Banc. February 9, 1948.) [33 So.2d 786. No. 36591.]1. INTOXICATING LIQUORS.
In contempt proceeding for violation of injunction abating liquor nuisance, where opinion of chancellor, made part of record, recited that court found that whisky was found near premises of defendant and was in his possession, decree reciting that defendant had possession of intoxicating liquors was not objectionable on ground that defendant was convicted for a general violation of law rather than as regards nuisance feature of injunction.
2. INTOXICATING LIQUORS.
In contempt proceeding for violation of injunction abating liquor nuisance, even if chancellor's opinion reciting that court found from evidence that whisky was found near premises of defendant and was in his possession had not so recited or had not been in record, court would, in support of validity of decree, be obliged to consider that chancellor had so found, since he was acting upon the entire record before him.
APPEAL from the chancery court of Lee county. HON. WM. H. INZER, Chancellor.
Adams Long, of Tupelo, for appellant.
Neither Section 2646 of the Code of 1942 nor any other code section gives a court of equity authority to enjoin against all crimes of a class as was done in the decree of April 15, 1946, and the court was without authority to issue said decree.
Castleman v. State, 94 Miss. 609, 47 So. 647; State ex rel. Atty. Gen. v. Marshall, 100 Miss. 626, 56 So. 792; Stead v. Foster, 255 Ill. 468, 99 N.E. 680; State of Montana ex rel. Stewart v. District Court of the Eighteenth Judicial District in and for Hill County et al., 77 Mont. 361, 251 P. 137, 49 A.L.R. 627, note 635; 28 Am. Jur. 336-345, Secs. 148-150, 153; 30 Am. Jur. 501, Sec. 468, p. 513, Sec. 496; 43 C.J.S. 760, Secs. 150-153, 155.
As enforced by the court below in the decree of April 15, 1946, Section 2646 is violative of Sections 159, 160 and 161 of Article 6 and Sections 14, 28 and 31 of Article 3 of the Mississippi Constitution and Section 14 of the Amendment to the Constitution of the United States, in that it enjoins the defendant there from "violating the prohibition laws of the State of Mississippi for a period of two years," irrespective of their connection with the nuisance complained of, and puts this appellant under equity jurisdiction for all crimes against the liquor law which he may commit.
State ex rel. Atty. Gen. v. Marshall, supra; Grenada Lumber Co. v. State, 98 Miss. 536, 54 So. 8; Mobile O.R. Co. v. State, 51 Miss. 137; Carleton v. Rugg, 149 Mass. 550, 14 Am. St. Rep. 446; Brandreth v. Lance, 8 Paige 24, 34 Am. Dec. 368; Fleming v. Newton, 1 H.L. Cas. 363, 576; Boston Diatite Co. v. Florence Mfg. Co., 114 Mass. 69, 19 Am. Rep. 310.
Where property rights are concerned a person may waive the constitutionality of the statute under which the suit arises, but in prosecutions for crime or in any proceedings where the liberty of a person is to be taken away from him he cannot waive his rights to the extent to confer jurisdiction on a court totally without it otherwise and with no statutory authority for the action whatever. In all criminal trials the constitutionality of the statute authorizing the prosecution may be questioned at any stage of the proceedings on the principle that an unconstitutional law is wholly void and has no effect.
Redding v. State, 184 Miss. 371, 185 So. 560; 11 Am. Jur. 772, Sec. 125.
A person cannot waive or agree to a void judgment whereby his liberty is taken away from him and whereby he is placed in confinement.
Williams v. State, 179 Miss. 419, 174 So. 581; Durr v. State, 175 Miss. 797, 168 So. 65; Brasham v. State, 140 Miss. 712, 106 So. 280; Ivy v. State, 141 Miss. 877, 106 So. 111; 24 C.J.S. 307, Sec. 1675.
Where the Supreme Court can from the record see that the decree appealed from is absolutely void and the Court totally without authority to render same, the defendant cannot be estopped from appealing from same and cannot acquiesce in same and can raise the question for the first time in the Supreme Court.
Dulion v. Folkes, 153 Miss. 91, 120 So. 437; Singletary v. Ginn, 153 Miss. 700, 121 So. 820; Herrington v. Stimpson Computing Scale Co., 159 Miss. 416, 131 So. 878; State v. Diamond, 202 P. 988, 20 A.L.R. 1527.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
The appellant was not tried by the chancellor on a charge of violating the laws of the State as such, but tried for contempt of court, in violating the injunction of the court on the 15th day of April, 1946, when the appellant was enjoined from keeping or possessing or selling liquor for a period of two years. The Chancellor found as a fact at the conclusion of the evidence that the appellant had violated the injunction and inflicted the punishment authorized by law for contempt of court.
The chancery court is authorized by Section 1277 of the Code of 1942 to punish for contempt of court. By Section 1278, Code of 1942, the chancery court or the chancellor in vacation or judge granting the writ shall have the power to punish any person for a breach of injunction or any other order, decree or process of the court by a fine or imprisonment or both. Under Section 1278, Code of 1942, the court is given express power to fine or imprison or both for a contempt of court.
The chancery court, while not authorized to inflict punishment under criminal law as such, has full jurisdiction and the power to grant full relief here.
State ex rel. Atty. Gen. v. Marshall, 100 Miss. 626, 56 So. 792, Ann. Cas. 1914A, 484; Code of 1942, Secs. 1062, 2639, 2640, 2646, 2664, 2665.
An injunction must be obeyed unless it is absolutely void.
Equitable Life Ins. Society v. Gex's Estate, 184 Miss. 577, 186 So. 659.
This appeal is from a decree adjudging appellant in contempt for violation of an injunction issued by the chancellor under Code 1942, Section 2646. This statute provides that "Any . . . place . . . where liquors are found, kept or possessed . . . shall be deemed to be a common nuisance and may be abated by writ of injunction issued out of a court of equity upon a bill filed in the name of the State by . . . any district attorney . . . in the county where the nuisance is maintained . . . Upon the abatement of any such place as a nuisance the person found to be the possessor or owner of such liquor may be required by the court to enter into a good and sufficient bond . . . to be conditioned that the obligor therein will not violate any of the prohibition laws of the State of Mississippi for a period not to exceed two years from the date thereof . . ." This section may appropriately be taken in connection with Code 1942, Section 1278, which is declaratory of the power of the chancery court or chancellor in vacation to punish any person for violation of an injunction as for a contempt.
On April 15, 1946, decree was entered by agreement, upon proper petition enjoining appellant from selling or having in his possession liquor at the place of his home as therein described. The decree contained other provisions not here relevant. The petition prayed that said place be declared a nuisance and the defendant be enjoined from its further maintenance as such. Bond was not required by the decree.
On the 5th day of November 1946, a petition was filed for citation against appellant, setting out his violation of the injunction and praying that he be held and punished for contempt. The testimony was sufficient to establish that appellant was found in possession of a substantial quantity of whiskey which he was seen to hide about a foot and a half outside the fence which encloses his home place. Appellant told the officers who made the search that he was in the `general bootlegging' business.
We find that the statute, Section 2646, is a constitutional exercise of legislative prerogative, at least insofar as it authorizes the abatement of any place as a nuisance and the issuance of injunction against its maintenance. We need not adjudge the statute save as applicable to the facts here present. We further find that the chancellor was justified in finding a violation of the injunction, inasmuch as the liquors were substantially in possession of the appellant at such place.
There is not here involved the question of the right of the chancery court to enjoin against the violation of our criminal statutes, but the punishment imposed is sustained as a violation of the court's injunction against the maintenance of a place which had theretofore been adjudged a nuisance. Such views are in accord with State v. Marshall, 100 Miss. 626, 56 So. 792, Ann. Cas. 1914A, 434.
Affirmed.
ON SUGGESTION OF ERROR.
Appellant filed a suggestion of error in which he urges that even if the evidence showed that appellant was in possession of intoxicating liquor so near to his home place as to be within that which was substantially a part thereof, yet the chancellor by his decree did not adjudge that appellant had the liquor in possession in the manner as above stated but the decree recited only that "the defendant wilfully, unlawfully and in violation of the order of this Court heretofore made on the 15th day of April, 1946, did have in possession intoxicating liquors" — without stating where. In brief, appellant urges that he was convicted for a general violation of the law rather than as regards the nuisance feature of the injunction.
The opinion of the chancellor was made a part of the record, and in it he stated: "The court finds from the evidence in this case that whiskey was found near the premises of the defendant and was in his possession." But even if the opinion had not so recited, or had not been in the record, we would, in support of the validity of the decree, be obliged to consider that he had so found, since he was acting upon the entire record before him. See the elaborate discussion of this subject in Railroad Co. v. Adams, 81 Miss. 90, at pages 105, 109, 32 So. 937.
Suggestion of error overruled.