Summary
In Redding v. State, 1939, 184 Miss. 371, 185 So. 560, the appellant had been enjoined from operating a place in which gambling was permitted and intoxicating liquors were sold. There was no allegation that prostitution was permitted on the premises, yet the trial court followed the procedures under the latter statute. It was held that the prostitution-injunction act did not apply to procedures under either Chapters 341 or 349 of the 1938 Laws.
Summary of this case from Alexander v. StateOpinion
No. 33490.
January 9, 1939.
1. INTOXICATING LIQUORS.
Statute dealing with lewdness, assignation and prostitution, and giving chancery court power to abate prostitution and similar nuisances and to prohibit use of property, has no application to gambling and liquor nuisances; prostitution not being involved (Code 1930, section 2668 et seq.; Laws 1938, chapters 341, 349).
2. INJUNCTION.
An order of injunction which is not utterly void must be obeyed until dissolved, regardless of how erroneous it may be.
3. INTOXICATING LIQUORS.
Defendant removing personalty from premises in violation of decree enjoining gambling and liquor nuisances but not involving prostitution, could not be adjudged in contempt since the part of the injunctive order against removal of personalty from premises was absolutely void (Code 1930, section 2868 et seq.; Laws 1938, chapters 341, 349).
4. INJUNCTION.
An injunction which is erroneous to the extent that it has in fact no support of any applicable law whatever is void, and, being void, cannot sustain a sentence for contempt.
APPEAL from the chancery court of Lamar county; HON. BEN STEVENS, Chancellor.
Dale Koonce, of Hattiesburg, for appellant.
The injunction involved, for the alleged violation of which appellant was convicted, was and is absolutely void.
The bill of complaint not having been filed in the name of the state on the relation of complainant, a private citizen, and no allegation having been made therein that complainant was specially injured by the operation of the said alleged nuisance, the suit was not maintainable, and the injunction issued thereunder was and is absolutely void.
Laws 1938, Chapters 341 and 349, pages 711 and 731 respectively; National Surety Co. v. Holmes County, 120 Miss. 565, 81 So. 792; Green v. Lake, 54 Miss. 540; Pearman v. Wiggins, 103 Miss. 4, 60 So. 1.
If complainant had made the proper allegations showing special injury to himself by the existence of the alleged public nuisance so as to enable him to maintain the suit in his private or individual capacity, the injunction as given would still be a nullity for the reason that no bond was provided for or given.
Castelman v. State, 94 Miss. 609, 47 So. 647; Griffith's Equity, sec. 448.
The injunction as given was and is void for the reason that it was issued under authority of Section 2871 of the Code of 1930, which is a part of Chapter 53 of the Code. Chapter 53 of the Code is solely with reference to lewdness and prostitution nuisances, and it has no application whatsoever here and cannot be invoked here.
Pigford v. State ex rel. Broach, 183 So. 259.
The injunction being void and a complete nullity, no one was required to obey it; and the conviction of appellant for having violated it was erroneous.
Griffith's Equity, sec. 450; Ex parte Wimberly, 57 Miss. 437; Castleman v. State, 94 Miss. 609.
If the injunction involved were valid, this contempt proceeding could not be maintained. In the first place, no verified complaint of the alleged violation of the injunction was made and presented to the Chancellor as a basis for the rule as made by the Chancellor and the citation and subsequent proceedings. This was essential.
Griffith's Equity, sec. 667.
In the second place, the complaint as made that the injunction had been violated by the removal of some of the personal property involved was not made by the complainant, Holcomb, but it was made by the sheriff who was not a party to the suit. And on the proposition that the complaint had to be made by complainant, and by him only, we cite Griffith's Equity, section 451.
Sebe Dale, of Columbia, for appellee.
Chapters 341 and 349, respectively, of the Laws of 1938, provide that suit for abatement of places described therein as nuisances may be brought in the name of the attorney-general, or any district or county attorney, whose duty requires him to prosecute criminal cases in such county, or by any citizen or citizens of such county wherein the nuisance is maintained. These chapters simply extend and give the authority for bringing of such suits so that a citizen or citizens may have the same authority to bring such suits as was formerly given, by Sections 2007 and 2871 of the Code of 1930, only to the attorney-general, or district attorney or county attorney, and extending and giving such authority it is not necessary, as argued by appellant, for the citizen or citizens so bringing such suit to show that he or they were suffering special injury by reason of alleged nuisance.
It occurs to me that the legislature had in mind that a nuisance affecting the county as a whole affected a citizen or citizens thereof, or affecting a citizen or citizens of the county affected the county as a whole, and intended to give to each and all citizens the same right and authority to go into court in his or their name to abate such nuisance as formerly was given only to the attorney-general, or district attorney or county attorney. If such is the proper construction of the statutes the injunction so granted is valid. If not, I grant that the injunction is void.
If the injunction was valid appellant should have refrained from going upon the premises and in the buildings so enjoined and removing therefrom any personal property. If the injunction was valid but too all embracing appellant's remedy was by application for modification thereof.
Pigford v. State ex rel. Broach, 183 So. 259.
Appellant could not assume unto himself the right to decide to what extent it was too embracing and violate it to that extent.
A bill of complaint was exhibited in the Chancery Court of Lamar County against appellant and others, alleging that the defendants were engaged in the operation of a place, describing it, wherein gambling was being permitted and intoxicating liquors were being sold. There was no allegation or contention that lewdness or assignation or prostitution was being permitted on the premises. Proceedings were thereupon had and conducted throughout as if under Chapter 53, Code 1930, section 2868, et seq., which deals with the subject last mentioned, and which chapter has no application to the nuisances involved in a case such as here before us, — as expressly held recently in Pigford v. State ex rel., 183 So. 259.
In the decree enjoining the nuisance there was included a prohibition against the removal of any of the personal property from the premises; which prohibition would have been valid and obligatory under said Chapter 53, Code 1930, had that chapter been available in the character of case before the court, but for which there is no authority whatever in the statutes, Chapters 341 and 349, Laws 1938, dealing with gambling and liquor nuisances, — prostitution not being involved.
Appellant Redding removed some of the personal property from the premises, for which he was adjudged in contempt and was sentenced to imprisonment, from which sentence this appeal is prosecuted.
The question is whether that part of the decree which was disobeyed was absolutely void, the rule being that however erroneous an order of injunction may be, so long as not utterly void, it must be obeyed until dissolved. The answer here must be, however, that that part of the injunctive order here in question was utterly or absolutely void. An injunction issued without any authority of law whatever is necessarily void, else we would permit all the asserted evils of government by judicial fiat, rather than by or under the law of the land. And upon the same reason, of course, where a part of an injunction is without any authority of law whatever, that part will be void.
It is true that the injunction was issued, and the sentence here appealed from was entered, by the chancellor before the date of the decision by this Court in Pigford v. State, supra, and that it had theretofore been supposed by many of the bench and bar that Chapter 53, Code 1930, applied to liquor and gambling establishments as well as to places of assignation and prostitution; but the error in applying that chapter to the case which was here before the chancellor does not operate to make the injunction erroneous only, and one which, therefore, must be obeyed until dissolved. Every void injunction might in one sense be said to be erroneous; but the point is that when an injunction is erroneous to the extent that it has in fact no support of any applicable law whatever, it can be nothing more than void, and being void cannot sustain a sentence for contempt. And whatever division among the authorities there may be in other states, our court by the elaborate opinion in McHenry v. State, 91 Miss. 562, 44 So. 831, 16 L.R.A. (N.S.) 1062, is committed to the rule to which we are here conforming.
Reversed, and appellant discharged.