Summary
In State ex rel. Rice v. Allen, 180 Miss. 659, 177 So. 763, 764, it was said: "Though equitable action is never predicated on the prevention of crime, as such, it is also true that the fact that conduct is punishable criminally does not constitute an adequate remedy so as to bar equitable relief...". This principle was followed in Southern Bus Lines, Inc., v. Amalgamated Ass'n., 205 Miss. 354, 38 So.2d 765.
Summary of this case from Paramount Theatres v. HattiesburgOpinion
No. 33015.
January 3, 1938. Suggestion of Error Overruled January 31, 1938.
1. CONSTITUTIONAL LAW. Licenses.
The statute imposing tax on sales of retail merchants and requiring them to collect tax from customers is not unconstitutional as violative of due process clauses of State and Federal Constitutions (Laws 1936, chapter 155, sections 1, 4; Constitution Mississippi 1890, section 14; Const. U.S. Amend. 14).
2. INJUNCTION.
Equitable action is never predicated on the prevention of crime as such, but the fact that conduct is punishable criminally does not constitute an "adequate remedy" so as to bar equitable relief.
3. INJUNCTION.
The state on the relation of the Attorney-General was entitled to mandatory injunction requiring retail merchants to obey statute imposing tax on their sales, notwithstanding violation of statute is a criminal offense, where failure to obey statute was impairing the efficiency of state tax collector in ascertaining and collecting tax, since state was without an adequate remedy at law (Laws 1936, chapter 155, sections 1, 4).
4. INJUNCTION.
A preliminary mandatory injunction should not be granted except in cases of extreme necessity.
APPEAL from chancery court of Tishomingo county. HON. JAS. A. FINLEY, Chancellor.
John F. Frierson, of Columbus, for appellants.
This act, Chapter 155, Laws 1936, is constitutional. The Supreme Court of the State of Mississippi in the case of Notgrass Drug Co. v. State, ex rel. Rice, Attorney-General, 165 So. 884, 175 Miss. 358, has completely upheld the constitutionality of the sales tax, which is set out in Chapter 119, Laws 1934, and particularly section 2-c of the said chapter. This chapter had already been declared constitutional in the case of Southern Package Corporation v. State Tax Commission, 164 So. 45, 174 Miss. 212. Chapter 155, Laws 1936, is simply an addition to section 2-c, chapter 119, Laws 1934, and constitutes the rules and regulations promulgated by the Legislature, and set out in section 2-c of the said chapter 155, Laws 1936, "for the purpose of more efficiently securing the payment of and accounting for the tax imposed by this act."
The presumption is always in favor of the constitutionality of a law enacted by the Legislature, and the court must be slow and cautious to overthrow legislative action.
State v. Page, 130 S.E. 426, 44 A.L.R. 501; 3 Enc. Dig. Va. and W. Va. Rep. 161-164; id. 2 Cum. Supp. 36-39.
Chapter 119, Laws 1934, has been declared constitutional. We, therefore, ask wherein can it be claimed that chapter 155, Laws 1936, is unconstitutional? There is no lack of uniformity and equality in the tax imposed by Sec. 2-c, chapter 119, Laws of 1934, and this uniformity and quality has certainly not been disturbed, shaken, or thrown out of balance in any respect by the enactment of Chapter 155, Laws 1936.
If a tax is imposed directly by the Legislature without assessment, and its sum is measured by the amount of business done, or the extent to which the conferred privileges have been enjoyed or exercised by the taxpayer irrespective of the nature or the value of taxpayer's assets, it is regarded as an excise.
26 R.C.L. 35, section 19 and section 209; Alexander Theatre Ticket Office v. U.S., 55 F.2d 66.
If it should be claimed that it is a tax against the purchaser, instead of against the seller, I do not know of any prohibition against the sovereign power of any government to tax a purchaser. The transaction bears a tax. The trade bears a tax. Therefore, the purchaser always bears the tax and necessarily so.
It is well recognized that "the power of taxation rests upon necessity, and is an essential and inherent attribute of sovereignty, belonging, as a matter of right, to every independent state or government, and it is as extensive as the range of subjects over which the power of that government extends."
61 C.J. 76, section 7; Clarksdale Ins. Agency v. Cole, 40 So. 228, 87 Miss. 637; Teche Line v. Bd. of Sup'rs., Forrest County, 142 So. 24, 165 Miss. 594, 143 So. 486; Miss. State Tax Comm. v. Flora Drug Co., 148 So. 373, 167 Miss. 1.
Injunction is not only the proper relief in the case at bar, but is the only adequate relief. There is no other relief. The injury is both present and prospective. It is irreparable, and it affects every citizen of the state. Whenever the property rights or the civil rights of an individual, much less of the state itself, are invaded and violated, and there is not a complete and adequate remedy at law, a court of equity can grant relief by injunction.
Griffith's Chancery Practice, section 434; Jansen Farms v. City of Indianapolis, 171 N.E. 199.
The fact that keeping a nuisance is a crime does not deprive a court of equity of the power to abate the nuisance.
Carlton v. Rug, 5 L.R.A. 193, 149 Mass. 550; Littleton v. Fritz, 68 Iowa 488, 54 A.L.R. 19; State ex rel., McCarter v. Fireman's Ins. Co., 29 L.R.A. (N.S.) 1194; People ex rel., Attorney-General v. Tool, 35 Colo. 225, 86 P. 224, 6 L.R.A. (N.S.) 822; Debs case, 158 U.S. 564, 39 L.Ed. 1092, 15 S.Ct. 900.
In McMillan v. Live Stock Sanitary Board, 119 Miss. 500, 81 So. 169, the court upheld the statutory injunction which had been enacted in Chapter 167, Laws of 1916, requiring owners to dip live stock, when ordered so to do by the inspector. The court says in that opinion (170) "In the opinion of the court there is no doubt that the legislature has the power to confer upon the chancery court jurisdiction to enforce by injunction the lawful orders of the livestock sanitary board. . . . Taking the statute by its four corners, it seems clear to us that the legislature was impressed with the importance of the enforcement of this law, and, realizing that the local justices of the peace, inspectors, and owners of live stock might fail or refuse to cooperate in carrying out the legislative purposes, they conferred upon the chancery court the power to enforce the performance of all the duties imposed upon officers and individuals as well."
Certainly in the case at bar it would be claimed that the Legislature would not have authority to confer upon the chancery court jurisdiction to enforce Chapter 155, Laws 1936, by injunction, if the act is constitutional. Our argument is that the chancery court has inherent jurisdiction in such matters, because there is no adequate remedy at law or relief at law to prevent or prohibit the future interference of these defendants with the functioning of one of its departments of state, and the department of vital importance.
State v. Marshall, 100 Miss. 826, 56 So. 792; State ex rel. Attorney-General v. Hasson Grocery Co., 170 So. 234.
J.M. Thomas, of Tupelo, and J.A. Lauderdale, Assistant Attorney-General, for appellant.
It is admitted that the bill does not charge the defendants as being in default of the payment of the sales tax to the state for which judgment is asked. While the bill does allege that the defendants were in default, it further alleges that they were audited and the debt found to be due was paid.
We do not conceive it to be the law that it is a prerequisite for equity jurisdiction that the state should have a claim for a debt due for unpaid taxes against the defendants. Should it be that there was a claim for debt and the presentation thereof was unaccompanied by other grounds of an equitable nature there would be ample remedy in a court of law or under the statutory procedure for enforcing the tax lien and the issuing of a warrant as provided by Sections 12 and 13 of Chapter 158 of the Laws of 1936.
On the contrary by careful reading of the bill, the gravamen thereof, it will be seen, was to compel compliance with the mandatory feature of the administrative provisions of the sales tax law; that is, compelling the person liable for the tax to add the tax to the sale price of the tangible property sold and in addition thereto, collecting same from the purchaser of the property sold. The breach of the duty is not in the failure to pay a debt but in violating the rights of the state and the public (other taxpayers liable for the payment of the sales tax) created by legislative act to better and more uniformly administer the revenue laws of the state, the breach of which duty and the violation of which right, result in a damage or injury that cannot be calculated or measured, are irreparable, and for which there is no adequate redress, by the process of the courts of law, the machinery set up by the statute or otherwise. The interference with the machinery as set up and prescribed by the statute, is quite a different thing from simple failure to pay a debt.
Chapter 155, Laws of 1936, is constitutional.
The basis of the office of a tax collector from a constitutional standpoint is found in section 135 of the State Constitution.
It has been held by our court that taxes assessed by the sheriff under this section of the Constitution had no application whatever to privilege taxes.
Enochs v. State, 133 Miss. 107, 97 So. 534; State v. G.M. N.R. Co., 138 Miss. 70, 104 So. 689.
The sales tax law has been upheld as constitutional in the case of Notgrass Drug Co. v. State, 175 Miss. 358, 165 So. 884; Southern Package Corp. v. Tax Commission, 174 Miss. 212, 164 So. 45.
On the subject of reasonableness of the statute providing that the seller of property shall pass the tax on to the purchaser and in addition thereto it appears to us that if this court could uphold as it has done as reasonable a statute which required a merchant who lives 25 miles from a wholesale house to transport his merchandise to the nearest wholesaler and have it stamped before he can make a sale thereof, then the statute which we have to deal with in the sales tax law certainly meets the requirements as being reasonable.
Miss. State Tax Commission v. Flora Drug Co., 148 So. 373.
The chancery court had jurisdiction of this case.
14 R.C.L. 376, par. 78; 32 C.J. 275, sec. 438; Joy v. St. Louis, 138 U.S. 1, 34 L.Ed. 843; Re Debs, 158 U.S. 582, 39 L.Ed. 1102; U.S. v. San Jacinto Tin Co., 125 U.S. 273, 31 L.Ed. 747; City of New Orleans v. Liberty Shop, Lts., 157 La. 26, 101 So. 798; 40 A.L.R. Ann. 1136.
In the case at bar in applying the principles announced in the Debs case and in the Liberty Shop case and in the text of R.C.L., and Corpus Juris all the elements of a violation of property rights, of public rights and irreparable damage without an adequate remedy at law is shown to exist. Whether it would be technically termed a nuisance as in the Liberty Shop case or as was indicated it might be so called in the Debs case, we are not prepared to say, except that all of the fundamental elements that characterize a right of action to abate a nuisance exist in the case at bar and even though the acts of the defendant would not be declared by the court to be a nuisance, there the fundamental elements of a breach of duty on the part of the defendants is shown that justified jurisdictions of a court of equity to enjoin, whether or not it would be characterized as against the general welfare of the state a breach of duty owing to the state by virtue of the statute which upon its face presupposes damage to property rights of merchants and the public generally, or on the basis of a public nuisance. Under any of the circumstances there is ample authority by the courts to uphold the right of the chancery court to grant the injunction.
State v. Lindsay, 85 Kan. 79, 116 P. 207, 35 L.R.A. (N.S.) 810; State of Kansas ex rel. Hopkins v. Howart, 109 Kan. 376, 198 P. 686, 25 A.L.R. 1210; State of Kansas v. Mahon, 128 Kan. 772, 280 P. 906, 66 A.L.R. 1072; Stockton v. Frisbee, 270 P. 270; City of Independence v. Hindenash, 144 Kan. 414, 61 P.2d 124; Blount v. 16th Street Baptist Church, 206 Ala. 423, 90 So. 602; Hardie Tynes Mfg. Co. v. Cruse, 189 Ala. 66, 66 So. 657; Bryan v. Birmingham, 154 Ala. 477, 45 So. 922, 129 A.S.R. 63; Floyd v. Adler, 96 Miss. 544, 51 So. 897; State v. Canty, 207 Mo. 439, 105 S.W. 1078, 15 L.R.A. (N.S.) 747; Jones v. Van Winkle, 131 Ga. 336, 62 S.E. 236, 127 A.S.R. 235, 17 L.R.A. (N.S.) 848; City of Rochester v. Gutberlett, 211 N.Y. 309, 105 N.E. 548, Ann. 1915C 482, L.R.A. 1915D 209; Ashinsky v. Levenson, 100 A. 491, L.R.A. 1917D.
W.C. Sweat, of Corinth, for appellees.
The statutes provide the method of collecting the tax, penalties for failure to pay, and punishment for failure to collect from the purchaser; and these remedies are exclusive.
No such thing as a sales tax was known to the common law; therefore, these statutes are in derogation of the common law and will be strictly construed.
Hopkins v. Sandridge, 31 Miss. 668; McKenzie v. Boykin, 111 Miss. 256, 71 So. 382; Johnson v. Reeves Grocery Co., 112 Miss. 227, 72 So. 925; Bullock v. Sneed, 13 S. M. 293; Glen v. Thistle, 23 Miss. 42; Rucker v. Dyer, 44 Miss. 691.
This court is committed to the doctrine that where the statute provides a remedy for the assessment and the collection of tax that remedy is exclusive.
Enochs v. State ex rel. Robins, 128 Miss. 361, 91 So. 20; Johnson v. Puffer Mfg. Co., 111 Miss. 240, 71 So. 377; Board of Supervisors v. Johnson, 7 So. 390; Robins v. Donovan Creek Drainage District, 152 Miss. 873, 120 So. 184.
Equity will not exercise its powers for the purpose of enforcing the criminal laws by restraining criminal acts.
It is elementary that courts of equity will not enforce the criminal laws, and no court in the country is more firmly committed to this doctrine than is this court.
14 R.C.L. 376, sec. 78; 32 C.J. 275, sec. 438; State v. Marshall, 100 Miss. 626, 56 So. 792; Pleasants v. Smith, 90 Miss. 440, 43 So. 475; Davis v. Fortenberry, 114 Miss. 294, 75 So. 119; Bd. of Suprs., Claiborne County v. Owen, 100 Miss. 462, 56 So. 525.
It may be contended in the case at bar, and it seems to be, that property rights of the State of Mississippi are involved, but no such property rights are involved as is contemplated when a court of equity enjoins the threatened damage or destruction of property.
Edwards v. De Vance, 138 Miss. 580, 103 So. 194.
It is true that this court has held that an injunction may be issued to restrain the threatened destruction or damage to property, but this court has never held that a court of equity has a right to enjoin the commission of a crime or the threatened commission of a crime, and the only case in which an injunction will be issued against the commission of a crime is when the injunction against the crime is merely incident to the other relief sought, and the injunction for a commission of the crime must not be the basis of a suit.
Floyd v. Adler, 96 Miss. 545, 51 So. 897.
In the case at bar the appellees have not taken possession of any of the state's property; it is not alleged that they did so; they are not threatening to take any of the state's property; they are not threatening that they will not pay all the taxes that are due the state; there is no such allegation in the bill. According to the very most that can be said of the bill is that they have refused to add the tax to the sales price and collect the same. Under the plain provision of the statute this is simply a misdemeanor and nothing more, and nothing more can be made out of it; and if a mandatory injunction is issued in this case it will be issued for the purpose of preventing the appellees from committing the misdemeanors which the bill alleges they are now committing.
This court has held in the case of Redmond v. State ex rel. Attorney-General, 152 Miss. 54, 119 So. 360, that injunction is not the proper remedy to prevent the practice of medicine without license where the Legislature has not made it so, even though in that case it was alleged that the public health was involved.
Dean v. Georgia ex rel. Anderson, 151 Ga. 371, 106 S.E. 792, 40 A.L.R. 1132; Pompano Horse Club v. State, 111 So. 801; State v. Vaughan, 81 Ark. 117, 18 At. St. Rep. 29; Laymaster v. Goodin, 260 Mo. 613, Ann. Cas. 1916C 452.
The courts hold that a person charged with a crime or a misdemeanor is entitled to a jury trial and this right cannot be denied a citizen by the indirect method of enjoining defendant from committing the crime in a court of equity and thus substituting the decision of one man for the decision of the jury.
Appellant insists that it is hard to enforce the law by a criminal prosecution and that in order to properly enforce it it is necessary for a court of equity to take charge and that the Legislature knew that it was hard to enforce and have the tax collected evenly and justly from all persons alike, and that was the reason for passing Chapter 155. This argument falls flat, however, when you examine Chapter 155 and see that it only provides for the prosecution of the violator of the statute and does not make provision for the interference of a court of equity.
State of Indiana v. O'Leary, 52 L.R.A. 299; State v. Ehrlick, 23 L.R.A. (N.S.) 692; U.S. Express Co. v. State of Arkansas, 35 L.R.A. (N.S.) 879.
Ordinarily injunction will not lie to prevent commission of crime.
Board of Dental Examiners v. Payne, 213 Ky. 382, 281 S.W. 188.
Equity will not enjoin acts or omissions merely because punishable as crime though authorized to enjoin public nuisance which is also a crime.
State v. District Court, 77 Mont. 361, 251 P. 137, 49 A.L.R. 527; Vera v. Robinson, 16 S.W.2d 860.
Equity will not grant injunction to prevent violation of criminal statute not involving the use of property, breach of contracts, or maintenance of public nuisance.
Commonwealth v. Ky. Jockey Club, 238 Ky. 739, 38 S.W.2d 987; Smith v. Collison, 6 P.2d 277, 136 Kans. 411, 15 P.2d 459; Town of Mt. Clair v. Kip, 110 N.J. Eq. 486, 160 A. 676; People ex rel. Kerner v. Huls, 355 Ill. 412, 189 N.E. 346; Olsen v. City of Platteville, 251 N.W. 245; Wolfenstein v. Fashion Originators Guild of America, 280 N.Y. Supp. 361, 244 App. Div. 656.
Taking this bill by its four corners, it is nothing more nor less than an attempt on the part of the appellant to enforce the criminal provision of this statute by mandatory injunction, and as shown by the authorities hereinabove enumerated, both from this court and from the various other courts of the country, this will not be done.
In the cases where equity has enjoined criminal acts it was done on the ground either that the acts were public nuisances or the public health or public morals involved, or destruction of the property of the State was threatened, or that a conspiracy existed to damage the State or a large part of the public.
State v. Canty, 207 Mo. 439, 123 Am. St. Rep. 393; In re Debs, 39 L.Ed. 1092; State v. Columbia Water Power Co., 82 S.C. 181, 129 Am. St. Rep. 876; Kansas v. Howat, 109 Kan. 376, 25 A.L.R. 1210; Coosaw Mining Co. v. State of South Carolina, 36 L.Ed. 537; State v. Hasson Grocery Co., 170 So. 234; State of Kansas ex rel. Attorney-General v. McMahan, 128 Kan. 772, 280 P. 906.
Preliminary mandatory injunctions will never be issued except in cases of extreme necessity.
Griffith Chancery Practice, section 444.
The rule that equity will interfere to prevent multiplicity of suits has no reference to enjoining criminal acts but has reference to suits in civil actions.
Cumberland Tel. Tel. Co. v. Williamson, 101 Miss. 1, 57 So. 559; G. S.I.R. Co. v. Walker, 103 Miss. 836, 60 So. 1014.
Clark Clark, of Iuka, for appellees.
The only question which we desire to discuss is the constitutionality of Chapter 155, Laws of 1936, and we base our conclusions on the very wording of Section 1 of said act.
Counsel for appellant rely on Notgrass Drug Co. v. State, 175 Miss. 358. This case was decided under the 1934 sales tax law which imposed on the seller of the property the payment of a two per cent sales tax which was held to be constitutional and which was a privilege for the carrying on of the business, but our contention is that under the 1936 Act, Chapter 155, section 1, that this tax is placed on purchaser and not on the seller and is entirely different from the 1934 act as decided by the Notgrass case.
Paragraph 1 of Chapter 155 says "That any person, firm or corporation who is engaging or continuing within this state in the business of selling any tangible property, and who is liable for a privilege tax assessed and levied by Section 2-c of Chapter 119, Laws of Mississippi, 1934, on account of the sale of such property, shall add the amount of such tax due by him to the sales price of the said property and shall collect the amount of said tax due by him to the state under the provisions of said statute from the purchaser of said property at the time the sales price is collected, etc."
There are two collections under this section, one is the sales price and the other is the tax, and regardless of what they want to all this by the addition of the two per cent to the sales price it nevertheless is a collection of the tax from the purchaser, and if a collection from the purchaser, it certainly is a levy against the purchaser which the Legislature was without authority to declare for the reason no privilege tax is imposed and the Legislature would be without authority to impose a privilege tax or a sales tax on the purchaser of property, and we say that this tax is imposed on the purchaser by the very wording of the act itself.
Counsel for appellant concede that the seller is a tax collector and if the law is constitutional that the State by making such tax collector can make him such without any enumeration whatsoever which would be a burden imposed on the seller of tangible property and would be taking his property without due process of law.
There is one other point which we desire to raise in this case and that is all the State of Mississippi wants is whatever tax that is due the State. So far as the pleadings are concerned in this case the appellees did not owe the State any sales tax whatsoever and what difference should it make to the State how the tax was paid or by whom it was paid just as long as they collected it. When the State says to a taxpayer you are to pay so much tax and this taxpayer pays it no harm whatsoever has been done the State, and if no harm or injury has been shown by the pleadings then there is no reason why a temporary injunction should issue.
Argued orally by J.M. Thomas and J.A. Lauderdale, for appellant, and by W.C. Sweat, for appellee.
This is an appeal from a decree sustaining a demurrer to, and dismissing, an original bill of complaint. Section 2-c, chapter 119, Laws of 1934, imposes a sales tax on persons engaged in the business of selling tangible property equivalent to 2 per cent. on the gross proceeds of the business. Other sections provide for the report of sales, the tax due thereon, and the payment thereof to the State Tax Commission. This statute was held to be constitutionally valid in Notgrass Drug Company v. State, 175 Miss. 358, 165 So. 884, though, admittedly, a seller thereunder has the right to pass the tax onto purchasers by including it in the price of the property sold. Section 1 of chapter 155, Laws 1936, provides: "That any person, firm, or corporation who is engaging or continuing within this state in the business of selling any tangible property, and who is liable for a privilege tax assessed and levied by section 2-c of chapter 119, laws of Mississippi, 1934, on account of the sale of such property, shall add the amount of such tax due by him to the sales price of said property and shall collect the amount of said tax due by him to the state under the provisions of said statute from the purchaser of said property at the time the sales price is collected, and in addition thereto." Section 4 makes a violation of this statute a criminal offense, punishable by a fine of not less than $50 nor more than $100.
According to the allegations of the bill of complaint, the appellees are copartners engaged in the retail mercantile business, and were so engaged during the year 1936. They have systematically failed and refused to obey chapter 119, Laws of 1934, though often requested so to do, and intend to continue to so refuse. It is necessary for chapter 155, Laws of 1936, to be obeyed by sellers of property in order for the State Tax Commission to efficiently collect this tax, and also to cause its burden to be equally distributed. The failure in 1936 of the appellees to obey this statute necessitated an audit of their books of account by the State Tax Commission in order for it to ascertain the amount of the tax they owed on sales made during that year.
The prayer of the bill is for a preliminary mandatory injunction requiring the appellees to obey the provisions of chapter 155, Laws 1936, and that on final hearing the injunction be made perpetual.
No fiat for the issuance of this preliminary injunction was obtained at or before the filing of the bill, but, after it was filed, pursuant to a request therein, the chancellor appointed a day for hearing the prayer for an injunction, and caused notice thereof to be served on the appellees. On the appointed day, counsel for all parties appeared, and the appellees filed a demurrer to the bill of complaint, challenging its sufficiency on a number of grounds. The court heard the demurrer, ordered that it be sustained, and the appellant declining to plead further, rendered a final decree dismissing the bill of complaint. What took place then was not merely a determination by the chancellor as to whether a preliminary injunction should be granted, but a hearing of the case on its merits, and the rendition of a final decree. While all this took place in vacation, all parties evidently agreed thereto, at least, no complaint thereof is here made, and we will deal with the case as one decided by the chancellor under his vacation powers.
The appellees seek to justify the decree on two grounds, first, the statute is constitutionally invalid, and, second, the allegations of the bill of complaint present no ground for the issuance of an injunction. The conclusion we have reached as to the second necessitates the decision of both.
Chapter 155, Laws 1936, is alleged to be constitutionally invalid for the reason that it violates the provisions of the State Constitution, section 14, and the Fourteenth Amendment to the Federal Constitution, that no person shall be deprived of life, liberty, or property without due process of law, in that it requires sellers of property "to collect the taxes from their customers without any remuneration therefor" instead of requiring the collection to be made through the regular tax collecting officers.
A provision in a sales tax statute requiring dealers to collect the tax from their purchasers is in general use. 47 Harvard Law Review 868. The constitutional validity thereof seems logically to follow from Notgrass Drug Co. v. State, supra, and that such a requirement does not violate due process of law has been expressly decided by the Supreme Court of the United States in Pierce Oil Corporation v. Hopkins, 264 U.S. 137, 44 S.Ct. 251, 68 L.Ed. 593, and Monamotor Oil Co. v. Johnson, 292 U.S. 86, 54 S.Ct. 575, 78 L.Ed. 1141. See, also, Heriot v. Pensacola, 108 Fla. 480, 146 So. 654; Rainier National Park Co. v. Martin, D.C., 18 F. Supp. 481; Johnson v. Diefendorf, 56 Idaho 620, 57 P.2d 1068; Fox v. Frank, 52 Ohio App. 483, 3 N.E.2d 996; Morrow v. Henneford, 182 Wn. 625, 47 P.2d 1016; Texas Co. v. State, 31 Ariz. 485, 254 P. 1060, 1062, 53 A.L.R. 258; Standard Oil Co. v. Brodie, 153 Ark. 114, 239 S.W. 753. Cf. In re Opinion of the Justices, N.H., 190 A. 801.
This brings us to the right of the appellant to the requested injunction. The appellees' objections to the granting of this injunction, in substance, are: (1) An injunction will not lie to restrain the commission of a crime; and (2) the bill of complaint does not disclose (a) any right of the appellant which Equity will protect by an injunction, and, if mistaken in this, (b) no threatened injury to such a right is disclosed; (3) a preliminary mandatory injunction should not be granted except in cases of extreme necessity.
1. "Though equitable action is never predicated on the prevention of crime, as such, it is also true that the fact that conduct is punishable criminally does not constitute an adequate remedy so as to bar equitable relief." Section 1009, Lawrence on Equity Jurisprudence; Floyd v. Adler, 96 Miss. 544, 51 So. 897; Crighton v. Dahmer, 70 Miss. 602, 13 So. 237, 21 L.R.A. 84, 35 Am. St. Rep. 666; Pleasants v. Smith, 90 Miss. 440, 43 So. 475, 9 L.R.A. (N.S.), 773, 775, 122 Am. St. Rep. 317.
2. The appellees are engaged daily in making sales of merchandise on each of which arises a tax payable to the appellant at a fixed time thereafter. According to the allegations of the bill of complaint, the efficiency of the appellant's tax collector in ascertaining and collecting the tax is being impaired by the failure of the appellees to obey the statute. The appellant being without an adequate remedy at law therefor, a ground for relief by injunction is thereby presented.
3. It is true that a preliminary mandatory injunction should not be granted except in cases of extreme necessity, but no preliminary injunction was here granted. What the court below did, as hereinbefore set forth, was to try the case on its merits, resulting not merely in the refusal to grant a preliminary injunction, but in the dismissal of the appellant's bill of complaint.
The decree of the court below will be reversed; the demurrer will be overruled, and leave given to the appellees to answer the bill of complaint, if they so desire, within thirty days after the filing of the mandate in the court below.
So ordered.