Opinion
No. 33884.
January 2, 1940.
ACTION.
In suit by state tax collector and district attorney to collect monetary penalties for sale of intoxicating liquors at defendant's place of business and abate such place as nuisance, court erred in failing to enter order in response to special demurrer for misjoinder of parties and causes of action that tax collector file separate bill without new process (Code 1930, secs. 396, 2000, 2001, 2007).
APPEAL from chancery court of Choctaw county; HON. T.P. GUYTON, Chancellor.
J.S. Savage, of Leland, for appellant.
The action of the Chancellor in overruling the special demurrer was fatal error, because this action was instituted by two separate complainants, whose aims were entirely different, whose purposes were not in common, and the results of which lawsuit could not have been mutually beneficial if successful. The state tax collector wanted to collect One Thousand Dollars off of appellant; the district attorney wanted to have a place of business abated as a nuisance and appellant placed under bond not to continue or repeat the nuisance for a period of two years. This was not a nuisance, if all of the testimony in the record is taken as true so far as the state tax collector is concerned and he was not interested in this feature of the case as it is not his duty or to his interest to enforce the liquor laws of Mississippi in this manner.
49 C.J. 393.
Getting down to the core of the whole matter and leaving out the prejudice and feeling evidenced in the trial in the court below (which this court is not concerned with) there was not sufficient evidence to justify the court in placing appellant under any bond to refrain from violating the liquor laws of Mississippi.
We respectfully submit to the court that even if the court should hold that the honorable chancellor was correct in overruling the special demurrer (which we do not think it will do), the simple facts in the case were insufficient to justify the holding of the court below that appellant should be required to make any bond under the acts of the Legislature of 1938.
W.D. Conn, Jr., Assistant Attorney-General, for appellee.
In the case at bar all the relief which was sought grew out of the same identical transactions and against the same defendants.
Miss. Code of 1930, Secs. 396, 397, 2000, 2001, and 2007, as amended by Chapter 349, Laws of 1938.
All of these sections are contained in the chapter on intoxicating liquors. They are in pari materia and must be construed one with the other and all of them are to be enforced, unless they directly conflict with each other.
As to the third ground of special demurrer, we think that this assertion is disposed of by Section 2001, which expressly provides that the chancery court may enjoin or supress a nuisance in connection with a suit for the penalty provided by Section 2000.
Of course, it will be conceded by appellant that this court will uphold the decision of the chancellor on the facts, unless it is clear that the case has been decided against the great weight of the evidence. Evidence to sustain the injunction in this case was as strong or stronger than the evidence in those padlock proceedings which have been decided by this court within the last two years.
State v. White (Miss.), 173 So. 456; State v. Ingram (Miss.), 176 So. 392; State v. Hoyt (Miss.), 178 So. 89.
Under Secs. 2000 and 2001, Code 1930, the state tax collector is authorized to bring suit in the chancery court to enforce the collection of the menetary penalties therein mentioned in cases where intoxicating liquors are sold or given away at the defendant's place of business. Under Sec. 2007, the district attorney is empowered to sue in the chancery court to abate as a nuisance any place or room where intoxicating liquors are found, kept, or possessed. The state tax collector is not authorized to bring suit under the section last cited; the district attorney is not empowered under the sections first mentioned.
In the case here before us, the state tax collector and the district attorney joined in the same bill, alleging that the defendant was keeping and selling intoxicating liquors at a place of business controlled and operated by him. The defendant, by special demurrer, raised the point in limine that the bill should be dismissed because of a misjoinder of parties and of causes of action. The court overruled the demurrer but proceeded to the hearing and decree only as to the nuisance feature, leaving to one side for the time the feature dealing with the monetary penalties.
We might with reason say that the State is the real party in interest as complainant in respect to both features presented by the bill, and that the state tax collector and the district attorney were merely the nominal agents of the one complainant, the State. But we must assume that the legislature had some real and substantial reason or purpose in not including the district attorney as an agent to bring the suit in a case of the class first mentioned, and in not including the tax collector in the other; and to preserve this reason or purpose we must treat these officers in regard to the separate objects to be accomplished in their respective capacities as if under the same rules which would apply to separate complainants acting as individuals and in their separate, individual interests.
Under the ancient equity practice it was the rule in some, if not most, jurisdictions that where there has been a misjoinder of parties complainant the bill would be dismissed without prejudice. But if this rule ever had any practical operation in this State, it has been displaced by Section 396, Code 1930, which has been among our general statutes for nearly seventy years; so that now, when two complainants, separate in interest, each with a separate cause of action, although growing out of the same, or nearly the same particular state of facts, join as complainants, the requirement is, not that the bill be dismissed, but instead, that it be recast into separate bills, without new process. And that is what the court should have ordered in the present case. See the discussion of this subject, Griffith's Miss. Chan. Pr., Secs. 197 et seq.
The court proceeded, however, as we have already said, as if the bill had been recast, and adjudged the issues presented by the district attorney in favor of the complainant, and in so doing was supported, as we think, by ample evidence. The court laid aside the complaint as regards the state tax collector, and the only error made by the court was in not entering an order in response to the special demurrer that a separate bill, but without any new process, shall be filed by the state tax collector. The decree will be affirmed as regards the relief prayed by the district attorney, but will be reversed and the case remanded so that an order may be made as above indicated as regards the complaint of the state tax collector.
Affirmed in part, and in part reversed and remanded.