City of New Albany v. Benya

• Decision Date: 11 June 1956
• Docket Number: No. 40190,40190
• Citation: 228 Miss. 419,87 So.2d 889
• Parties: CITY OF NEW ALBANY, Mississippi, v. Andy BENYA and Flexer Theaters of Mississippi, Inc.
• Court: Mississippi Supreme Court

Page 889

87 So.2d 889

228 Miss. 419

CITY OF NEW ALBANY, Mississippi, v. Andy BENYA and Flexer Theaters of Mississippi, Inc.

No. 40190.

Supreme Court of Mississippi.

June 11, 1956.

Hugh N. Clayton, New Albany, for appellant.

Smallwood, Darden & Summers, New Albany, for appellees.

ETHRIDGE, Justice.

This case involves the validity of a municipal ordinance prohibiting Sunday picture shows, and if invalid, the question of whether a writ of prohibition lies against a municipality to prohibit further prosecutions of the manager of the theater under such void ordinance.

I.

On October 17, 1955, appellees, Flexer Theaters of Miss., Inc., and Andy Benya, filed in the Circuit Court of Union County against the City of New Albany a petition for writ of prohibition. Flexer Theaters operated in New Albany a moving picture show known as the Magnolia Theater. Benya was the manager. The petition charged that there is no ordinance of the City prohibiting the showing of moving pictures between 1 and 6 p. m. on Sundays, and, although the 1948 statute, Laws 1948, c. 401, permitted a local option as to Sunday shows during these hours, it was repealed by the 1954 laws, Laws 1954, c. 239. On April 13, 1948, the Mayor and Board of Aldermen passed a resolution calling for an election on May 18, 1948, on the issue of whether moving picture shows between the hours of 1 to 6 p. m. on Sundays should be prohibited.

There was no official record of any further action in regard to this matter until October 4, 1955. On that date, over seven years after the date of the called election, the Mayor and Board of Aldermen of the City of New Albany passed an ordinance which adjudicated that the election was held on May 18, 1948, but that the certificate of election of the city election commissioners had not been placed upon the minutes of the mayor and board, and that this should be done. The attached report of the election commissioners recited that the proposition banning all Sunday shows under the 1948 statute hereinafter recited was passed; and that two of the three election commissioners are now deceased, but that the report of the results of the election was made as authorized by law, and it was lost. Section 2 of the ordinance of October 4, 1955, therefore adjudicated that the majority of the qualified electors voting in the special election voted against the showing of moving picture shows, etc., between the hours from 1 to 6 p. m. on Sunday; and that the 1948 statute permitting operation of such shows during such hours on Sundays 'shall not be applicable to the City of New Albany, Mississippi, from May 18, 1948, to this date and from this date henceforward.'

The petition charged that the ordinance of October 4, 1955 is void under the 1954 statute; but that nevertheless on October 2, 9, and 16, 1955, petitioner Benya, manager of Magnolia Theater, was arrested, charged and fined for the alleged unlawful showing of moving pictures between the hours of 1 and 6 p. m. on respective Sundays, the said judgment being entered by 'B. N. Knox, Jr., Police Justice in said city;' that the City and its Mayor's Court has no jurisdiction to try Benya, no offense having been committed by him, but he is threatened with successive prosecutions; that the City, acting by and through its police justice, is infringing upon the lawful use of the property of Flexer Theaters; that Benya is threatened with multitudinous prosecutions by the City for such alleged unlawful operations; and that he has no adequate remedy by appeal or in any other way. Hence the petition asked for an order prohibiting and restraining the City and its police justice from further prosecution of Benya until a final hearing; and that on final hearing the court will issue an order prohibiting the defendant City from arresting or prosecuting Benya or any other servants of the corporation for the showing of moving picture shows between 1 and 6 p. m. on Sundays.

The circuit judge issued a fiat for a temporary writ of prohibition directed to the City of New Albany. The writ was so issued, and the sheriff's return showed that service was had by delivering a true copy to 'Hon. B. N. Knox, Jr., Mayor of the City of New Albany.' On October 29, 1955, the circuit judge made an order setting the cause for trial in vacation on November 4, and directing issuance of a summons to defendant. It was served upon the City, by the sheriff delivering a copy to the Mayor of the City.

Defendant filed a general demurrer, averring that the petition did not state a good cause of action, and that the City is not a court and does not exercise a judicial function. Defendant also filed a motion to dismiss the petition and to quash the temporary writ of prohibition, on the ground that the only defendant is the City of New Albany, and it is not a proper party-defendant, not being a judicial officer and performing no judicial function. The general demurrer and the motion to dismiss were both overruled.

The City filed an answer denying the averments of the bill. Mayor Knox testified that he had directed the City Marshal to enforce the laws, including the ordinance prohibiting all Sunday moving pictures, and that the City Marshal is an elected official, responsible to the people and not to him. David Flexer, apparently one of the owners of the petitioner-corporation, said that as a result of Sunday movies between 1 and 6 p. m. operating in cities in that vicinity and the enforcement of the City of New Albany's ordinance prohibiting such movies, the petitioner-corporation was losing business in its Magnolia Theater.

The circuit court held that the suit was properly brought against the City; the summons upon Knox as Mayor was sufficient to bring him into court and subject him to the judgment; and that the ordinance of October 4, 1955, was void because of the defective and delayed certificate from the election commissioners, and because it was in violation of the 1954 statute, hereinafter discussed. Hence the final judgment prohibited the City of New Albany from arresting or prosecuting Benya or any other agent of petitioner-corporation for the showing of moving pictures between 1 and 6 p. m. on Sundays, and: 'the defendant, City of New Albany, Mississippi, and B. N. Knox, Jr. the Mayor of the City of New Albany, are hereby prohibited from arresting or prosecuting Andy Benya or any other servant or agent of Flexer Theaters of Mississippi, Inc., for showing moving picture shows between the hours of 1 o'clock p. m. and 6 o'clock p. m. on Sundays.'

II.

On this appeal by the City of New Albany, the sole question argued by appellant is that B. N. Knox, Jr., Mayor and Exofficio Police Justice of the City, was a necessary party to the proceeding, that he was not a party to this suit, and that therefore the court erred in overruling appellant's general demurrer and motion to dismiss the petition. In other words, appellant does not contend that the judgment of the circuit court was in error in holding that the city ordinance of October 4, 1955, was void. However, since the disposition of the point raised by appellant is necessarily related to the issue of the validity of the ordinance, the latter will be considered preliminarily.

Code of 1942, Section 2370, provided in effect that if any person shall show any moving picture show or do certain other stated things on Sunday, every person so offending shall be fined not more than $50. Miss.Laws 1948, Chap. 401, amended Section 2370, so as to remove from it certain previously prohibited activities, and further provided that the statute shall not prohibit the showing of moving picture shows between the hours of 1 to 6 p. m. on Sunday. Section 2 of Chapter 401 then stated that the showing of moving picture shows on those hours is legal, 'provided, however,' that if twenty percent of the qualified electors file a petition so requesting, the governing authorities shall call an election to determine whether the provisions of the first paragraph of Section 2, which permit Sunday shows between 1 to 6 p. m., shall be inapplicable within the municipality. In other words, the 1948 law authorized Sunday shows within the stated times, but provided for a local option election to exclude the same. Apparently the election under the 1948 law was held on May 18, 1948, but no report of the election commissioners was entered on the minutes of the Mayor and Board of Aldermen until October 4, 1955.

In the meantime, by Miss.Laws 1954, Chapter 239, effective May 4, 1954, the Legislature again amended Section 2370, and struck from it the local option provision. The 1954 statute expressly provided that it 'shall not be construed to prohibit the showing of moving picture shows' between 1 and 6 p. m. and 9 and 12 p. m. on Sunday. The 1954 Act by necessary implication repealed the local option provisions in Chapter 401 of the Laws of 1948. Hence when the city ordinance of October 4, 1955, undertook to adjudicate that the election of May 18, 1948, had excluded all Sunday moving pictures and that it was a valid and effective ordinance, there was no power in the city to so provide. The 1954 statute expressly authorized such moving picture shows during the stated hours. Hence it is manifest that the ordinance of October 4, 1955 is void. We do not need to consider the irregularity of the proceedings leading up to that ordinance. It was invalid because in conflict with and unauthorized by the 1954 Act.

III.

The next question is whether the petition for a writ of prohibition was properly brought against the City of New Albany, or whether the police justice of the city was a necessary party to the suit assuming he was not made a party. In Glover v. City Council of Columbus, 1923, 132 Miss. 776, 96 So. 521, 522, the Court summarized a rule which was applied prior and subsequent to that time: 'It is not necessary that the tribunal against whom the writ is sought should be a judicial tribunal. Its...