Crittenden v. Town of Booneville

• Decision Date: 02 March 1908
• Citation: 45 So. 723,92 Miss. 277
• Court: Mississippi Supreme Court
• Parties: MACK CRITTENDEN v. TOWN OF BOONEVILLE

45 So. 723

92 Miss. 277

MACK CRITTENDEN v. TOWN OF BOONEVILLE

Supreme Court of Mississippi

March 2, 1908

March 1908

FROM the circuit court of Prentiss county, HON. EUGENE O. SYKES Judge.

Crittenden appellant, was plaintiff in the court below; the town of Booneville appellee, was defendant there. The suit was by writ of prohibition. From a judgment denying plaintiff relief he appealed to the supreme court. The facts are fully stated in the opinion of the court.

Reversed.

Leftwich & Tubb and E. C. Sharp, for appellant.

Strange & Cunningham, for appellee.

[No synopsis of the briefs of counsel is given in this case because of the reporter's inability to find them.]

Argued orally by George J. Leftwich, for appellant and by George H. Strange, for appellee.

OPINION

MAYES, J.

On the 3rd day of August, 1907, Crittenden prepared to open a pool room in the town of Booneville. In order to carry out his purpose he procured three pool tables and rented a house in the town of Booneville for six months at a rental of $ 20 per month in which to begin his business. Before commencing to operate his pool room he applied for and procured a privilege license both for the state and county, and also for the municipality, paying therefor to the state and county and municipality, the sum of $ 90. Soon after he began operation under his license--that is to say, about the 29th day of August, 1907--the mayor and board of aldermen convened in special session and, among others, passed the following ordinance, viz.:

"An ordinance to be entitled 'An ordinance to suppress pool tables within the corporate limits of the town of Booneville.'

"Section 1. Be it ordained by the mayor and board of aldermen of the town that it shall be unlawful for any person or persons to operate, within the town of Booneville, any pool table for the entertainment of the general public with or without fees for same.

"Sec. 2. Any person violating the above section shall be fined in the sum of $ 25 for each offense, and each day on which the same is open shall constitute a separate offense.

"Sec. 3. This ordinance shall take effect and be in force from and after its passage."

The town of Booneville is operated under the Code chapter on "Municipalities." Immediately after the passage of this ordinance, Crittenden was arrested and fined $ 25 for running a pool table in violation of same. He appealed to the circuit court, and again opened his pool room, and was again arrested and fined on five different days. In fact, after the passage of the ordinance, every time he undertook to conduct his pool room he was arrested and fined. Afterwards he procured a writ of certiorari from the circuit judge of the district, commanding the mayor and board of aldermen to certify the ordinances and all proceedings thereunder to the circuit court. At the same time the certiorari was issued, the judge also, on the showing made by Crittenden, issued a writ of prohibition against the mayor, prohibiting him from further arresting or molesting the petitioner or interfering with his business; it being alleged in the petition filed by Crittenden that the ordinance was void and that the mayor was without jurisdiction to impose these penalties. In each and every conviction of Crittenden under these ordinances, he appealed his cases to the circuit court; but each and every time he opened his pool room the municipal authorities rearrested him and imposed another fine. Afterwards, on motion of the town of Booneville, the order granting the writ of prohibition was vacated by the court, and an appeal to this court was granted from the order vacating the writ of prohibition.

There are two questions involved in this case, and only two: First. Did the mayor and board of aldermen have the power to pass this ordinance? Second. Is this a case where it was proper to grant a writ of prohibition? Counsel for appellant raise some question as to whether or not the ordinance was passed as provided by law; but we do not deem it necessary to discuss this, since our decision will be based upon the two propositions heretofore announced. It has been decided in the cases of Blewett v. State, 34 Miss. 606, and Wortham v. State, 59 Miss. 179, that there is nothing wrong per se in the operation of a pool room. The mere act of playing pool or billiards may be, and often is, a harmless and innocent amusement. It is true that many abuses of this amusement may be indulged in, just as it is true of any other place of amusement; but it is to be remembered that the operation of a billiard table or pool room is not wrong in itself, is not violative of morals necessarily, and is not denounced by the law; on the contrary, it is legalized. Under Code 1906, § 3778, a privilege tax is imposed upon this business, just as it is on many other kinds of business mentioned in chapter 114 of the Code of 1906 on the subject of privilege taxes. Therefore, to begin with, we have a law providing for the legalization and operation of billiard and pool tables, etc., and providing a privilege tax for the operation of these places of amusement. Nowhere under the law are they prohibited.

It is true that Code 1906, § 3893, provides as follows, viz.: Unlawful Business Not Legalized.--Nothing in this chapter, nor the payment of any privilege tax herein provided, shall legalize any business, employment, transaction, article, or device of any kind or the operation thereof, in violation of any statute of the state or the ordinances of any municipality therein now existing or that may be hereafter adopted." By this section it is provided that the payment of a privilege tax shall not legalize any business, employment, transaction, etc., or device of any kind, or the operation thereof, in violation of any statute of this state, or the ordinances of any municipality therein now existing or that may be hereafter adopted. But this does not give the municipality the power to pass any ordinance prohibiting the operation of any business which is allowed to be conducted under the laws of this state, unless that business is so conducted as to become a nuisance, or is one which it is given the power to prohibit. If a party having obtained a license to operate a pool room so conducts that business as to become a nuisance, or so conducts the business as to warrant the municipality in suppressing it, because it is operated in contravention of the laws of the state or the good morals of the community, then, under the section, the payment of the privilege tax could not operate to prohibit a municipality from the exercise of its police power to suppress. But this section of the statute was never intended to give the municipality the right to pass an ordinance prohibiting the operation of a legitimate business, legalized under the statute, except for the reasons and in the way mentioned above. Under Code 1906, § 3340, the power is given the municipality "to regulate, suppress, and impose a privilege tax in all circuses, shows, theatres, billiard tables, pool rooms," etc. The power thus given to regulate and suppress does not carry with it the power to prohibit, unless it is in the exercise of the police power to suppress a nuisance. The municipality may regulate; that is to say, it may provide the hours during which these places may keep open, etc., and if the conduct of the owner is such as to warrant so doing, or if the business is conducted in a boisterous or immoral way, so as to become a nuisance, it may suppress altogether. But the power to regulate and suppress when the business has become a nuisance is one thing, and the power to pass a general ordinance prohibiting the operation of a pool room, which has been legalized by the statute, is another thing. The first alone it has the power to exercise.

The ordinance passed by the municipality is a general ordinance prohibiting the operation of all pool rooms or billiard tables in the town of Booneville. It is a destruction of property right, and a void ordinance. The municipality is not proceeding against this particular pool room as a nuisance; but the ordinance is general in its application, and prohibits any and all pool rooms in the town of Booneville. It may be that all pool rooms should be suppressed; but this, in the present attitude of the law, is a matter which rests with the legislature, and a general ordinance cannot be passed by any town or municipality prohibiting the operation of all pool rooms. The powers delegated to municipalities by the legislature are intended to be exercised in conformity to, and consistent with, the general laws of the state. Thus, in Code 1906, [therefore] 3319, the power is given to suppress hog pens, etc.; but it was held in the case of Comfort v. City of Kosciusko, 88 Miss. 611, 41 So. 268, that this power did not include the right to prohibit, by general ordinance, the keeping of hogs in a municipality or the erection of hog pens, as the municipality could only suppress when they became a nuisance, but so long as they were not so it was not intended that the municipality should have the power to prohibit. By-laws of a municipality must be reasonable and in keeping with the general law. The charter powers of a municipality are to be construed most strongly against a right claimed by it and not clearly given by the statute. When there is any doubt as to whether or not a municipality has the power to do or not to do a particular thing, this doubt should be solved against its charter powers, unless it is plainly manifest that the power is confided to the municipality to act. 20 Am. & Eng. Ency. of Law (2d ed.), 1140.

We now come to the question of whether or not a writ of prohibition lies. A writ of prohibition is an extraordinary writ, and is proper to be...