Ford v. Easterling, Justice of the Peace

• Citation: 184 So. 153,183 Miss. 575
• Decision Date: 24 October 1938
• Docket Number: 33250
• Court: United States State Supreme Court of Mississippi
• Parties: FORD v. EASTERLING, JUSTICE OF THE PEACE, et al

184 So. 153

183 Miss. 575

FORD v. EASTERLING, JUSTICE OF THE PEACE, et al

No. 33250

Supreme Court of Mississippi

October 24, 1938

Suggestion Of Error Overruled November 14, 1938.

(In Banc.)

1 PROHIBITION.

A judgment, denying writ of prohibition to prevent enforcement of county board's ordinance, prohibiting sale of beer within 1,500 feet from church in unincorporated village, as to respondent justice of the peace, and sustaining demurrer to petition for writ as to such board and sheriff, affirmed by divided court.

2 PROHIBITION.

Ordinance of board of supervisors prohibiting sale of beer and wine within 1,500 feet of church in unincorporated village held not unreasonable.

HON. W J. PACK, Judge.

APPEAL from the circuit court of Jones county, HON.W. J. PACK, Judge.

Proceeding by O. J. Ford for a writ of prohibition against George Easterling, Justice of the Peace of District No. 5 of Jones County, and the members of the Board of Supervisors and sheriff of such county, to prevent enforcement of an ordinance of such board prohibiting the sale of beer within certain territory in the unincorporated village of Moselle. From a judgment denying the writ as to respondent justice and sustaining a demurrer to the petition as to respondents board and sheriff, petitioner appeals. Affirmed by divided court.

Affirmed.

Martin & Farr, of Prentiss, for appellant.

If we understand the law, the board of supervisors had no police powers in the matter unless it were a reasonable exercise of the delegated power under Sec. 22 (b) of Chapter 171, Laws 1934.

City of Hazlehurst v. Mayes, 96. Miss. 656, 51 So. 890.

The court will understand, of course, that we are not here attacking the constitutionality of Sec. 22 (b) of the Beer Act. We are simply attacking this ordinance as an arbitrary and unreasonable exercise of the powers given the board of supervisors under Sec. 22 (b); that under the facts in this case this ordinance is unreasonable and void; that the legislature did not intend that the board of supervisors could run a man off the main street of a town in the exercise of a duly lawful business.

Fitzhugh v. City of Jackson, 132 Miss. 585, 97 So. 90; Dart v. Gulfport, 147 Miss. 534, 113 So. 441; Wolff Packing Co. v. Court Industrial Relations of Kansas, 267 U.S. 552, 45 S.Ct. 441, 69 L.Ed. 785.

We take the position that when beer is sold on the main street of a town under Chapter 171, Laws 1934, that before the board of supervisors can under Sec. 22 (b) of the act zone a rural area in which there is a defined town, so existing for years, that this beer business must be in such close proximity and further there must be facts shown that it is a disturbing element to that particular church or school. It would all depend upon the circumstances. No pleas were filed in this case and the facts of the petition show that there was no such conditions existing here as would warrant the exercise of this power.

State of La. ex tel. Galle v. City of New Orleans, 36 So. 999; Bonnett v. Vollier, 136 Wise. 193, 116 N.W. 885; Lawton v. Stelle, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385, 48, L.R.A. 775; State v. Pomerov. 68 Wash. 389, 123 P. 514, 39 L.R.A. (N.S.) 615; White v. Pittsburgh, 287 Pa. 259, 134 A. 409, 53 A.L.R. 1215.

If this ordinance here is valid, then it forces these petitioners to move out of the business section of Moselle and into the residential district if they wish to continue. The ordinance discriminates against petitioners for the reason one could have a filling station and beer stand in the residential district and thus through political chicanery run petitioners from the main street of a town, provided there is a church anywhere near.

The Legislature of Mississippi, in the exercise of its police power, has said, by Chapter 171, Laws 1934, that beer and wine of the staled alcoholic content are not inimical to the welfare, health, morals and safety of the people, and they meant to give boards of supervisors power in this matter of zoning only when these beverages were sold so near to churches and schools and in such manner and under such circumstances as would imperil the public morals, health and safety of the people and it was never the intent of the legislature for these boards to exercise this great and delicate power arbitrarily and unreasonably.

Desporte v. City of Biloxi, 136 Miss. 542, 100 So. 387.

We cite a few cases showing how close to churches and schools many ordinances have provided for sales of intoxicants or hard liquors, while it is beer we are dealing with in the case at bar.

Trustees of Warren St. Chapel v. Bd. of Excise Comrs., 56 N.J.L. 411, 96 A.L.R. 775; State v. Greenway, 61 N.W. 239; People v. Macy & Co., 5 A.D. (N.Y.) 66; People v. Christian Clausen, 5 N.Y. App. 441; In re Liquor Locations, 13 R.I. 733; Rice v. License Comrs., 36 R.I. 50; People v. Schneider, 170 Mich. 150, 135 N.W. 973; State v. Galle, 67 L.R.A.

Prohibition is the proper remedy.

Alexander v. Graves, 173 So. 417; Board Sup. v. Iron Co., 114 Miss. 274, 75 So. 117; Anderson v. School Board, 164 Miss. 646, 146 So. 134; Bd. of Suprs. v. Melton, 123 Miss. 615, 86 So. 369; Amite Co. v. Reese, 143 Miss. 880, 108 So. 439; Bd. of Suprs. v. Stephenson, 130 So. 684; Ex parte Fritz, 86 Miss. 221; 50 C. J. 692, sec. 87; Crittenden v. Booneville, 92 Miss. 277. 45 So. 723, 131 Am. St. Rep. 518; Donovon v. Mayor and Council of Vicksburg, 29 Miss. 247; Crisler v. Morrison, 57 Miss. 791; 50 C. J., pages 682, 683, sec. 56, and page 685; 22 R. C. L., sec. 1; 111 Am. St. Rep. 935; 84 California 327, 18 Am. St. Rep. 192, 24 P. 121; People v. Dist. Court, 26 Colo. 386, 58 Pac, 604.

W. A. Beard, Jr., and F. Holt Montgomery, both of Laurel, for appellees.

It is the appellees' position that prohibition does not lie in this case for the reason that appellant had adequate remedy in ordinary course of judicial procedure.

Crittenden v. Town of Booneville, 45 So. 723; Lemon v. Payton, 64 Miss. 161; Blount v. Kirby, 178 So. 591.

It is fundamental that prohibition is an extraordinary legal writ "to prevent the exercise by a tribunal possessing judicial powers of jurisdiction over matters not within its cognizance, or exceeding its jurisdiction in matters of which it has cognizance."

22 R. C. L., pages 2 and 3; Barnes v. McLeod, 165 Miss. 437, 140 So. 740.

It goes without saying that the board of supervisors was not exercising judicial powers over matters not within its cognizance, and the appellant had ample remedy by appeal if he was injured by said board's exceeding its jurisdictional power. The sheriff not being in tribunal, certainly not be made a respondent to a writ of prohibition. Therefore, we submit that the court's act. in dismissing the writ as to the board of supervisors of Jones county and the sheriff thereof was in conformity with the well settled law in this matter.

Argued orally by G. L. Martin, for appellant.

Ethridge, J., McGehee, J., Griffith, J., Anderson, J., dissenting.

OPINION

Ethridge, J.

The appellant O. J. Ford, filed a petition for a writ of prohibition against Geo. Easterling, Justice of the Peace of District No. 5 of Jones county, the members of the Board of Supervisors of the county, and C. H. Thompson, Sheriff, alleging that the Board of Supervisors passed an order or ordinance reciting that certain territory in the unincorporated village of Moselle was "a residential section in which are located several churches, and that it will promote the public health, morals and safety for the hereinafter described territory to be zoned against the sale of beer so as to prohibit the sale of said beer within said territory. It is hereby ordered and there is hereby zoned against the sale of beer and wine and the sale of beer and wine is hereby prohibited at all times in the following described territory lying in the first judicial district of Jones county, Mississippi, to wit: All that territory at Moselle, First District, Jones county, Mississippi, which lies within 1500 feet of any school or church."

The petitioner alleged that he was engaged in the sale of beer in the business district of the town of Moselle, an unincorporated village of 204 inhabitants--larger than some incorporated towns--and which has been in existence for more than forty years; that the town has a main street facing the east or business section, running approximately north and south; that east of Main street and parallel thereto, or approximately so, is the N. O. & N.E. Railroad tracks, with its depot; that farther east of the railroad, and facing west, is a church; that the town of Moselle is not a rural area; that this church is situated on the outskirts of the town; that Main street has been recognized for many years as the business district of said town, being so regarded long before the church, east of the business section, was built that the said town was laid off in business and residential districts, each separate from the other; that petitioner's place of business is located near the center of Main street, which is the only business street in the town, and about 250 yards by direct line from the nearest church, and about 1200 to 1400 feet from it by the usual and ordinary passway used in going to and from the church. Petitioner states that religious services are held only once a month, and is in nowise interferred with by his place of business; that there are other places of business nearer the particular church than his; that his place is not in the residential section of the town, there, being no residences between the business houses on Main street, and the depot is between his place and the church; and that he has at all times conducted his business in a decent and legal manner, at no time allowing any...