Kennington-Saenger Theatres v. State ex rel. Dist. Atty.

• Decision Date: 12 June 1944
• Docket Number: 35366.
• Court: Mississippi Supreme Court
• Parties: KENNINGTON-SAENGER THEATRES, Inc., v. STATE ex rel. DIST. ATTY.

18 So.2d 483

196 Miss. 841

KENNINGTON-SAENGER THEATRES, Inc., v. STATE ex rel.

DIST. ATTY.

No. 35366.

Supreme Court of Mississippi

June 12, 1944

Green & Green, H. V. Watkins, and Ralph B. Avery, all of Jackson, Heidelberg & Roberts, of Hattiesburg, and Rosen Kammer, Wolf, Hopkins & Burke, of New Orleans, La., for appellant.

Watkins & Eager and W. C. Wells, all of Jackson, for appellee.

McGEHEE Justice.

The State, on relation of the District Attorney for the Seventh Judicial District of Mississippi, on September 16, 1942, gave the Circuit Court of the First Judicial District of Hinds County to understand and be informed by a proceeding in the nature of quo warranto that a judgment of forfeiture and ouster should be rendered against the appellant Kennington-Saenger Theatres, Inc., a Delaware corporation and that its right to exercise any of the franchises granted to it should be forfeited, because that, on each Sunday prior thereto, beginning with the 12th day of April, 1942, the said corporation had "in open defiance of law engaged in, shown forth, enacted and exhibited * * * interludes, farces, and plays, and other like shows, by exhibiting moving pictures thereof, * * *, for an admission price, * * * in express violation of Section 1133 of the Mississippi Code of 1930, Section 2370, 2 Mississippi Code 1942, * * * as interpreted by the Supreme Court of Mississippi, * * *; and has persistently refused to comply with the laws of the State * * *." Wherefore, the petitioner prayed judgment of forfeiture and ouster against the said corporation, and that its right to do business throughout the state be forfeited. After a hearing the jury rendered a verdict accordingly, but the court entered a judgment thereon to the effect that "the right and franchise of the Kennington-Saenger Theatres, Inc., defendant, to operate theatres and moving picture shows in the City of Jackson, Mississippi, upon the Sabbath Day be and is hereby cancelled and set to naught." From this judgment the appellant, Kennington-Saenger Theatres, Inc., prosecuted this appeal and the appellee has taken a cross-appeal, it being the contention of the appellee that if the judgment as rendered by the trial court was unauthorized under Chapter 59, Code of 1930, (Title 9, Chapter 2, Code of 1942), this court should on appeal enter such judgment as the trial court should have entered, that is to say, a judgment of forfeiture and ouster whereby the right and franchise of the said corporation to do business throughout the State would be forfeited.

We are of the opinion that the judgment as rendered was unauthorized for the reason that any action which seeks by quo warranto to forfeit the right and franchise of a corporation to do business throughout the state is one on behalf of the general public of the entire State and could be brought only by the Attorney General, as the chosen representative of the whole people. Nor did the limited character of the judgment eliminate the question of the court's want of jurisdiction to grant relief, since our Code chapter on quo warranto undertakes to cover the entire subject matter of forfeiture and ouster as to corporations doing business in this State and provides for the rendition of no such judgment as that here appealed from; and, moreover, the verdict of the jury, returned pursuant to a peremptory instruction for the State under the pleading and proof, did not warrant the entry of a judgment otherwise than in conformity therewith. It is not within the province of a trial court to limit the scope of its judgment in a quo warranto proceeding on account of the fact that the State has purported to appear through one legal representative rather than another. Then, too, a prayer for general relief pursuant to which a court of equity may grant such relief as to it may seem meet and proper, is unknown in a court of law and judgments rendered therein should substantially conform to the allegations of the pleading, the recovery sought, and the proof.

It was the duty of the trial court to determine in the outset the legal capacity of the District Attorney to appear for the State in seeking a state-wide forfeiture of the corporate rights and franchises of the appellant to do business anywhere within its domain. That this question should have been determined from the face of the proceeding itself cannot be successfully challenged. Capitol Stages, Inc., et al. v. State ex rel. Hewitt, District Attorney, 157 Miss. 576, 128 So. 759. Unless this officer had such authority, then the trial court was without jurisdiction to render any judgment that would be binding either on the State or the defendant, except a judgment of dismissal without prejudice to the right of the State to sue by its proper officer-the Attorney General. It was so held on the question of the Court's jurisdiction in the recent cases of State ex rel. v. Stewart, 184 Miss. 202, 184 So. 44, 46, 185 So. 247, and City of Natchez v. Craig, State Tax Com'r, 191 Miss. 567, 3 So.2d 837, 838, and in which former case the Court said: "The State could not be bound by an appearance in court on its behalf by an unauthorized official to any greater extent than an individual could be bound by the act of a person assuming to sue on his behalf without authority." And, in the case of Drummond v. State, 184 Miss. 738, 185 So. 207, 209, the Court announced the rule to be that: "The Supreme Court in all cases is bound to inquire into its own jurisdiction, and decline to exercise a power not conferred upon it by law. And, if the question of jurisdiction is not raised by either of the parties to the cause, it is the duty of the Supreme Court to raise it of its own motion." Therefore, it is immaterial whether the defendant specifically challenged by demurrer the legal capacity of the District Attorney to bring this proceeding for state-wide relief, since his right to do so goes to the very power and jurisdiction of the court to act at all in the premises.

As aptly stated in the case of Commonwealth, etc., v. American Baseball Club of Philadelphia, 290 Pa. 136, 138 A. 497, 500, 53 A.L.R. 1027, in regard to whether quo warranto was the proper remedy, "it is important at its threshold to consider who brought the proceeding. It was initiated by the Attorney General, the chief law officer of the commonwealth, and necessarily has behind it the approval of the state's highest executive officer, the Governor. The people's mandate to him in their fundamental law (Constitution, art. 4, § 2 [P.S.Pa.]) is: 'The supreme executive power shall be vested in the Governor, who shall take care that the laws be faithfully executed."' Likewise, Section 116, Constitution of Mississippi 1890, provides that: "The chief executive power of this state shall be vested in a governor * * *." Section 123 of said Constitution provides that: "The governor shall see that the laws are faithfully executed." To that end Section 173 of this Constitution provides that: "There shall be an attorney general elected at the same time and in the same manner as the governor is elected * *." The duties of the Attorney General were not prescribed by the Constitution, nor did it provide that they would necessarily have to be prescribed by the legislature. They existed at common law, as held in State v. Key, 93 Miss. 115, 46 So. 75; Capitol Stages, Inc., v. State ex rel., etc., supra. The creation of the office of Attorney General by the Constitution vested him with these common law duties, which he had previously exercised as chief law officer of the realm. And, in the case of Capitol Stages, Inc., v. State ex rel. Hewitt, District Attorney, supra [157 Miss. 576, 128 So. 764], this Court said: "As to all litigation, the subject-matter of which is of state-wide interest, the Attorney General alone has the right to represent the state." The question is therefore presented in the case at bar as to what is the "subject matter" of the present suit. It is not whether the defendant has violated the criminal laws within the Seventh Judicial District of Mississippi, but whether, because of such alleged violation, its right to do business throughout the state should be cancelled in accordance with the allegations and prayer of this quo warranto proceeding, and in compliance with the verdict of the jury in that behalf.

In the Capitol Stages, Inc., case, supra, the Court further said that at common law the Attorney General was "'the chief legal adviser of the crown, and was entrusted with the management of all legal affairs, and the prosecution of all suits, civil or criminal, in which the crown was interested' * * *; he had the power to control and manage all litigation on behalf of the state; * * *, and maintain all suits necessary for the enforcement of the laws of the state, the preservation of order, and protection of the public rights." The court then took cognizance of the fact that the office of District Attorney, which did not exist at common law, had been created by Section 174 of the same Constitution, which provided that his duties should be prescribed by the legislature. Then, notwithstanding that the legislature had by Section 1661, Code of 1906 (now Section 4363, Code of 1930, Section 3920, 3 Code of 1942), made it the duty of the District Attorney to appear in the Circuit Courts and prosecute all civil cases in which the state or any county in his district may be interested, and to institute and prosecute to final judgment any case in the name of the State against any person or corporation "for any violation of the constitution or the laws of this state in order to enforce any penalties, fines or forfeitures imposed by law in any court of his district having jurisdiction, with like effect as if the suit was instituted by the...