Knight v. Johns

• Decision Date: 02 November 1931
• Docket Number: 29495
• Citation: 161 Miss. 519,137 So. 509
• Court: Mississippi Supreme Court
• Parties: KNIGHT, CHIEF OF POLICE, v. JOHNS

137 So. 509

161 Miss. 519

KNIGHT, CHIEF OF POLICE, v. JOHNS

No. 29495

Supreme Court of Mississippi

November 2, 1931

Division A

1 INJUNCTION.

Injunction will lie to restrain prosecutions in cases wherein exercise of property rights is sought to be interfered with by repeated prosecutions under void ordinance.

2. MUNICIPAL CORPORATIONS.

Municipalities have only such authority to adopt ordinances as is expressly or impliedly given by state.

3. MUNICIPAL CORPORATIONS.

Ordinances must be reasonable, consistent with general law, and not destructive of lawful business.

4. MUNICIPAL CORPORATIONS.

Ordinance forbidding barber shops to open before 7:30 a. m. or to remain open after 6:30 p. m., held unreasonable.

5. MUNICIPAL CORPORATIONS.

Ordinance forbidding barber shops to open before 7:30 a. m. or remain open after 6:30 p. m. could not be held valid on ground it was designed to fix reasonable time for inspecting barber shops (Code 1930, sections 2396, 2417, 4891).

6 INJUNCTION.

Injunction will not lie for release of person in custody on criminal charge.

7 INJUNCTION.

Decree enjoining defendant from continuing to arrest complainant for violating ordinance, held erroneous in releasing complainant from custody, where he had been released on his own recognizance.

HON. R E. JACKSON, Chancellor.

APPEAL from chancery court of Coahoma county HON. R. E. JACKSON, Chancellor.

Suit by J. J. Johns against L. H. Knight, Chief of Police of the City of Clarksdale. From the decree, defendant appeals. Reversed and rendered.

The sections of the ordinance referred to in the opinion follow:

"ORDINANCE.

"SECTION I.

"Be it ordained by the Board of Mayor and Commissioners of the City of Clarksdale, Mississippi, that for the purpose of promoting the public health and general welfare of the said city that it shall be and is from and after this date unlawful for any barber shop in the said city to open for business before seven-thirty in the forenoon and/or to remain open for business after the hour of six-thirty in the afternoon, except that on week days which immediately precede a holiday, said barber shops may remain open for business until nine o'clock P. M.

"SECTION IV.

"That the City Health Officer be and is authorized and empowered to visit and enter any and all barber shops for the purpose of inspecting the same and ascertaining whether the said shops or either of them are complying with the rules and regulations of the State Board of Health pertaining to barber shops which said rules and regulations are hereby adopted as a part of this ordinance.

"SECTION V.

"That it is hereby declared the purpose of the said board in prescribing the hours of opening and closing, to promote the general health and sanitary conditions of the said shops, it being apparent that a better inspection may be had and made between the hours prescribed than at any other time.

"SECTION VI.

"That any person or collection of persons violating any of the provisions of this ordinance shall be fined not more than one hundred ($ 100.00) Dollars and be imprisoned for not more than thirty days."

Reversed and decree here for the appellee.

J. M. Talbot, of Clarksville, for appellant.

There were no grounds for a habeas corpus proceeding.

Section 1914, Code 1930; Ex parte Grubbs, 79 Miss. 358, 30 So. 708; Ex parte Smith, 79 Miss. 373, 30 So. 710.

The courts of equity concern themselves only with matters of property and with the maintenance of civil rights and do not interfere with issues that are purely personal or political, or with crimes.

Griffith's Chancery Practice--Injunction Par. 435.

The chancery court had no jurisdiction whatever in this cause. There are no property rights involved, in any proper sense of the word "property." The constitutionality of the ordinance if it is assailed, can be determined in the law court. Whether, if constitutional, the appellant is guilty or not, is a question exclusively of criminal jurisdiction, with which equity has nothing to do.

Pleasants v. Smith, 90 Miss. 440, 49 So. 437; Paulk v. Sycamore, 104 Ga. 24, 30 S.E. 417, 41 L. R. A. 772, 69 Am. St. Rep. 128; Crighton v. Dahmer, 70 Miss. 602, 13 So. 237.

A municipality has the power to legislate by ordinance and enforce the same, any business or enterprise within the corporate limits of the municipality, dealing with the preservation of either health or property.

Sections 2417, 2396, 489, Code 1930; Hawkins v. Hoye, 108 Miss. 282, 66 So. 741; Blue v. Beach, 155 Ind. 121, 56 N.E. 89, 50 L. R. A. 64, 80 Am. St. Rep. 195; Vicksburg v. Mullane, 106 Miss. 199, 63 So. 412.

The police power of municipal corporations extends to all matters affecting peace, health, morals, comfort, convenience and safety of its citizens.

McQuillan Municipal Corporations (1 Ed.), section 889, and sections 894, 899, and 964.

A city has the right to enforce an ordinance making it unlawful to keep open certain places of business covered by the ordinance after specified hours.

38 N.H. 526; Butte v. Paltrovich, 30 Mont. 18, 104 Am. St. Rep. 698; Churchill v. Albany, 65 Ore. 442, Ann. Cas. 1915A, 1094; Porter v. Water Valley, 70 Miss. 560, 12 So. 828; Ann. 55 A. L. R. 242.

The power of the state to regulate the hours of employment has been upheld.

State v. Newman Lumber Co., 102 Miss. 802, 59 So. 923, 45 L. R. A. (N. S.) 851; Buckeye Cotton Oil Co. v. State, 103 Miss. 767, 60 So. 775.

The power of a city by ordinance, to regulate the hours of opening and closing barber shops has been upheld.

Falco v. Atlantic City et al., 122 A. Rep. 610; Barbier v. Connolly, 13 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923; Hing v. Crowley, 113 U.S. 703, 28 L.Ed. 1145.

G. E. Williams, of Clarksdale, for appellee.

Into every charter power given a municipality to pass by-laws or ordinances there is an implied restriction that the ordinances shall be reasonable, consistent with the general laws, and not destructive of lawful business.

Johnson v. Philadelphia, 94 Miss. 34.

An ordinance requiring every person conducting a legitimate barber shop business in a town, except a few specially favored classes, to close their places of business at 6:30 P. M. cannot in any manner, directly or remotely, even tend to promote public health, public morals, the public safety, or the good order and peace of the community; but on the contrary, we think that the provision of the ordinance in question, for a violation of which the petitioner is held in custody, is an unwarranted governmental interference with the personal rights of the class and is void.

Ex parte Harrell, 79 So. 166; Johnson v. Philadelphia, 94 Miss. 34; Spann v. Gaither, 136 A. 41, 50 A. L. R. 620.

The police power of the state extends only to such measures as are reasonable, and the general rule is that all police regulations must be reasonable under all circumstances. . . . The validity of a police regulation therefore primarily depends on whether under all the existing circumstances the regulation is reasonable or arbitrary and whether it is really designed to accomplish a purpose properly falling within the scope of the police power.

6 R. C. L. 236.

A law which assumes to be a police regulation, but deprives the citizen of the use of his property under the pretense of preserving the public health, safety, comfort or welfare, when it is manifest that such is not the real object and purpose of the regulation, will be set aside as a clear and direct invasion of the right of property without any compensating advantages.

Fitzhugh v. Jackson, 132 Miss. 585, 33 A. L. R. 279.

The mere assertion by the legislature that a statute relates to the public health, safety or welfare does not in itself bring that statute within the police power of the state; for there must be obvious and real connection between the actual provisions of a police regulation and its avowed purpose, and the regulation adopted must be reasonably adapted to accomplish the end sought to be attained.

6 R. C. L. 237.

Persons engaged in the operation of barber shops are carrying on a perfectly lawful business. It is not in any sense of the word a noxious business. If the barber shops are closed at 6:30 o'clock in the evening and not permitted to open until next morning, there will a large and numerous class of citizens who cannot avail themselves of the service of barbers. The ordinances is therefore void, as being unreasonable, and it is discriminatory because it selects one particular lawful business that is in no wise noxious and requires those operating this business to close at a very early hour, but leaves unregulated as to hours of closing various other businesses.

Chaires v. Atlanta, 164 Ga. 755, 139 S.E. 559, 55 A. L. R. 230.

The great weight of authority and the better reasoned cases hold that, where a municipal ordinance is void and its provisions are about to be enforced, or are being enforced, any person who is injuriously affected thereby, either in his person or the use of his property, may go into a court of equity to have the enforcement of the ordinance stayed by injunction. It is immaterial that the...