Miller v. State

• Decision Date: 04 June 1917
• Court: Mississippi Supreme Court
• Parties: MILLER v. STATE

75 So. 549

114 Miss. 713

MILLER v. STATE

Supreme Court of Mississippi

June 4, 1917

March 1917

Division A

APPEAL from the chancery court of Hinds county, HON. O. B. TAYLOR Chancellor.

Suit by the state of Mississippi and Hinds county, upon the relation of Stokes v. Robinson against Clara Miller. Demurrer to bill overruled and defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed and remanded.

J. A Teat and Chalmers Potter, for appellant.

The chancery court is given jurisdiction of suits of this character on the fundamental ground of abating a nuisance. If no nuisance exists, there is no nuisance to abate, this proposition is so self evident that it needs no argument. The contentions set up in the brief of appellee are directly in conflict with the case of the State of Mississippi v. Marion Marshall, 100 Miss. 626, and until the court shall overturn both the fundamental principles therein involved and this strong and well reasoned opinion, the argument of appellee is not applicable or available.

Article 147 of the Constitution of the state of Mississippi, 1892, is sought as shelter by appellee under the mistaken view of its meaning. That section relates to judgments and decrees as to jurisdiction alone. It does not assist one in pleading a case. The only application which article 147 of the Constitution has upon the hearing of this cause in this court is, in the event of a reversal of this suit, then to remand it to the proper court.

If the complainant has stated a cause of action in his bill, under article 147 of the Constitution the trial court is not held to account for an error of jurisdiction upon review here. But appellee wants the trial court to disregard the distinguishing lines of demarcation between law and equity. The constitutional scheme by which suits may not be defeated on the ground of jurisdiction is an admirable one, but its beneficent provisions are far from either laxity or uncertainty by trial courts. No one would think a circuit judge would entertain a bill for divorce or a chancellor a suit for replevin. The dignity, propriety and integrity of the courts would not permit of indelicate assumption of jurisdiction. This sort of thing was never entertained by the framers of the Constitution and has not been sanctioned by the supreme court, but the whole scheme of the Constitution is in aid of and for the purpose of assisting the trial courts in an earnest, faithful and patriotic effort to administer the laws of the land, as best they may in all matters, faithfully cleaving to the well marked lines of jurisdiction, and adhering to the broad distinctions which have been followed with wholesome results throughout our well developed jurisprudence.

An argument that overlooks, or fails to consider, these guardrails of pleading and procedure cannot be viewed with favor or greeted with approval. No one desires a confusion of pleadings, a mongrel born both to law and equity. Such is mischievous and productive of no good.

The bill does not charge that a nuisance exists, and that being a prerequisite of the statute for equity jurisdiction, it follows necessarily that the chancery court is without jurisdiction in this suit.

Counsel for revenue agent, appellee, contends that the broad, indefinite, uncertain and vague allegations in complainant's bill are sufficient allegations to put the defendant upon notice of the cause of action relied upon to inflict the penalties. The charging clause of said bill is as follows: "That said defendant, Clara Miller, alias Clara Bray, did during the year 1915 and during the month of January, 1916, unlawfully sell and give away and permit to be sold and given away at said defendants place of business in the Town of Edwards, Mississippi, vinous and spiritous liquors. These sales were made to numerous persons and were all in violation of the laws of the state of Mississippi which forbid the sale of said liquors."

Now does the complainant rely upon the acts of defendant in selling or giving away whiskey, or upon acts of some other persons, whom the defendant permitted to sell or give away whiskey. Is the defendant put upon notice of whether or not it is her act which it is sought to penalize her for?

This is not a single act relied upon, isolated by circumstances and conditions, as a homicide, but is the arraignment of the defendant or other unnamed persons for whose conduct she is held accountable, not upon an isolated fact or circumstance, reasonably certain by the existence of it, but for a period of time running through thirteen months. This allegation if designedly used in the broad and comprehensive terms it contains, would deprive the defendant of the notice sufficient to prepare her case for trial, or upon the other hand, if the broad and uncertain allegations are inaccurately pleaded, the same result must follow.

For these reasons, which appear to us to be true devotion to the law itself, far removed from the controversies of individuals, penalties, and commissions, we respectfully submit that the demurrer should be sustained and the suit dismissed and the plaintiff bring his suit according to law, and if mistaken in this view, then that the demurrer should be sustained and the suit remanded to the circuit court below.

Virgil Howie, for appellee.

We understand from the brief for appellant that only two points of the demurrer are being seriously insisted on under this appeal. These are stated in the opening paragraph of counsel's brief.

In the first place it is insisted that there is no allegation of a nuisance in the bill. We cannot understand why counsel should, or could, have overlooked so completely the allegation contained in the amendment to the bill which was filed before their demurrer and which is a part of this record. Counsel who prepared the bill did not then think and does not now think that the amendment was necessary. It has always been our understanding that in order to allege fraud nusiance and all such, it was necessary to state in so many words that certain things constituted a nuisance or fraud. That would be the conclusion of the pleader, as it is necessary to allege the facts which constitutes the thing which the law defines a fraud or nuisance. That was what was done in the original bill. The bill as originally written did not state that the defendant and her place of business was a nuisance, in words naming it, but did state that she was running a business in the town of Edwards and was selling vinous and spiritous liquor. The statute says what this shall be called, namely, a nuisance. It was not necessary for the bill to state that it was called a nuisance. It stated the facts which the statute provided should be designated as a nuisance.

In the second place and in further answer to this contention, we contend that the chancery court has jurisdiction of the case even though there was no allegation of nuisance whatever. By reference to the act by which this became a law, chapter 134, Acts 1910, it will be observed that the first section provides for the penalty herein sued for. The first part of the second paragraph provides that the "chancery court shall have concurrent jurisdiction with courts of law to entertain suits under the preceding section for the enforcement thereof." This is clear cut vesting of jurisdiction in the chancery court. Further on in the last section a further provision is inserted. It says: "And the chancery court shall have authority to suppress as a nuisance any place of business." There is no way of mistaking what is meant even on a casual reading. There are two provisions in the same section. One says that courts shall have jurisdiction to collect the penalty, five hundred dollars; the other relates to the suppressing of the business. There can be no doubt about what was intended; it was never thought that in order to collect the penalty a proceeding against a nuisance was necessary, or that the two should be inseparable. The purpose was to vest the chancery court with jurisdiction to collect the penalty; a proceeding against a nuisance was necessary, or that the two should be inseparable, the purpose was to vest the chancery court with jurisdiction to collect the penalty, or, suppress the nuisance, or both as the necessities of the case might arise. State of Mississippi v. Marion Marshall, 100 Miss. 626, 56 So. 793.

This case cites the opinion in the case of Grenada Lumber Company v. State, 54 So. 8, to sustain its holding. In this connection the court says: "Jurisdiction having been conferred on the...