State Ex Rel. Daniel v. John P. Nutt Co. Inc

• Decision Date: 23 November 1935
• Docket Number: No. 14179.,14179.
• Parties: STATE ex rel. DANIEL, Atty. Gen. v. JOHN P. NUTT CO., Inc., et al.
• Court: South Carolina Supreme Court

185 S.E. 25

STATE ex rel. DANIEL, Atty. Gen.
v.
JOHN P. NUTT CO., Inc., et al.

No. 14179.

Supreme Court of South Carolina.

Nov. 23, 1935.

[185 S.E. 26]

[COPYRIGHT MATERIAL OMITTED.]

[185 S.E. 27]

Original action by the State, on the relation of John M. Daniel, Attorney General, against the John P. Nutt Company, Inc., and others.

Judgment in accordance with opinion.

Certiorari denied, 56 S.Ct. 668, 80 L.Ed.

John M. Daniel, Atty. Gen., J. Ivey Humphrey and M. J. Hough, Asst. Attys. Gen., and Eugene S. Blease, of Newberry, for plaintiff.

Nathans & Sinkler, of Charleston, Jefferies & McLeod, of Walterboro, H. P. Willimon, of Greenville, Williams & Busbee, of Aiken, C. T. Graydon, of Columbia, and John S. Bowman, of Orangeburg, for defendants.

G. DUNCAN BELLINGER, Acting Associate Justice.

This action is brought by the Attorney General in the name of the state, asking that this court adjudge the act of 1933, regulating motor vehicles, to be valid, that the defendants be enjoined from prosecuting thirteen separate actions commenced in the courts of common pleas for five different counties of the state to enjoin the enforcement of the act, and, further, that the defendants be enjoined from operating motor vehicles in violation of the act.

[185 S.E. 28]

The act was approved April 28, 1933 (38 St. at Large, p. 340), and, as slightly amended by the act approved March 10, 1934 (38 St. at Large, p. 1311), regulates all motor trucks, except those primarily designed for passenger transportation; limits the gross weight of any unit (truck, trailer, or combination) to 20, 000 pounds, the height to 12½ feet, the width to 90 inches, and the length to 35 feet, all including load; it forbids the operation of any separate four-wheel trailer on any highway, and reduces the speed limits of motor trucks; it imposes special authority and duties upon the state highway department, county and municipal road authorities, as well as all law-enforcement officers, with reference to the enforcement of the act. The act became effective upon its approval by the Governor, except as to motor vehicles upon which the annual registration fee required by the law of this state had been paid prior to the approval of the act; as to these, it became effective on December 31, 1934.

The thirty-four defendants had instituted thirteen separate actions in the courts of common pleas of five different counties. These actions were all commenced in December, 1934, and at later dates--all more than nineteen months after the act had been approved. The sheriffs and law enforcement officers of the respective counties and municipalities, as well as officers and law enforcement agents of the state highway department and the Railroad Commission, were named as parties defendant to these actions. The object of the actions was to secure interlocutory and permanent injunctions against the enforcement of the act, so as to protect the defendants in the continued operation of the 221 motor vehicles that defendants owned and were regularly operating over the highways of this state in violation of the act. In all of these actions interlocutory injunctions or temporary restraining orders were procured on the ex parte application of defendants as plaintiffs therein. In some instances, bonds were required; in other instances, they were not. But the parties enjoined in no instance could recover damages under the conditions of the bonds, and the bonds did not secure the state in any fines for violations of the statute committed by defendants under the protection of the injunctions.

Defendants move to strike various allegations from the complaint on the ground that they state conclusions of law and are irrelevant. The motion to strike goes to the extent of a demurrer; that is, the defendants contend that, if the motion be granted in toto, the allegations remaining in the complaint do not state a cause of action. The complaint must be considered with reference to the subject-matter embraced. It necessarily describes the actions commenced by defendants and shows the contentions made by defendants in those actions, in order to establish that all of the actions involved identical questions and had a common purpose, and in order to establish, further, that all of the constitutional questions raised by defendants in those actions had already been decided adversely by controlling authority. The jurisdiction of this court is invoked in part to avoid a multiplicity of suits, and in part to aid in the enforcement of an important criminal statute. The allegations of the complaint are pertinent and proper from this viewpoint. They state relevant facts, because the relevant facts here have a legal color, and the statement of them is necessarily made in the form of legal conclusions. Plaintiff concedes that in some minor instances the complaint is possibly subject to the criticism directed against it. But to sustain the motion to strike in these minor details would not avail defendants, as the remaining allegations state a good cause of action.

Defendants next contend that this court cannot exercise its original jurisdiction in this case because the actions pending in the courts of common pleas involve the same parties and the same cause of action, and further contend that, if this court has jurisdiction, it should not be exercised because of comity towards the courts of common pleas, and that it should leave the actions to proceed in those courts.

But there is a difference as to the parties to the actions instituted by defendants in the courts of common pleas and the parties to this action. Neither the state nor the Attorney General was a party to any of the actions instituted by defendants. State ex rel. Jernigan v. Stickley, 80 S.C. 64, 61 S.E. 211, 128 Am.St.Rep. 855, 15 Ann.Cas. 136. The state is the party plaintiff to this action. The parties defendant to the actions commenced by the defendants are not parties to this action, and all parties defendant to this action were not parties to any one of the actions pending in the courts of common pleas. Likewise, this action is essentially different from the actions commenced by defendants. The questions involved here

[185 S.E. 29]

are not the same as the questions...