State v. Marshall

• Decision Date: 18 December 1911
• Docket Number: 15,093
• Citation: 100 Miss. 626,56 So. 792
• Court: Mississippi Supreme Court
• Parties: STATE OF MISSISSIPPI AND WARREN COUNTY v. MARION MARSHALL

56 So. 792

100 Miss. 626

STATE OF MISSISSIPPI AND WARREN COUNTY v. MARION MARSHALL

No. 15,093

Supreme Court of Mississippi

December 18, 1911

October, 1911

APPEAL from the chancery court of Warren county, HON. E. N. THOMAS Chancellor.

Suit by the state, on the relation of the attorney-general against Marion Marshall, with an attachment and seizure of intoxicating liquors in defendant's place of business seeking to have defendant's illegal sale of liquor suppressed as a nuisance, and for an injunction against the further conduct of the business and for a decree for penalties. On demurrer the attachment was dismissed and the property levied on released and the temporary injunction was modified. Both the state and the defendant appeal.

Reversed on direct appeal. Affirmed on cross-appeal.

Carl Fox, assistant attorney-general, for appellant.

The second section of chapter 134 of the Laws of 1910 provides that "The chancery court shall have authority to suppress as a nuisance any place of business where the preceding section is violated, and by proper judgments and orders, punish and restrain the violaters thereof." As this record stands, it is a fact that defendant did violate and was continuously violating section one of said act, and that his business was that of unlawful retailing vinous and spirituous liquors. The writ of injunction as first granted therefore, was the only proper writ under this law. It was the "place of business" which the act gave the chancery court "authority to suppress as a nuisance." On this direct appeal the constitutionality and validity of that act is not in question; that will be questioned, or rather is questioned on cross-appeal by the defendant. Nevertheless, I shall go briefly into the merits of the whole case.

This act is constitutional.

In 23 Cyc., page 88, it is said: "Statutes declaring that all buildings, tenements, or other places ued for the illegal sale or keeping of intoxicating liquors shall be deemed common nuisances and treated as such, or abated by due proceedings, are valid and constitutional." And see the cases cited in note 21 in support of the taxes. See, especially, Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205, and Schmidt v. Cobb, 119 U.S. 286, 7 S.Ct. 1373, 301 L.Ed. 321.

The law in question provides a civil and not a criminal remedy, and this proceeding is a civil proceeding. The same question, involving precisely the same principle, was decided by this court in the case of the Grenada Lumber Company et al. v. The State, on January 23d of this year, 54 So. 8. In that case, after citing many authorities, this court speaking through Judge Anderson, said:

"The term 'civil cause' (as used in section 147 of the Constitution), in our judgment was intended to comprehend every conceivable cause of action, whether legal or equitable, except such as are criminal in the usual sense; that is, where the judgment against the defendant may be a fine or imprisonment, or both, and in case of fine alone, imprisonment until payment. This is in fact a suit to punish an offense against the public justice, but it is a civil cause nevertheless; and it is competent for the legislature to provide for the punishment of such offenses by either criminal or civil proceedings, or both, as is done by chapter 145 of the Code."

The bill itself was not sworn to but the chancellor necessarily had to be satisfied that the allegations of the bill were true, under section 608 of the Code of 1906, which is as follows:

"An injunction shall not be granted unless the judge or chancellor shall be satisfied of the complainant's equity and of the truth of the allegations of the bill by oath or other means. "

I presume it will be argued that the act is unconstitutional because it grants to the chancery court jurisdiction to enforce a penalty. If there were no other grounds or cognizances of this suit by the chancery court than the enforcement of the penalty, then the argument might have some weight, although even in that case, since the chancery court has exercised jurisdiction of this case, we do not think the argument would be sound. But since the chancery court clearly has jurisdiction for the purpose of restraining and abating the nuisance. under the long practice in England and in this country and under the statute itself, and has taken cognizance of the suit for that purpose, then it will retain the case for all purposes and grant all of the relief germane to the subject-matter of the issue involved.

R. L. C. Barrett, for appellee and cross-appellant.

Chapter 134, of the acts of 1910, is unconstitutional. By conferring jurisdiction on the chancery court to try the matters relating to the attachment and penalty prescribed, it violates section 31 of the Constitution of the state of Mississippi which provides that "The right of trial by jury shall remain inviolate." Certainly at common law a jury trial as to such matters was necessary, and it is equally certain that this section of the Constitution was intended to guarantee a trial by jury in all matters where at common law such a trial was necessary. Isom v. Mississippi Railroad Co., 36 Miss. 300.

Therefore, the only question left to decide on this point is whether or not the defendant in this case would, under Code section 558, be able to demand as a matter of right a trial by jury in the chancery court. This is disposed of by First State Bank v. Lincoln, 53 So. 387, in which this court recently held that the matter of allowing a jury in a chancery proceeding was purely discretionary with the chancellor, there being no right to a trial by jury in chancery cases. Under these decisions it is manifest that the act in question is unconstitutional and for this reason the injunction should have been dissolved and the demurrer sustained.

The Constitution of Mississippi defines the jurisdiction of the chancery court and the grant of powers should be construed to deny those not specifically conferred. At the time of the adoption of the present Constitution the chancery court had no power to enjoin or suppress as a nuisance a place where liquor was illegally sold, for no statute gave that authority and no such power was given by the common law. At common law a court of equity had no jurisdiction to enjoin a place at which liquors were sold illegally, for the simple reason that up to the time the common law became a defined system there was, in England, no such thing as the illegal sale of liquor in the sense in which we have it in the United States. This is an historical fact of which the court will take judicial cognizance. Local option laws and prohibition laws are of modern growth and are as distinct from the common law as are laws relating to automobiles and flying machines. It is true that at common law tippling houses were occasionally enjoyed as nuisances but it was always on the ground that they had become disorderly, and it was always required that the facts constituting the nuisance should be set out in the bill of complaint, and that there should be an allegation of injury to person or property rights. The tippling house itself was not a nuisance per se. In this connection it should be remembered that in the case at bar there is no allegation of any facts making defendant's place of business a nuisance and there is no allegation to the effect that there has been injury to persons or to property rights.

The books are full of cases holding that at common law the chancery court has no jurisdiction to suppress a criminal nuisance. For an interesting discussion of this matter the court is referred to State v. Ehrlick, 23 L. R. A. 691, 65 W.Va. 700.

The seizure of defendant's possessions and the search of his house was unwarranted and invalid and the action of the chancellor in dismissing the attachment was proper.

Section 23 of the Constitution of the state of Mississippi provides: "The people shall be secure in their persons, houses and possessions from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized."

An attachment not based on affidavit is invalid under chapter 9 of the Code of 1906.

Section 129 of the Code of 1906 provides: "In what cases a remedy.--The remedy by attachment shall apply to all actions or demands founded upon any indebtedness, or for the recovery of damages for breach of any contract, express or implied, and to actions founded on any penal statute."

Section 133, of the same chapter, provides for an affidavit in such cases.

Henry & Canizaro, for appellee and cross-appellant.

Our contention is that the entire act is unconstitutional and void for the following reasons:

First, Because the legislature cannot alter or change the prescribed jurisdiction of chancery court as given and fixed by section 159 et seq. of the Constitution of the state of Mississippi.

Second. Because the act is violative of article 14, of the amendment of the Constitution of the United States, and also sections 14, 23, 26, and 31 of the Constitution of Mississippi.

Third. That appellant's bill and contention cannot be maintained if either section of the act is unconstitutional, they being absolutely dependent on each other and must, therefore, stand or fall together.

Fourth. That the demurrer and motion interposed by appellee should have been sustained by the chancellor in entirety instead of in part.

Fifth. That the chancery court will not be permitted to take jurisdiction of a cause over the objection of the defendant (appellee) when the question is properly raised in the chancery court, and that this court will not affirm its action in so doing when it appears...