State v. Myers

• Citation: 146 So.2d 334,244 Miss. 778
• Decision Date: 05 November 1962
• Docket Number: No. 42434,42434
• Parties: STATE of Mississippi v. J. E. MYERS, Mrs. J. E. Myers and Jack Dennis.
• Court: United States State Supreme Court of Mississippi

Page 334

146 So.2d 334

244 Miss. 778

STATE of Mississippi v. J. E. MYERS, Mrs. J. E. Myers and Jack Dennis.

No. 42434.

Supreme Court of Mississippi.

Nov. 5, 1962.

Joe T. Patterson, Atty. Gen., by Martin L. McLendon, Asst. Atty. Gen., Jackson, Boyce Holleman, Dist. Atty., Second Jud. Dist., and Gaston H. Hewes, County Atty., Harrison County, for appellant.

Forrest B. Jackson, Jackson, Albert S. Johnston, John M. Sekul, Biloxi, Bidwell Adam, Gulfport, for appellees.

RODGERS, Justice.

The Attorney General of the State of Mississippi, the District Attorney of the Second Circuit Court District, and the County Attorney of Harrison County, filed an original bill in the Chancery Court of Harrison County, Mississippi, to abate a common nuisance under the statutory authority vested in the Chancery Court by Sec. 1073, Miss. Code 1942, Rec. J. E. Myers, Mrs. J. E. Myers and Jack Dennis were made defendants in the pleading, wherein it was charged that they operated an establishment in which gambling was permitted. A description of the real property was set out in the bill, and it was alleged that defendants were permitting a dice table, roulette table, blackjack table and slot machines to be operated in the establishment, and that these were gambling devices.

The bill sought a temporary injunction against defendants, enjoining them from operating gambling devices and sought a permanent injunction prohibiting defendants from violating the gambling laws of Mississippi on the premises therein described. The State also asked that defendants be compelled to make discovery of other parties interested in the business, and require the defendants to give a legal description of the property. The State of Mississippi also sought to require the defendants to give bond in accordance with the aforementioned statutory law.

Defendants filed a special demurrer to the bill, and when the chancellor sustained the demurrer, the State amended the bill so as to set out the following language: 'Answer under oath being specifically waived, and defendants are not required to answer any allegations to make discovery of any matter that might tend to incriminate them.'

The attorney representing the defendants filed a general demurrer to the bill setting up, among other things, that there 'is no equity upon the face of the bill.' The Chancellor sustained the general demurrer. The State of Mississippi has appealed to this Court, and complains that the Chancery Court of Harrison County erred in sustaining appellee's general demurrer and in dismissing the bill of complaint.

The learned chancellor pointed out, in his opinion, that Sec. 1292, Miss. Code 1942, requires an answer in the chancery court to be made under oath as follows: 'The answer shall be sworn to by the defendant unless the complainant in his bill shall waive an answer under oath; in which case the answer, whether sworn to or not, shall not be evidence for the respondent.'

Sec. 1073, Miss. Code 1942, Rec., contains the following language: 'And all rules of evidence and of practice and procedure that pertains to courts of equity generally in this State may be invoked and applied in any injunction procedure hereunder.'

The chancellor was of the opinion that since Sec. 26 of the Constitution of 1890, expressly provides that a defendant shall not be required to give evidence against himself and since Sec. 1291, Miss. Code 1942, requires defendant to answer 'All matters of fact averred in the bill and not denied by the answer otherwise than by the general traverse, may be taken at the hearing as admitted'--that where defendants had raised their constitutional rights not to testify by filing a general demurrer--the bill against the defendant could not be maintained on the ground 'that there was no equity on the face of the bill.'

We have come to the conclusion that the learned chancellor committed reversible error in sustaining the general demurrer to the original bill brought under Sec. 1073, Miss. Code 1942, Rec., to abate a common nuisance in this case for the following reasons.

This Court has pointed out in the case of Brooks v. State, by Alexander et al., 219 Miss. 262, 68 So.2d 461, that this section is not unconstitutional on the ground that it intends to confer upon the chancery court criminal jurisdiction, and also settled the question of due process of law. Cf. State v. Phillips, 109 Miss. 22, 67 So. 651, L.R.A.1915D, 530.

We have pointed out that proceedings in the chancery court to abate a common nuisance under the liquor law is a civil cause. State ex rel., Dist. Atty. v. White et al., 178 Miss. 542, 173 So. 456. We have also said that facts to warrant an injunction may be established by preponderance of the evidence. Turnage v. State, 134 Miss. 431, 99 So. 9; 39 Am.Jur., Nuisances, Sec. 149, p. 414.

In the case of Alexander v. State, 210 Miss. 517, 49 So.2d 387, 49 So.2d 890, we held that a criminal statute (Sec. 2562, Miss. Code 1942) did not apply in common nuisance cases filed in the chancery court, but that the law (Sec. 1278, Code of 1942) with reference to the power to punish for violation of breach of an injunction in the chancery court did apply.

This Court has repeatedly held that the chancery court had jurisdiction to issue injunctions, enjoining persons from operating a common nuisance under one or more of the common nuisance statutes of this State. Stevens v. State, 225 Miss. 48, 83 So.2d 645; Murphy v. State, 202 Miss. 890, 32 So.2d 875, 33 So.2d 786; Warren v. State, 231 Miss. 343, 95 So.2d 237; State ex rel. Hawkins, Dist. Atty. v. Busby, 224 Miss. 181, 79 So.2d 728; Stringer v. State, 228 Miss. 387, 87 So.2d 691; Pace v. State, 231 Miss. 144, 94 So.2d 798; Vermillion v. State ex rel. Carman, 210 Miss. 255, 49 So.2d 401; Brooks et al. v. State, by Alexander, et al., 219 Miss. 262, 68 So.2d 461; McBride v. State, 221 Miss. 508, 73 So.2d 154; Anno. 5 A.L.R. 1476; Warren v. State, 231 Miss. 343, 95 So.2d 237.

In the case of State ex rel. Atty. Gen. v. Marshall, 100 Miss. 626, 56 So. 792, we had occasion to review the liquor law with reference to a common nuisance, and this Court said: 'The right to enjoin a public nuisance is no new subject of equitable jurisdiction. * * * By the act the unlawful sale or gift of intoxicating liquors is declared to be such, and it was clearly within the constitutional power of the Legislature to so declare. Because a person may be prosecuted criminally for maintaining or conducting a public nuisance, this fact cannot prevent the right of an equity court to enjoin, and particularly when the law expressly gives that right. * * * In Storey on Equity Jurisprudence, Secs. 921, 923, it is stated that: 'In regard to public nuisances, the jurisdiction of the courts of equity seems to be of a very ancient date, and has been distinctly traced back to the reign of Queen Elizabeth. * * * In cases of public nuisances."

It was argued in the Marshall case that a court of equity would refuse to enforce penalties, but the Court said: '* * * Courts of equity do not, and cannot, refuse to enforce penalties created by statutes. The oft-quoted maxim that a court of equity will refuse to enforce a penalty has no application to any but penalties imposed by private contract.' The Court also pointed out in this case that 'The very origin of equity courts grew out of the inefficiency of the common-law courts to administer full and complete relief in all cases. The common-law courts prove themselves incapable of suppressing the liquor nuisance by the ordinary trial and conviction of the person engaged in the same. The Legislature of the state has been compelled to enlarge the scope of the remedy for the ratification of the evil, and to provide other and different ways of suppressing it. In order to do this, it condemned it as a nuisance, and provided for its abatement by the chancery court as well as providing civil penalties and criminal prosecutions. In short, the Legislature has called into play the full judicial power of the state in order to make its prohibitory laws effective, but it has done it in a way that is consistent with its constitutional power.' Cf. 39 Am.Jur., Nuisances, Sec. 149, p. 414.

The authority vested in the chancery court to suppress a public nuisance by injunctive process is an additional remedy and is separate from the criminal laws, and the mere fact that a public nuisance may also be a violation of the criminal law, does not reduce the authority conferred upon the chancery court to grant injunctive relief in a proper case. We do not believe that the chancery court can withhold injunctive process in a common nuisance case where the petitioner brings the cause within the statutory definition of a particular nuisance prescribed by the Legislature, and the proof warrants the issuance of the process.

We are therefore of the opinion that the original bill in this case stated a cause of action under Sec. 1073, Miss. Code 1942, Rec., and that the Chancery Court of Harrison County, Mississippi, had jurisdiction of the subject-matter, and the parties, and that the demurrer should have been overruled.

We are in accord with the authorities cited by the appellees to the effect that Sec. 26 of the Constitution of Mississippi '* * * the accused * * * shall not be compelled to give evidence against himself; * * *'. State v. Billups, 179 Miss. 352, 174 So. 50; Anno. 145 A.L.R. 1423. We also agree that this section of the Constitution of 1890 applies to answers in chancery, (Retail Credit Company v. Garraway, 240 Miss. 230, 126 So.2d 271), as well as interrogatories propounded to defendant. (Wheat v. State, 201 Miss. 890 30 So.2d 84; Malouf v. Gully, State Tax Collector, 187 Miss. 331, ...