State v. Persica

• Decision Date: 13 June 1914
• Citation: 168 S.W. 1056,130 Tenn. 48
• Parties: STATE EX REL. ESTES, DIST. ATTY. GEN., v. PERSICA ET AL.
• Court: Tennessee Supreme Court

168 S.W. 1056

130 Tenn. 48

STATE EX REL. ESTES, DIST. ATTY. GEN., v. PERSICA ET AL.

Supreme Court of Tennessee.

June 13, 1914

Appeal from Chancery Court, Shelby County; F. H. Heiskell and Francis Fentress, Chancellors.

Bill by the State, on the relation of Z. N. Estes, District Attorney General, against J. J. Persica and another, for the abatement of a nuisance. From a judgment overruling demurrers to the bill, defendants appeal, and relator appeals from that part of the judgment holding that defendants were entitled to five days' notice in writing of the hearing of an application for an injunction. Affirmed on defendant's appeal, and modified on relator's appeal.

Frank M. Thompson, Atty. Gen., and Z. N. Estes, Dist. Atty. Gen and G. T. Fitzhugh, both of Memphis, for the State.

Caruthers Ewing and Anderson & Crabtree, all of Memphis, for Persica and others.

BUCHANAN J.

This case stands on demurrer. The bill was predicated on chapter 2 of the Public Acts of the Second Extra Session of the General Assembly of 1913. See page 665 of the published acts of that year. The bill was filed on the relation of Hon. Z. N. Estes District Attorney General, and sought a decree abating as a public nuisance a certain business, which it averred J. J Persica and J. P. Lynch had been carrying on, engaged in, and maintaining in a certain building located at 119 South Court avenue, in the city of Memphis, since March 1, 1914. The business was averred to be the sale and tippling of intoxicating liquors in violation of the laws of the state. One Rideout, averred to be the barkeeper of the parties above named, was made a defendant, as was the owner of the building in which the business was averred to have been conducted.

The demurrers of the defendants challenge the constitutionality of the act on many grounds. Chancellors Heiskell and Fentress, sitting jointly, overruled the demurrers, from which action the demurrants appealed. The chancellors construing the act held that, under it, the defendants as defendants were entitled to five days' notice in writing of the hearing of the application for an injunction before the writ would issue, and from this part of the decree, the relator appealed.

We will first dispose of the questions made by the demurrants. They say the bill embraces more than one subject, and for that reason contravenes section 17 of article 2 of the state Constitution, and they point to the proceedings authorized by the act (1) against principals, (2) against aiders and abettors, and (3) against owners of the building in which the nuisance may be conducted; and the argument is that the penalties by the act denounced against each of these three classes of participants in a public nuisance is a separate subject of legislation. But this argument overlooks the broad character of the title of the act. Its title was "An act to define and more effectually provide for the abatement of certain public nuisances." Its purpose was to more effectually provide for the abatement of certain public nuisances, which are named in its first section, and, in order to carry out that general purpose, the proceedings authorized against the three classes of participants above named were obviously necessary to the execution of the general purpose; that is to say, they were germane to that purpose; they were the proceedings which the law-making body considered necessary to be taken to carry out that general purpose, and, when so considered, instead of being separate subjects of legislation, they are readily seen to be but parts of one subject.

It is argued that the title of the act is restrictive. This is true only as to the kinds of public nuisances to which it was designed to apply. In all other respects the title is as broad as it could be and yet give fair notice of the general purpose of the act. Under a title so broad, any number of means, agencies, or instrumentalities for the accomplishment of the general purpose of the act may be made use of in its body, so long as each of them be germane to the general purpose disclosed by the title. Our legislation affords many illustrations of what has just been said, as may be seen by reference to the following cases: State v. Lasater, 9 Baxt. (68 Tenn.) 585; Morrell v. Fickle, 3 Lea (71 Tenn.) 82; Wilson v. Benton, 11 Lea (79 Tenn.) 56; State v. True, 116 Tenn. (8 Cates) 294, 95 S.W. 1028; Cannon v. Mathes, 8 Heisk. (55 Tenn.) 519; Frazier v. R. R. Co., 88 Tenn. (4 Pickle) 140, 12 S.W. 537; State v. Yardley, 95 Tenn. (11 Pickle) 546, 32 S.W. 481, 34 L. R. A. 656; Ryan v. Terminal Co., 102 Tenn. (18 Pickle) 128, 50 S.W. 744, 45 L. R. A. 303; State v. Brown, 103 Tenn. (19 Pickle) 450, 53 S.W. 727; Condon v. Maloney, 108 Tenn. (24 Pickle) 83, 65 S.W. 871; Furnace Co. v. Railroad, 113 Tenn. (5 Cates) 728, 87 S.W. 1016; Knoxville v. Gass, 119 Tenn. (11 Cates) 438, 104 S.W. 1084; State ex rel. v. Hamby, 114 Tenn. (6 Cates) 363, 84 S.W. 622; Rhinehart v. State, 121 Tenn. (13 Cates) 420, 117 S.W. 508, 17 Ann. Cas. 254; Scott v. Marley, 124 Tenn. (16 Cates) 388, 137 S.W. 492; Home Tel. Co. v. People's Tel. Co., 125 Tenn. 270, 141 S.W. 845, 43 L. R. A. (N. S.) 550.

It is next said that the act is class legislation, and, as such, is inhibited by section 8 of article 1, and by section 8 of article 11, of the Constitution of the state, and the fourteenth amendment of the Constitution of the United States. This insistence rests on fallacious premises. It assumes that the second section of the act conferred a privilege on the ten or more citizens and freeholders of the county who are by that section authorized to file a petition in the name of the state, seeking to abate a nuisance named in the first section of the act, and that another privilege is conferred on the aforesaid ten citizens and freeholders, in that they are allowed by the third section of the act to file such petition after having given bond conditioned to pay all costs and damages, in the event the court trying the cause shall find that the proceeding was instituted without probable cause, while, on the other hand, it is said that all other litigants procuring injunctions in all other cases must execute a bond in such sum as the chancellor or judge may order, conditioned to comply with the orders and decrees of the court and to pay such damages as may be awarded or recovered for wrongfully suing out such attachment or injunction. And it is again insisted that the proceedings authorized by the act, both as against the principal and as against the owner of the building in which the nuisance may be conducted, amount to the deprivation of property without due process of law.

An answer to the foregoing insistence is that, in the first place, no privilege or immunity is conferred upon the ten citizens and freeholders. They are a mere agency for the state, authorized by the act in question to set in motion the proceeding for the abatement of a public nuisance named in the first section of the act, and the authority conferred upon them by the act is not a privilege or immunity, within the meaning of the Constitution, but, on the contrary, a duty which they, as citizens, may assume for the public good. If the ten or more citizens and freeholders should act under the authority so conferred, it would be an exercise of the police power of the state. Indeed, the lawmaking body, in the passage of the act, was within the domain of the police power of the state, and it has long been settled that much liberality of classification is to be allowed in the exercise of the police power. Webster v. State, 110 Tenn. (2 Cates) 491, 82 S.W. 179; Kirk v. State, 126 Tenn. (18 Cates) 7, 13, 14, 150 S.W. 83, Ann. Cas. 1913D, 239; State v. Mill Co., 123 Tenn. (15 Cates) 399, 131 S.W. 867, Ann. Cas. 1912C, 248; Motlow v. State, 125 Tenn. (17 Cates) 547, 145 S.W. 177; Debardelaben v. State, 99 Tenn. (15 Pickle) 649, 42 S.W. 684; Brinkley v. State, 125 Tenn. (17 Cates) 371, 143 S.W. 1120.

Nor can it be doubted that the law-making power of the state may, within constitutional limits, prescribe such an agency as is provided for in this act to represent the interest of the public in setting in motion such a law as this. Carlton v. Rugg, 149 Mass. 550, 22 N.E. 55, 5 L. R. A. 195, 14 Am. St. Rep. 446; Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205.

The insistence that the act violates the fourteenth amendment of the Constitution of the United States is not well made. The act is an exercise of the police power of the state, and there is no such arbitrary classification or disregard of the rights of property, either so far as the principals in the commission of the nuisance are concerned or the owner of the building, as to invalidate the act. Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; Kidd v. Pearson, 128 U.S. 1, 9 S.Ct. 6, 32 L.Ed. 346; Eilenbecker v. District Court, 134 U.S. 31, 10 S.Ct. 424, 33 L.Ed. 801.

The principles announced in City of Memphis v. Fisher, 9 Baxt. (68 Tenn.) 240, and Malone v. Williams, 118 Tenn. (10 Cates) 431, 103 S.W. 798, 121 Am. St. Rep. 1002, do not apply where the action in which the bond is required to be executed is one to which the state is a party.

"The state shall commence and prosecute suits according to the laws of the land, as in cases between individuals, except that no security shall, in such case, be required." Section 4506, Shan. Code.

The suit authorized to be brought by the ten citizens and freeholders under the act in question would be the state's suit brought in its interest, and for the benefit of its citizens.

It is insisted in the third place that the act in question singles out certain public nuisances and makes drastic provisions with respect thereto, whereas no such provisions are made with respect...