Wilkinson v. State ex rel. Morgan

• Decision Date: 27 March 1981
• Citation: 396 So.2d 86
• Parties: Robert WILKINSON, Am-Vets Post 65, Amer-Vet Athletics, Inc., Wayne O. Coats, and Peter L. Wilkinson v. STATE of Alabama, ex rel., Earl C. MORGAN as District Attorney, etc., Melvin Bailey, Sheriff of Jefferson County, Alabama and B. R. Myers, Police Chief of the City of Birmingham, Alabama. 78-846.
• Court: Alabama Supreme Court

Page 86

396 So.2d 86

Robert WILKINSON, Am-Vets Post 65, Amer-Vet Athletics, Inc., Wayne O. Coats, and Peter L. Wilkinson v. STATE of Alabama, ex rel., Earl C. MORGAN as District Attorney, etc., Melvin Bailey, Sheriff of Jefferson County, Alabama and B. R. Myers, Police Chief of the City of Birmingham, Alabama.

78-846.

Supreme Court of Alabama.

March 27, 1981.

John Martin Galese of Galese & Chambers and R. Clifford Fulford and Max C. Pope of Fulford, Pope & Minisman, Birmingham, for appellants.

Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., Catherine S. Roberts and J. Terry McElheny of Dominick, Fletcher, Yeilding, Acker, Wood & Lloyd, Birmingham, for appellees.

ALMON, Justice.

The State of Alabama sought and received a permanent injunction to abate an alleged gaming nuisance under the provisions of Code 1975, § 13-7-90, viz.:

All places maintained or resorted to for the purpose of gaming and all places where gaming tables or other gaming devices are kept for the purpose of permitting persons to game thereon or therewith are declared to be common nuisances and may be abated by writ of injunction issued out of a court upon a complaint filed in the name of the state by the attorney general or any district attorney whose duty requires him to prosecute criminal cases in behalf of the state in the county wherein the nuisance is maintained, ....

The State alleged that the conducting of bingo games by defendants constituted "gaming" within the purview of the statute. Defendant Gateway Malls, Inc., is the owner of the property on which the bingo games were played. The other defendants are the alleged operators of the games.

Defendants raised a defense of discriminatory enforcement, claiming other bingo operations and additional gambling activities were taking place with impunity in Jefferson County and throughout the state. They also filed counterclaims to enjoin the state from an alleged discriminatory enforcement of Code 1975, § 13-7-90. These were denied in the trial court's decree granting the state a permanent injunction.

Appealing the injunction order, defendants raise several issues, primarily a contention of selective enforcement of Code 1975, § 13-7-90, in violation of equal protection under the law. However, we find it unnecessary to address these issues, as the decree of permanent injunction is due to be dissolved as a result of the repealing of the Code section on which it is premised.

Code 1975, § 13-7-90, was expressly repealed by the Alabama Legislature in its enactment of Title 13A of the Code, Alabama's new criminal code. It was not a clerical error as appellees contend. The legislative act which enacts Title 13A contains a list of laws repealed by the legislature. Act No. 607, § 9901 (1977 Regular Session). This list specifically designates Code 1940, tit. 14, § 293 (current version at Code 1975, § 13-7-90) as a repealed statute. In addition, a table of repealed sections in an appendix to Title 13A specifically includes Code 1975, § 13-7-90. Appellees' reliance on Lewis v. Hitt, 370 So.2d 1369 (Ala.1979), is misplaced. That case involved an assertion of an implied repeal of a portion of a statute as opposed to the express repeal involved here.

What effect does this express repeal of Code 1975, § 13-7-90, have on the permanent injunction decreed below? The effective date of Title 13A was January 1, 1980. Code 1975, § 13A-1-11. The proceedings below reached final judgment on July 24, 1979, prior to this effective date.

It is the general rule in Alabama that statutes are considered prospective unless their language shows that they were intended to be retrospective. Baker v. Baxley, 348 So.2d 468 (Ala.1977). In Saad v. Cline, 51 Ala.App. 668, 670, 288 So.2d 731 (1974), the Court of Civil Appeals said:

There can be no question that the effect of the repeal of a statute or part thereof is to destroy the effectiveness of the repealed act in futuro and to divest the right to proceed under the statute, which, except as to proceedings past and closed, is considered as if it had never existed. (Emphasis added.)

Thus, a case which is tried and decided prior to the effective date of a code which repeals a former section on which that case relied is not affected by the repeal. Payne v. City of Birmingham, 30 Ala.App. 559, 10 So.2d 36 (1942).

However, unlike the "proceedings past and closed" referred to in Saad, the injunction is a continuing order over which a court, sitting in equity, maintains jurisdiction for the life of the decree. This Court recognized this peculiar nature of the injunction decree in Ex Parte Myers, 246 Ala. 460, 21 So.2d 113 (1945). There, this Court quoted, with approval, the California case, Sontag Chain Stores Co. v. Superior Court, 18 Cal.2d 92, 113 P.2d 689, 690 (1941), stating:

(T)he decree, although purporting on its face to be permanent, is in essence of an executory or continuing nature, creating no right but merely assuming to protect a right from unlawful and injurious interference. Such a decree, it has uniformly been held, is always subject, upon proper showing, to modification or dissolution by the court which rendered it. The court's power in this respect is an inherent one.

246 Ala. at 463, 21 So.2d 113.

Thus, the life of the injunction, by its very nature, is subject to pertinent events that occur subsequent to the decree. In the words of the Myers Court, "The injunction relates to matters of future continuous operation." 246 Ala. at 464, 21 So.2d 113.

By this same reasoning, the saving clauses cited by appellees, Code 1975, §§ 13A-1-8 and -9, are inapplicable. They claim these clauses preserve their right to the injunction order. Such clauses are generally provided to continue in force a repealed law as to existing rights and pending actions. 1A J. Sutherland, Statutes and Statutory Construction, § 23.39 (4th ed. 1972). However, because of the inherent vulnerability of injunctions to changed circumstances, including changes in law, injunctions do not come within the purview of saving clauses.

The rule allowing the modification or dissolution of injunctions is recognized in most jurisdictions, viz.:

Where the grounds and reasons for which the injunction was granted no longer exist, by reason of changed conditions, it may be necessary to alter the decree to adapt it to such changed conditions, or to set it aside altogether, as where there is a change in the controlling facts on which the injunction rests, or where the applicable law, common or statutory, has in the meantime been changed, modified, or extended. Such change in the law does not deprive the complainant of any vested right in the injunction, because no such vested right exists.

42 Am.Jur.2d, Injunctions, § 334 (1969) (emphasis added) (footnotes omitted).

We have recognized in Alabama that a change in law subsequent to an injunction decree and pending appeal may work a dissolution of the decree. Reynolds v. State, 279 Ala. 331, 185 So.2d 123 (1966). In Reynolds, the circuit court issued an injunction based on a finding that the Voting Rights Act of 1965 was unconstitutional. The order restrained a Judge of Probate from fulfilling the requirements of this Act. Pending appeal, the United States Supreme Court held the Act constitutional. Finding itself compelled to find the injunction dissolved, the Reynolds Court reasoned:

The injunction here is issued on the premise that the federal examiner provisions are unconstitutional and void. The Supreme Court of the United States holds to the contrary. The premise on which the injunction was issued is thus destroyed by the federal court.

279 Ala. at 333, 185 So.2d 123 (emphasis added).

Although Alabama has not addressed a change in law worked by legislative action in this context, other jurisdictions have found that an injunction based on a statute later repealed or changed to be subject to modification or dissolution. See cases collected in Annot. 136 A.L.R. 765 (1942).

The United States Supreme Court had an opportunity to address this question in System Federation No. 91, Railway Employes' Department, AFL-CIO v. Wright, 364 U.S. 642, 81 S.Ct. 368, 5 L.Ed.2d 349 (1960). The District Court had enjoined a railroad and some unions from discriminating against nonunion employees. Subsequently, the Railway Labor Act was amended to permit, under certain circumstances, a union shop. The Supreme Court held that the unions were entitled to a modification of the injunction decree, reasoning:

The source of the power to modify is of course the fact that an injunction often requires continuing supervision by the issuing court and always a continuing willingness to apply its powers and processes on behalf of the party who obtained that equitable relief.... (T)he court cannot be required to disregard significant changes in law or facts if it is "satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong."

364 U.S. at 648, 81 S.Ct. at 371.

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