Summary
In Pigford v. State, 184 Miss. 194, 183 So. 259, this Court said: "In the construction of a statute such as is here under consideration, it has not generally been thought that courts of equity could enjoin the use of real property for legitimate purposes, wherein an unlawful business had been maintained * * * (citing a number of authorities).
Summary of this case from Whittington v. State ex Rel. BarlowOpinion
No. 33174.
September 12, 1938.
1. INTOXICATING LIQUORS.
Owners of a building which contained a wall in which was constructed a secret cache or locker operated by a secret spring not easily detected in which whisky was found by officers were properly enjoined from further violations of the prohibition laws (Code 1930, sections 2007, 2008).
2. INTOXICATING LIQUORS.
The statutory power of a chancery court to abate nuisances growing out of the sale of intoxicating liquors is governed as to rules of evidence, practice and procedure, by the rules that pertain generally to equity courts (Code 1930, sections 2007, 2008).
3. STATUTES.
The statutes relating to abatement of nuisances growing out of the sale of intoxicating liquors are not in pari materia and cannot be read in connection with statute dealing with houses and acts of lewdness and prostitution (Code 1930, sections 2007, 2008, 2875).
4. STATUTES.
Where an act may incidentally refer to the same subject as is treated of in another act, it is not in pari materia if the scope thereof is distinct and unconnected.
5. INTOXICATING LIQUORS.
Generally, under statute relating to abatement of nuisances growing out of the sale of intoxicating liquors, equity will not enjoin the use of realty for legitimate purposes, wherein an unlawful business has been maintained (Code 1930, sections 2007, 2008).
6. INTOXICATING LIQUORS.
Under statute relating to abatement of nuisances growing out of the sale of intoxicating liquors, decree which in addition to enjoining possession, storing or selling intoxicating liquors deprived owners of possession and use of the realty for legitimate purposes was erroneous (Code 1930, sections 2007, 2008).
APPEAL from chancery court of Lauderdale county; HON. A.B. AMIS, SR., Chancellor.
Z.A. Brantley, of Louisville, and L.F. Easterling, of Jackson, for appellants.
The lower court erred in refusing to grant the application of Miss Pauline Pigford and to turn the real estate over to her and in requiring the sheriff to hold the property for twelve months as being against the power of the Chancery Court in this proceedings.
It seems that the learned Chancellor in the court below labored under the impression that Chapter 53 of the Code of 1930, dealing with nuisances applied to a case of the unlawful sale of intoxicating liquor, and he seems to have followed the procedure outlined in that chapter throughout. In this, we respectfully submit that the learned Chancellor erred. Chapter 53 is not authority for the procedure and the drastic decrees rendered in this cause.
The bill seems to have been drawn under the proper section of the chapter on intoxicating liquor, but the remedy and the relief granted are far in excess of these powers as defined in Sections 2007 and 2008 of the Code of 1930.
Chapter 189, Laws of 1918.
The Legislature evidently distinguished between places of assignation and unlawful cohabitation and places where intoxicating liquors were kept and sold.
Sections 2869, 2870, 2871, 2872, 2873, 2874, 2877, and 2879, Code of 1930.
We contend that Chapter 53, as shown by its very terms, applies only to the kind of nuisance therein defined and invokes the procedure therein provided for and that this chapter cannot be invoked or applied to the nuisance under Sections 2007 and 2008 or under the chapter dealing with intoxicating liquors, to-wit, Chapter 38 of the Code of 1930.
Ridge v. State, 89 So. 743; Redmond v. State, 118 So. 360, 152 Miss. 54; 14 Enc. Pl. Pr., pages 1105, 1118, 1120; 33 C.J., pages 692, 699, and section 424; State v. Bennett, 37 N.D. 465, 163 N.W. 1063, L.R.A. 1917F 1076; State v. New England Furniture Co., 52 L.R.A. (N.S.) 932.
It seems manifest that the statute applicable to bawdy houses, being Chapter 53 of the Code of 1930, was not applicable to the facts in the instant case, and the lower court erred in attempting to follow the provisions of Chapter 53 of the Code of 1930, and in ordering the real estate and buildings held by the sheriff for a period of one year. We say that this deprives Miss Pauline Pigford, the owner of the property, of her property without due process of law. Miss Pauline Pigford laid no claim to the personal property therein situated. Her claim is that she owned the property and had it leased, but that the date she filed her answer the lease had expired, and she asked the court to turn the property back to her.
Miss Pauline Pigford was entitled to have the real property constituting "Green Gables" turned over to her.
Chapter 53, Section 2879, Code of 1930.
We submit that the testimony of Miss Pauline Pigford, Mr. Watts and Mr. Bostick, and the sworn answer of Mac Enfinger conclusively show that the property was originally contracted to be purchased from the then owner, J.S. Buchanan, and that it was understood at that time that the title was to be taken in the name of Miss Pauline Pigford, and after delay incident to transactions with the Federal Land Bank in getting the description corrected, this was done. There is no proof to show that this was done to evade the law. So, therefore, we think the finding of the Chancellor was contrary to the facts as established by the evidence.
In a case arising under Chapter 38 of the Laws of 1930, where a car belonging to the appellant, Adlinger, was taken by his chauffeur and used in the transportation of liquor, the court held that where the owner of the car did not know of the use the car was put to or had not been negligent in employing the chauffeur, that the circuit court could not order the car forfeited and destroyed.
Adlinger v. State, 114 Miss. 314, 75 So. 441.
In support of our argument that the Legislature never intended such drastic remedies in case of keeping or selling intoxicating liquor as that applied to nuisances growing out of unlawful prostitution as provided for in Chapter 53, we call the court's attention to the fact that if such is the true interpretation and application of the law, that is, that Chapter 53 applies to places where liquors are kept or sold, then any householder of property, who happened to have in his home intoxicating liquors, contrary to law, could be hauled into a chancery court upon a bill filed by the district attorney, and his home could be closed and his family put out in the streets for a period of twelve months.
We submit that on the testimony contained in this record that the proof is not sufficient to have justified the decree of the court below, enjoining the appellant, Paul Pigford, from violating the law or conducting such business anywhere in that chancery district.
It seems apparent that the appellee, the State of Mississippi, by the district attorney, filed a bill under Section 2007 of the Code of 1930, and that the answer of Paul Pigford and the petition of Miss Pauline Pigford conformed to the pleadings under said section, but that the court in the trial and in the decrees rendered, adopted and followed Chapter 53 of the Code of 1930, as the controlling statutes covering said procedure. It is, therefore, obvious that the pleadings made a case under Section 2007, but the case was tried by the court on the theory that the provisions of Chapter 53 were applicable, and applied the same throughout except as to the matters hereinbefore pointed out.
Dickerson v. State, 132 So. 88, 159 Miss. 83.
Russell Wright, Assistant Attorney General, for the state.
The only question involved is whether or not the section of the code dealing with nuisances, which is Chapter 53 of the Mississippi Code of 1930, and which provides the method of dealing with nuisances, embraces intoxicating liquor as set forth in section 2007 of the code. It was the contention of the district attorney, and was so held by the Chancellor, that when Section 2007 was adopted and provided that certain places where liquors were kept or possessed should be deemed common nuisances and might be abated by writ of injunction, issued out of a court of equity, that thereupon the procedure for the abatement of such nuisances was set forth in Chapter 53, which is the general code chapter on nuisances. Counsel cites no authority for the contention he makes, and this question has not been heretofore decided, so far as I am determined. It is purely a statutory question, and if this court should hold that Chapter 53 did not include, in providing the procedure, the method to be followed in abating liquor nuisances, then there is no statutory method to be followed. If Chapter 53 does include within its procedure liquor nuisances, then counsel's entire argument relative to statutory authority to close the place and restrain the persons is set out definitely in Chapter 53 and needs no argument.
The rule of law is well established in Mississippi that, in the construction of any statute, all laws in pari materia should be considered in order to ascertain the intention of the legislature.
Scott v. Searles, 1 S. M. 590; City of Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703; Middleton v. Lincoln County, 122 Miss. 673, 84 So. 907.
And this is true whether the statutes were enacted on the same day or not.
Barrett v. Cedar Hill Consolidated School District, 123 Miss. 370, 85 So. 125.
And the law is further settled that if the provisions of two acts, approved the same day, can be reconciled, the court will do so by reading into the provisions of one using general language provisions of other specifically controlling subject.
Swift Co. v. Sones, 142 Miss. 660, 107 So. 881.
The state contends that the general language used in Section 2007, providing that places where liquor is kept unlawfully shall be deemed a common nuisance and may be abated by injunction is regulated as to the method of enforcing the abatement by Chapter 53 of the Code.
By a bill in equity, undoubtedly drawn under the terms of section 2007, Code of 1930, it was sought to abate appellants' business of unlawfully keeping for sale, and selling, intoxicating liquors, which in effect took from their possession the real property of the owners and operators of a store or business house, and placed same under the exclusive dominion and control of the sheriff of the county. In the wall of a room in this house there was constructed a secret cache or locker operated by a secret spring not easily detected, in which as the proof shows, whiskey was found by officers of the law.
The facts in this case fully warranted the Chancellor in abating the place, as being operated in violation of the prohibition laws of the state, and he was authorized to enjoin and restrain the parties from any further such violations. However, on the facts here, we think the decree went beyond the power of the Chancery Court in depriving the owners of the structure of the use thereof for lawful purposes; in fact, stripped the owner of dominion over, and control of, his real property for the space of a year.
As to the power of the Chancery Court to abate nuisances, as related to intoxicating liquors, the authority therefor is to be found in sections 2007 and 2008, Code of 1930; no such authority as was exercised here is to be derived from the provisions of chapter 53, Code of 1930, section 2868 et seq., dealing with houses and acts of lewdness and prostitution. These separate acts first came into our statutes in the Laws of 1918, sections 2007 and 2008 of the Code as part of chapter 189 thereof; and chapter 53 of the Code as chapter 193, both approved on the same day, March 28th, 1918. Each scheme is separate and distinct from the other.
Section 2875, Code of 1930, vests the Chancery Court with power to abate prostitution and similar nuisances, and to prohibit the use of real property for any purpose whatever for one year; and that particular power was assumed by the court below in the case at bar.
The power to abate nuisances growing out of the sale of intoxicating liquors found in section 2007, is governed, as to rules of evidence, practice annd procedure, by the rules that pertain generally to equity courts in this state.
The legislature did not deal so drastically with intoxicating liquor cases as with those pertaining to prostitution, and the two acts are not in pari materia, and cannot be read one into the other. Those statutes are in pari materia which relate to the same person or thing, or class of persons or things, or which have a common purpose; and although an act may incidentally refer to the same subject as is treated of in another act, it is not in pari materia if the scope thereof is distinct and unconnected. 59 C.J. 1042, et seq.
In the construction of a statute such as is here under consideration, it has not generally been thought that courts of equity could enjoin the use of real property for legitimate purposes, wherein an unlawful business had been maintained. 20 R.C.L., par. 481, section 94; although compare 46 C.J., 793. Also see Brooks v. State, 210 Ala. 97, 97 So. 137; Gragg v. State, 73 Okla. 132, 175 P. 201; Respass v. Commonwealth, 131 Ky. 807, 115 S.W. 1131, 21 L.R.A. (N.S.), 836; State v. Baltimore Ohio R. Co., 78 W. Va. 526, 89 S.E. 288, L.R.A., 1916F, 1001; Ridge v. State, 206 Ala. 349, 89 So. 742, 743; Brindle v. Copeland, 145 Ga. 398, 89 S.E. 332.
In extreme cases there may arise exceptions to the above rule. It would indeed be a rare case, but it might arise. The facts here are not within that category. Green Gables, the structure here in question, did not offend. The decree was too broad and drastic, and should be modified so as to leave the owner in possession of his real property so long as he uses the building for legitimate purposes. The court was fully authorized by the evidence in this case to enjoin and restrain the appellants from possessing, storing or selling intoxicating liquors, and from using Green Gables for that unlawful purpose.
The decree here will be modified in that respect, but in all other respects affirmed.
Affirmed as modified.