Opinion
No. 37395.
June 12, 1950.
1. Intoxicating liquors — gaming — nuisance — statutory proceeding to abate — padlocking.
In a proceeding by the State on the relation of the district attorney to have the place of business of the defendants declared a common nuisance, and abated as such, the court on finding, on sufficient proof, that the defendants were engaged in selling liquor and gambling, may require the defendants to give the statutory bond conditioned as required by the statute, and when such bond has been given and approved the court has no power to padlock the building or buildings in which the defendants conduct their business. Secs. 1073, 2646 Code 1942.
Headnote as approved by Roberds, J.
APPEAL from the chancery court of Wilkinson County; R.W. CUTRER, Chancellor.
Clay B. Tucker, for appellants.
The first final decree rendered in this case was given to the sheriff on December 21, 1948, at 4 o'clock P.M., and the sheriff's return on this decree shows that the sheriff under orders obeyed the said decree, "by locking the described property named and have keys in my possession."
That the lower court without any authority so to do, and against the decisions of this court in Pigford v. State, ex rel., Broach, 184 Miss. 194, 183 So. 259; Redding v. State, 184 Miss. 371, 185 So. 560, and Caravella v. State, ex rel. Holcomb, 185 Miss. 1, 186 So. 653, deprived the appellants here perpetually of their real property for legitimate purposes, as well as the personal property contained in that certain room held out to the public as a beer room, including the out house or small warehouse.
That the court by this decree ordering the sheriff to lock the room held out as a beer room and the out house or small warehouse, under said decree, effectively closed up appellants' place of business, and prevented and stopped appellants from operating a grocery store, a small cafe and from selling beer therein according to law, which the court had no authority under the law to do.
That the court further exceeded its authority in this decree by perpetually restraining and barring defendants from conducting or carrying on any type of business in violation of the laws of the State of Mississippi therein, as the court under and by virtue of the bill of complaint could only restrain and bar appellants from carrying on any business in violation of the prohibition and gambling laws of the State of Mississippi.
George H. Ethridge, Assistant Attorney General, for appellee.
I think the authorities cited by the appellant when properly considered with the facts in the different cases and in the process of the statutes mentioned above do not prevent the doing of what was done in the present case. These authorities deal with many different cases and in some of them the procedure is not definitely marked out which should control the court in permitting the parties to reopen the place for legitimate business purposes and giving securities to guarantee the good faith and performance of such reasonable conditions as the occasion may demand. The cases cited by counsel constitute a brief for the State. That is, the principles announced in these cases furnish a fair guide and justify, in my opinion, what was done in the present case. The decree of the chancellor could be modified on petition and proof, which would justify and secure the operation in a legal manner.
I desire to submit as a part of this brief the case note to Webb v. United States, 49 A.L.R. 612, which annotation begins at page 620 of the A.L.R. report. The case was a federal case decided in 14 F.2d 574, in the United States Circuit Court of Appeals, 8th Circuit, on August 14, 1926, and involved a construction of the Volstead law and proceedings thereunder. This case note contains a multitude of cases dealing with various situations and facts, and I believe it will be helpful in the solution of this case and in enabling the Court to formulate and declare just what proceedings should be taken by a person whose property has been padlocked and found to constitute a nuisance offensive to law and morality and I trust the Court will indicate clearly just what steps will be required to secure the right to reopen a place which has been closed as a nuisance and what may be done to secure the reopening of property for legitimate uses.
This is a proceeding under Sections 1073 and 2646, Miss. Code 1942, to have the business of appellants, conducted upon described premises, declared a common nuisance, because, upon such premises, appellants were engaged in the selling of liquor and gambling. The court found the business so conducted to be a common nuisance, entered a decree so adjudicating, and ordering the same to be abated; required appellants to execute a bond in the sum of $2,500 to obey the decree of the court; ordered the sheriff to lock up the part of the building being used as a grocery store and for the gambling and whiskey-selling business, including a nearby warehouse, and granted an appeal upon execution by appellants of a bond in the sum of $500. The sheriff did lock up the buildings, retaining the keys thereto; appellants executed the bond for $2,500 to obey the decree of the court, and also the appeal bond. Defendants appeal.
They make two contentions: First, that the evidence does not support the finding of the chancellor that the business conducted by appellants constituted a common nuisance; and, Second, that the court had no power to padlock the buildings.
There is no need to set out the testimony on the first contention. It is sufficient to say the findings of the chancellor in that regard are amply sustained by the proof.
(Hn 1) On the second proposition, the chancellor had no power, under the facts of this case, to padlock the store and the warehouse. Under the two named sections, the court can abate and enjoin the prosecution of the business adjudged to be a common nuisance, and require offenders to execute bond to comply with the decree of the court. That was done in this case. As was stated in Pigford et al. v. State ex rel. Broach, 184 Miss. 194, 183 So. 259, we do not decide whether, in some extreme case, the court would not have powers other than those specified in said sections to require compliance with its orders, for instance, where bond is ordered but the party cannot make it, yet the circumstances are such they are not in contempt. Hansborough v. State, ex rel. Pittman, 193 Miss. 461, 10 So.2d 170; White v. State ex rel. Pittman, 193 Miss. 467, 10 So.2d 171. No such case is before us. Here appellants executed the compliance bond. That part of the decree below padlocking the buildings is erroneous, and the decree will be modified here accordingly.
Affirmed as modified.