Opinion
No. 39293.
October 25, 1954.
1. Injunction — against showing motion picture — bill insufficient — nuisance — statutes.
Bill which sought injunction against showing of moving picture, but which did not charge a nuisance and did not charge a violation of statute proscribing exhibition of obscene, indecent or immoral pictures, was insufficient to warrant issuance of an injunction. Sec. 2286, Code 1942.
2. Appeal — bill insufficient to sustain equitable relief — demurrer sustained — wrong ground.
Where allegations of bill for injunction against showing of motion picture were insufficient to entitle complainant to any equitable relief, decree sustaining general and special demurrers to bill would be affirmed, notwithstanding that Chancellor apparently sustained demurrers on ground that District Attorney had no authority to bring the suit; for where a Chancellor bases his final decree, or any other decree, on one ground which is insufficient or erroneous, the decree will be affirmed if there be another ground upon which it may be supported.
Headnotes as approved by Holmes, J.
APPEAL from the circuit court of Adams County; F.D. HEWITT, Chancellor.
Joe T. Patterson, Asst. Atty. Gen., Jackson, for appellant.
I. The State contends that the District Attorney was the proper person to bring this suit, and that this suit is not a suit that only the Attorney General of the State can bring. Capitol Stages v. State, 157 Miss. 576, 128 So. 759; Kennington-Saenger Theatre v. State, 196 Miss. 841, 18 So.2d 483; Sec. 1661, Code 1906; Sec. 1465, Code 1927 (Hemingway's); Sec. 3920, Code 1942.
R.L. Netterville, Chas. F. Engle, Natchez, for appellees.
I. The District Attorney did not have the authority to bring this suit as the subject matter herein involved state-wide interests and not local interests. Capitol Stages v. State, 157 Miss. 576, 128 So. 759; Kennington-Saenger Theatre v. State, 196 Miss. 841, 18 So.2d 483; McCullen, Motor Vehicle Comp. v. State ex rel. Dist. Atty., 217 Miss. 256, 63 So.2d 856; Sec. 174, Constitution 1890; Sec. 1148, Code 1942.
A. Question of public morals is a question of state-wide interest.
II. The cause herein violates the First, Fifth, and Fourteenth Amendments of the Constitution of the United States. Gelling v. Texas, 343 U.S. 960, 96 L.Ed. 1359, 72 S.Ct. 1002; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 96 L.Ed. 1089, 72 S.Ct. 777; Annos. 93 L.Ed. 1151-3; 74 S.Ct. 286; U.S. Digest Annotated, Constitutional Law, Secs. 925-35.
III. The bill of complaint does not state a cause of action known to our law. Anderson v. Hattiesburg, 131 Miss. 216, 94 So. 163; Sec. 2286, Code 1942; 33 Am. Jur., Sec. 14 p. 23.
IV. The trial court having heretofore decided this cause upon the facts and the law, the decision of the trial court upon the facts and its finding of fact, is conclusive. Griffith's Miss. Chancery Practice (2d ed.), Sec. 674 pp. 741-2.
V. Even though the District Attorney had the authority, or even though the Court might hold he had such authority, that is, authority to sue out an injunction preventing any violation of the law, the decree of the trial court as a matter of law must be affirmed. Anderson v. Hattiesburg, supra; Armstrong v. Owens, 83 Miss. 15, 35 So. 320; Baum v. Lynn, 72 Miss. 935, 18 So. 428; Carr v. Miller, 162 Miss. 760, 139 So. 851; Carter v. Catchings (Miss.), 48 So. 515; Carter v. State, 167 Miss. 331, 145 So. 739; First National Bank v. Owen, 177 Miss. 339, 171 So. 4; Griffs v. Martin Oil Co., 162 Miss. 760, 90 So. 324; Groves v. Groves, 57 Miss. 661; Hopper v. Overstreet, 79 Miss. 244, 30 So. 637; Johnson v. Hall, 87 Miss. 669, 40 So. 1; Kimball v. Alcorn, 45 Miss. 149; Lanier v. Ingram, 135 Miss. 642, 100 So. 369; Lee v. Memphis Publishing Co., 195 Miss. 264, 14 So.2d 351; Moore v. Decell (Miss.), 17 So. 681; Ogden v. Guice, 56 Miss. 332; Rosenbaum v. Bohanson, 204 Miss. 9, 13, 36 So.2d 798; Rule v. Rule (Miss.), 39 So. 782; Topp v. Pollard, 24 Miss. 682; Union Planters Bank Tr. Co. v. Rylee, 130 Miss. 907, 94 So. 796; Winfield v. Winfield, 203 Miss. 391, 35 So.2d 351; Yazoo M.V.R.R. Co. v. Adams, 81 Miss. 105, 32 So. 937.
VI. This cause was heard by the trial court on motion to dissolve filed by the defendants, wherein defendants had filed a sworn answer denying all of the material averments of the bill of complaint, along with a special and general demurrer to the bill. The cause was submitted to the trial court on pleadings without evidence therefor; as a matter of law, the defendants were entitled to a decree of the trial court dissolving the injunction. American Colonization Soc. v. Wade, 16 Miss. 610, 8 Sm. M. 610; Davis v. Hart, 66 Miss. 642, 6 So. 318; Derdeyn v. Donovan, 81 Miss. 699, 33 So. 652; Foxworth v. Magee, 48 Miss. 534; Richardson v. Lightcap, 52 Miss. 508; Scott v. Searles, 13 Miss. 25, 5 Sm. M. 25; Griffith's Miss. Chancery Practice (2d ed.), Secs. 364, 453, 569.
VII. The appellees have been permanently injured.
The original bill in this cause was filed in the Chancery Court of Adams County in the name of the State of Mississippi, on the relation of Lenox L. Forman, District Attorney of the Sixth Circuit Court District of the State of Mississippi. Named as defendants to the bill were Irvine Oberlin and Mrs. Irvine Oberlin, who were alleged to be the owners, operators or managers of the Ritz Theater in the City of Natchez. Later, Jerry Oberlin, claiming to be the owner of said theater, was, on his own petition, admitted as a party defendant to the action.
The original bill charged in substance that the defendants in operating said theater were exhibiting therein, and inviting the public to witness, a certain motion picture called "The Moon Is Blue", and that said picture is of a lewd and immoral nature and is immoral in its influence if exhibited to the general public. The bill prayed the issuance of a temporary injunction restraining the defendants from exhibiting said picture, and further, that the defendants be required to appear before the court on a date to be fixed to show cause why they should not be permanently enjoined from exhibiting said picture. A temporary injunction was thereupon issued, without notice to the defendants, enjoining and commanding them, under penalty of contempt of court, to absolutely refrain from "exhibiting in public theaters or places of amusement the motion picture under the name `The Moon Is Blue'." The said writ of injunction was served on the defendants on September 26, 1953, and on the same day, subsequent to the service of the writ of injunction on them, the defendants exhibited said picture in said theater. Motion for citation for contempt was then filed by the complainant, and the defendants were cited to appear before the court on October 12, 1953, at 10 o'clock A.M., to show cause why they should not be adjudged in contempt of court.
The defendants filed an answer to the original bill and to the motion for citation for contempt. They denied that the picture in question was of a lewd and immoral nature, or that it was immoral in its influence if exhibited to the general public. They denied the contempt charges and disclaimed any intention of wilfully violating the injunction writ. They incorporated in their answer to the original bill a general demurrer upon the ground that the bill showed no equity on its face, and a special demurrer wherein they challenged the authority of the district attorney to bring this suit in the name of the State. The defendants also filed a motion to dissolve the injunction upon the grounds that it was improvidently, improperly and illegally issued.
When the cause came on for hearing, no proof was offered by either side, and the cause was submitted to the court, to be taken under advisement for decision in vacation, upon the pleadings, the general and special demurrers, the motion to dissolve the injunction, and the pleadings in the contempt proceedings. At a later date the chancellor rendered his decision, holding that the district attorney was without statutory authority to bring the suit in the name of the State, and he rendered a decree sustaining the demurrers, dissolving the injunction, and dismissing the suit. It is from this decree that this appeal is prosecuted.
The appellant assigns as error (1) that the trial court erred in sustaining the special demurrer, and (2) that the trial court erred in holding that the district attorney was without authority to bring the suit.
The argument of the appellant is directed mainly to the question of the authority of the district attorney to bring the suit, and it is the contention of the appellant that the subject matter of the litigation is not of state-wide interest but a matter of local interest, and that, therefore, the decisions of this Court in the cases of Capitol Stages v. State, ex rel District Attorney, 157 Miss. 576, 128 So. 759, and Kennington-Saenger Theaters, Inc. v. State ex rel District Attorney, 196 Miss. 841, 18 So.2d 483, holding that the district attorney has no authority to represent the State in litigation involving subject matter of state-wide interest are not in conflict with appellant's position.
On the other hand, the appellees contend that the subject matter of this litigation involves the public morals and that this is a matter of state-wide interest, and that, therefore, under the authority of Capitol Stages v. State, ex rel District Attorney, supra, and Kennington-Saenger Theaters, Inc., v. State, ex rel District Attorney, supra, the district attorney was without authority to bring the suit in the name of the State, and that the chancellor was correct in sustaining the special demurrer. It is further contended by the appellees that the allegations of the bill state no grounds for equitable relief, and that the chancellor was therefore correct in sustaining the general demurrer and in dissolving the injunction and dismissing the suit.
(Hn 1) We need not appraise, nor do we attempt to appraise, the nature of the picture here involved. Neither do we deem it necessary to determine in this suit whether the matter of public morals is a matter of state-wide interest or a matter of local interest, nor do we deem it necessary on this appeal to pass upon the question of the authority of the district attorney to bring this suit.
It is our conclusion that the bill states no grounds for equitable relief, and hence it becomes unnecessary for us to pass upon other questions presented.
Unlike the case of State, ex rel v. Quinn, et al, 217 Miss. 567, 64 So.2d 711, the bill in this cause does not charge a nuisance, nor does it allege facts constituting a nuisance, and hence it can not be maintained upon the grounds that it seeks to abate a nuisance of local interest.
Likewise the allegations of the bill are insufficient to charge a violation of Section 2286 of the Mississippi Code of 1942, declaring it to be a misdemeanor to show or exhibit to public view on a screen or otherwise any obscene, indecent or immoral picture. The bill does not allege that the picture is obscene, indecent and immoral, and, therefore, it is insufficient to charge an offense under said Section 2286 of the Mississippi Code of 1942, as that section has been construed by this Court in the case of Anderson v. City of Hattiesburg, 131 Miss. 216, 94 So. 163.
(Hn 2) Thus it appears that the bill charges neither a public nuisance nor a crime, even if it be conceded that such grounds would afford to the State a basis for relief by a suit in equity. Under the general allegations of the bill, we are unable to find any ground which would warrant the granting of any equitable relief. We are therefore of the opinion that the trial court was correct in sustaining the general demurrer and in dissolving the injunction and in dismissing the suit. The fact that the chancellor apparently based his decree upon the ground that the district attorney was without authority to bring this suit will not preclude an affirmance of that decree, since it is supported upon the ground that the allegations of the bill were insufficient to entitle the complainant to any equitable relief. ". . . where the chancellor bases his final decree, or any other decree, on one ground which is insufficient or erroneous, if there be another ground upon which the decree may be supported it must be affirmed." Griffith's Mississippi Chancery Practice, 2d ed., Note, p. 743. Lee v. Memphis Publishing Company, 195 Miss. 264, 14 So.2d 351.
It accordingly follows that the decree of the court below must be, and it is, affirmed.
Affirmed.
Roberds, P.J., and Lee, Arrington and Ethridge, JJ., concur.