Opinion
No. 29495.
November 2, 1931.
1. INJUNCTION.
Injunction will lie to restrain prosecutions in cases wherein exercise of property rights is sought to be interfered with by repeated prosecutions under void ordinance.
2. MUNICIPAL CORPORATIONS.
Municipalities have only such authority to adopt ordinances as is expressly or impliedly given by state.
3. MUNICIPAL CORPORATIONS.
Ordinances must be reasonable, consistent with general law, and not destructive of lawful business.
4. MUNICIPAL CORPORATIONS.
Ordinance forbidding barber shops to open before 7:30 a.m. or to remain open after 6:30 p.m., held unreasonable.
5. MUNICIPAL CORPORATIONS.
Ordinance forbidding barber shops to open before 7:30 a.m. or remain open after 6:30 p.m. could not be held valid on ground it was designed to fix reasonable time for inspecting barber shops (Code 1930, sections 2396, 2417, 4891).
6. INJUNCTION.
Injunction will not lie for release of person in custody on criminal charge.
7. INJUNCTION.
Decree enjoining defendant from continuing to arrest complainant for violating ordinance, held erroneous in releasing complainant from custody, where he had been released on his own recognizance.
APPEAL from chancery court of Coahoma county; HON. R.E. JACKSON, Chancellor.
J.M. Talbot, of Clarksville, for appellant.
There were no grounds for a habeas corpus proceeding.
Section 1914, Code 1930; Ex parte Grubbs, 79 Miss. 358, 30 So. 708; Ex parte Smith, 79 Miss. 373, 30 So. 710.
The courts of equity concern themselves only with matters of property and with the maintenance of civil rights and do not interfere with issues that are purely personal or political, or with crimes.
Griffith's Chancery Practice — Injunction Par. 435.
The chancery court had no jurisdiction whatever in this cause. There are no property rights involved, in any proper sense of the word "property." The constitutionality of the ordinance if it is assailed, can be determined in the law court. Whether, if constitutional, the appellant is guilty or not, is a question exclusively of criminal jurisdiction, with which equity has nothing to do.
Pleasants v. Smith, 90 Miss. 440, 49 So. 437; Paulk v. Sycamore, 104 Ga. 24, 30 S.E. 417, 41 L.R.A. 772, 69 Am. St. Rep. 128; Crighton v. Dahmer, 70 Miss. 602, 13 So. 237.
A municipality has the power to legislate by ordinance and enforce the same, any business or enterprise within the corporate limits of the municipality, dealing with the preservation of either health or property.
Sections 2417, 2396, 489, Code 1930; Hawkins v. Hoye, 108 Miss. 282, 66 So. 741; Blue v. Beach, 155 Ind. 121, 56 N.E. 89, 50 L.R.A. 64, 80 Am. St. Rep. 195; Vicksburg v. Mullane, 106 Miss. 199, 63 So. 412.
The police power of municipal corporations extends to all matters affecting peace, health, morals, comfort, convenience and safety of its citizens.
McQuillan Municipal Corporations (1 Ed.), section 889, and sections 894, 899 and 964.
A city has the right to enforce an ordinance making it unlawful to keep open certain places of business covered by the ordinance after specified hours.
38 N.H. 526; Butte v. Paltrovich, 30 Mont. 18, 104 Am. St. Rep. 698; Churchill v. Albany, 65 Or. 442, Ann. Cas. 1915A, 1094; Porter v. Water Valley, 70 Miss. 560, 12 So. 828; Ann. 55 A.L.R. 242.
The power of the state to regulate the hours of employment has been upheld.
State v. Newman Lumber Co., 102 Miss. 802, 59 So. 923, 45 L.R.A. (N.S.) 851; Buckeye Cotton Oil Co. v. State, 103 Miss. 767, 60 So. 775.
The power of a city by ordinance, to regulate the hours of opening and closing barber shops has been upheld.
Falco v. Atlantic City et al., 122 Atl. Rep. 610; Barbier v. Connolly, 13 U.S. 27, 5 Sup. Ct. 357, 28 L.Ed. 923; Hing v. Crowley, 113 U.S. 703, 28 L.Ed. 1145.
G.E. Williams, of Clarksdale, for appellee.
Into every charter power given a municipality to pass by-laws or ordinances there is an implied restriction that the ordinances shall be reasonable, consistent with the general laws, and not destructive of lawful business.
Johnson v. Philadelphia, 94 Miss. 34.
An ordinance requiring every person conducting a legitimate barber shop business in a town, except a few specially favored classes, to close their places of business at 6:30 P.M. cannot in any manner, directly or remotely, even tend to promote public health, public morals, the public safety, or the good order and peace of the community; but on the contrary, we think that the provision of the ordinance in question, for a violation of which the petitioner is held in custody, is an unwarranted governmental interference with the personal rights of the class and is void.
Ex parte Harrell, 79 So. 166; Johnson v. Philadelphia, 94 Miss. 34; Spann v. Gaither, 136 A. 41, 50 A.L.R. 620.
The police power of the state extends only to such measures as are reasonable, and the general rule is that all police regulations must be reasonable under all circumstances. . . . The validity of a police regulation therefore primarily depends on whether under all the existing circumstances the regulation is reasonable or arbitrary and whether it is really designed to accomplish a purpose properly falling within the scope of the police power.
6 R.C.L. 236.
A law which assumes to be a police regulation, but deprives the citizen of the use of his property under the pretense of preserving the public health, safety, comfort or welfare, when it is manifest that such is not the real object and purpose of the regulation, will be set aside as a clear and direct invasion of the right of property without any compensating advantages.
Fitzhugh v. Jackson, 132 Miss. 585, 33 A.L.R. 279.
The mere assertion by the legislature that a statute relates to the public health, safety or welfare does not in itself bring that statute within the police power of the state; for there must be obvious and real connection between the actual provisions of a police regulation and its avowed purpose, and the regulation adopted must be reasonably adapted to accomplish the end sought to be attained.
6 R.C.L. 237.
Persons engaged in the operation of barber shops are carrying on a perfectly lawful business. It is not in any sense of the word a noxious business. If the barber shops are closed at 6:30 o'clock in the evening and not permitted to open until next morning, there will a large and numerous class of citizens who cannot avail themselves of the service of barbers. The ordinances is therefore void, as being unreasonable, and it is discriminatory because it selects one particular lawful business that is in no wise noxious and requires those operating this business to close at a very early hour, but leaves unregulated as to hours of closing various other businesses.
Chaires v. Atlanta, 164 Ga. 755, 139 S.E. 559, 55 A.L.R. 230.
The great weight of authority and the better reasoned cases hold that, where a municipal ordinance is void and its provisions are about to be enforced, or are being enforced, any person who is injuriously affected thereby, either in his person or the use of his property, may go into a court of equity to have the enforcement of the ordinance stayed by injunction. It is immaterial that the exercise of this power will, as a consequence, protect the owner from criminal prosecution.
Fitzhugh v. Jackson, 132 Miss. 585, 97 So. 190, 33 A.L.R. 279.
A man's constitutional liberty means more than his personal freedom. It means, with many other rights, his right freely to labor, and to own the fruits of his toil. It is a curious law for the protection of labor which punishes the laborer for working. The laboring barber engaged in a most respectable, useful and cleanly pursuit, is singled out from the thousands of his fellows in other employments, and told when he shall work.
Ex parte Jintzscg, 32 L.R.A. 664.
Hence it is the general rule that a municipal ordinance must be reasonable to be valid and that the reasonableness of a municipal ordinance is a proper subject for judicial inquiry irrespective of any question as to the right of the judiciary to pass on the reasonableness of regulations enacted under the police power.
6 R.C.L. 244.
The city of Clarksdale adopted an ordinance forbidding barber shops "to be open for business before 7:30 in the forenoon, and/or to remain open for business after the hour of 6:30 in the afternoon," the first, fourth, fifth, and sixth sections of which the reporter will set out in full.
The appellee, who owns and operates a barber shop in the city of Clarksdale, violated this ordinance by remaining open for business after the hour of 6:30 P.M., was arrested therefor by the appellant, and released on his own recognizance pending trial. He again violated the ordinance in the same particular, was again arrested and released on his own recognizance pending trial. On being advised by the appellant that he would continue to arrest him each time he violated the ordinance, the appellee sued out a writ of injunction, restraining the appellant from further arresting the appellee for violations of the ordinance. On final hearing, the injunction was made perpetual.
One of the appellant's contentions is that an injunction will not lie to restrain prosecutions for the commission of crime.
An injunction will not ordinarily lie to restrain prosecutions for the commission of crime, but will lie in that "class of cases wherein the exercise of property rights is sought to be interfered with by repeated prosecutions under a void ordinance or statute." Edwards v. De Vance, 138 Miss. 580, 103 So. 194, 195; Fitzhugh v. City of Jackson, 132 Miss. 585, 97 So. 190, 33 A.L.R. 279; Quintini v. Bay St. Louis, 64 Miss. 483, 1 So. 625, 60 Am. Rep. 62; Johnson v. Philadelphia, 94 Miss. 34, 47 So. 526, 19 L.R.A. (N.S.) 637, 19 Ann. Cas. 103.
The validity, vel non, of the ordinance is rested by counsel for the appellant on two grounds, one of which is that it is a reasonable regulation of the hours a barber may work continuously at his trade.
Municipalities have only such authority to adopt ordinances as is expressly or impliedly given them by the state, and we are referred to no statute under which they are authorized to regulate hours of labor; but assuming, for the purpose of the argument, that they have the authority so to do, this ordinance cannot be upheld thereunder. "Into every . . . power given a municipality to pass by-laws or ordinances there is an implied restriction that the ordinances shall be reasonable, consistent with the general law, and not destructive of a lawful business." Johnson v. Philadelphia, 94 Miss. 34, 47 So. 526, 527, 19 L.R.A. (N.S.) 637, 19 Ann. Cas. 103.
A barber's working hours can be effectually regulated, without closing the shop in which he works, by an ordinance specifically designating his hours of work. To close the shop, therefore, in order to prevent overwork by barbers therein, unnecessarily interferes with its operation, and is unreasonable.
Another reason given for the validity of the ordinance is, that it is designed to fix a reasonable time within which the city inspectors may inspect barber shops in order to ascertain whether the city's sanitary and health ordinances are there obeyed. The authority therefor is said to be sections 2396, 2417, and 4891, Code of 1930, which authorize municipalities "to make regulations to secure the general health of the municipality . . . to prevent the introduction and spread of contagious or infectious diseases;" and to "pass sanitary laws."
The city has the right of inspection reasonably necessary for the enforcement of its health and sanitary ordinances. As we understand the argument, the necessity for the barber shop closing ordinance arises because of inconvenience to the city's inspectors of inspecting such shops during the hours the ordinance requires them to be closed. It does not, and could hardly be made to, appear that such inspection must be continuous, covering every hour a barber shop is open; and to compel the closing of barber shops between certain hours, because it will be inconvenient for the city to then inspect them, when they are open at other hours amply sufficient for such inspection, would unnecessarily and unreasonably interfere with the operation thereof.
The court below committed no error in enjoining the appellant from continuing to arrest the appellee for violation of the ordinance; but in its decree it went further, and ordered the appellee released from custody. This was erroneous for two reasons: First, a writ of injunction will not lie for the release of a person in custody on a criminal charge; and, second, the appellee was not in custody, but had been released on his own recognizance.
The decree of the court below will be reversed, and a decree rendered here making the injunction perpetual, but omitting the discharge of the appellee from custody.
Reversed and decree here for the appellee.