Opinion
No. 37685.
December 11, 1950.
1. Intoxicating liquors — nuisance — injunction.
The statute which authorizes the abatement as a nuisance of any place where liquors are found, kept or possessed does not contemplate that the proceeding shall be solely in rem against the premises or solely in personam against the person or persons responsible for the nuisance, but the identity of the person or persons responsible must be ascertained and adjudicated, and the injunction as authorized by the statute may issue only against the person or persons, their agents, servants or employees who have been so ascertained and adjudged. Sec. 2646 Code 1942.
2. Intoxicating liquors — nuisances — injunction.
A decree under the statute mentioned is in personam against the person or persons against whom the decree is rendered and operates in rem against the particular premises insofar as concerns the illegal use of such premises; and in order to accomplish the purposes of the statute it is necessary to show, first, the facts constituting the nuisance, and, second, the identity of the person or persons responsible therefor, and then to direct issuance of the injunction against such person or persons, their agents, servants or employees. Sec. 2646 Code 1942.
Headnotes as approved by Holmes, C.
APPEAL from the chancery court of Adams County; R.W. CUTRER, Chancellor.
Berger Callon, for appellants.
So far as we have been able to ascertain, this is the first time any state in the Union has ever been called upon to decide the question whether an injunction in rem will lie against a building or place of business in the absence of any proof whatsoever as to ownership, occupancy or operation of the building or place of business.
In this case, the proof showed that witnesses for appellee purchased several bottles of whiskey from someone unknown to them who was, at the time of the purchase, behind the counter in the building or place of business, namely, "The Union Center".
It is admitted in the agreed statement of facts that there was no proof whatsoever that the appellants, C.R. Vermillion and J.M. Hall, owned, controlled, occupied, operated or exercised any control whatsoever over said building in question; and that there was no proof of any kind as to the identity of the person or persons who were alleged to have sold whiskey to appellee's witnesses.
There is no question but that, under proper proof, an injunction will lie under Sec. 2646 Code 1942. This section, however, is quasi-criminal and most certainly the Legislature never intended that individual citizens of this state might be enjoined in the absence of proof of their ownership, operation and control of the premises, nor was it ever intended that an injunction in rem would issue.
Since obviously a building cannot be tried and convicted under the criminal laws of this state, the relief intended to be given by the foregoing section was against the person or group of persons committing the illegal act. While it is true that the proof did show that several bottles of whiskey were purchased by appellee's witnesses from an unknown person behind the counter, who appeared to be in charge of the establishment, can it be said with any degree of reasonableness that this person, was, in fact, in charge of the building? In the absence of any proof whatsoever, does any presumption that he was in charge of the building arise? And if such presumption should arise, could a building be found in contempt of court?
It was manifestly erroneous for the court below to enjoin these appellants from committing an illegal act in the premises complained of in the absence of any proof whatsoever that they owned said building, or were tenants in occupancy thereof or exercised any control whatsoever over said building.
True it may be urged that these appellants should not be heard to complain of an injunction against them since the injunction prohibits the doing of an illegal act. But to enjoin these appellants from doing an illegal act and not enjoin every other citizen of this state from committing illegal acts, in the absence of any proof whatsoever, amounts to little more than gross injustice and rank discrimination.
Injunctions are in their very essence actions in personam and not in rem, and the case of Caverella v. State, 186 So. 653, is not authority for holding otherwise. While the Mississippi Supreme Court has never passed upon this precise question, this Court held in Sillers v. City of Picayune, 202 Miss. 741, 32 So.2d 450, in a prosecution for unlawful possession of intoxicating liquor, that the burden is on the State to establish the defendant's guilt as required by law, and that the defendant is presumed to be innocent until this is done. In that case, the evidence showed that one and one-half pints of whiskey and one pint of gin were found in a cabinet in defendant's cafe, but that a number of persons other than the defendant had access to the cabinet and that they actually used the cabinet in the discharge of their duties for personal convenience. See also Ratcliffe v. State, 199 Miss. 866, 26 So. 69; Graham v. State, 190 Miss. 887, 2 So.2d 150; Medlin v. State, 143 Miss. 856, 108 So. 177; King v. State, 147 Miss. 31, 113 So. 173; Pickle v. State, 151 Miss. 549, 118 So. 625; Grice v. State, 167 Miss. 771, 150 So. 659.
In view of these decisions, to uphold the lower court's issuance of an injunction against these appellants, in the absence of any proof whatsoever of their ownership, control or operation of the premises and building wherein the illegal act is alleged to have been committed, or any knowledge or consent on their part of the commission of any illegal act therein, would be a denial of due process of law and clearly a violation of their constitutional rights under the Constitutions of the United States and the State of Mississippi.
Walter D. Coleman, for appellee.
State, ex rel. District Attorney v. White, et al., 178 Miss. 542, 173 So. 456, was a case in which this honorable Court reversed a dismissal of a bill by the lower court in which the State, on the relation of the district attorney, had brought a civil cause in chancery court to abate a liquor nuisance. In said case, this Court held that the "place of business in which intoxicating liquors were kept for use and sale" should be abated as a nuisance.
In the case of State ex rel. District Attorney v. Ingram, et al., 176 So. 392, this honorable Court held that a suit to abate a common nuisance on the grounds that liquor was stored and sold in a certain building should have been sustained by the lower court, the same being a chancery court. In said case, the Court held that circumstantial evidence is admissible in civil cases where consistent with the theory sought to be established, and inconsistent with any other theory, where it amounts to a high degree of probability. The Court further held "that the place constituted a nuisance". It was further held in said case that the fact that the defendant in said bill of complaint had a federal license to sell whiskey and other intoxicating liquors, coupled with other evidence, established the fact that he did sell liquor, and needed that license for protection from federal prosecution.
In the case of Murphy v. State, 32 So.2d 875, this honorable Court held that Sec. 2646 Code 1942, above cited, is a constitutional exercise of legislative prerogative, at least in so far as it authorizes the abatement of any place as a nuisance, and the issuance of injunction against its maintenance.
In view of the foregoing cases it is the contention of appellee that the law of Mississippi is well established in the matter at hand and that the chancellor, in the court below, was absolutely justified in the issuance of the injunctions complained of by appellants.
This is an appeal from a decree of the Chancery Court of Adams County, adjudging the premises known as the Union Center, consisting of the first floor of a building located on Main Street in the City of Natchez, to be a common nuisance upon the ground that intoxicating liquors were found, kept or possessed therein, and ordering the abatement of such nuisance, and making permanent and perpetual a temporary injunction theretofore issued enjoining the owners and operators of said premises and any and all other persons from keeping or possessing intoxicating liquors on said premises contrary to the prohibition laws of the State of Mississippi. The action was instituted against C.R. Vermillion and J.M. Hall, the appellants here, as the alleged owners and operators of the premises known as the Union Center, and was originally brought under the provisions of Sections 1073 and 2646 of the Mississippi Code of 1942, the former section having reference to violations of the gaming laws, and the latter section having reference to violations of the prohibition laws. No relief was granted under the provisions of said Section 1073, and we are therefore concerned on this appeal only with the action of the trial court in undertaking to abate by writ of injunction the alleged nuisance under the provisions of said Section 2646, which reads as follows:
"Section 2646. Clubs, vessels, boats, place, or room, liquor found in, nuisance abated by injunction. — Any club, vessel or boat, place or room where liquors are found, kept or possessed or any boat or vessel used in any of the waters of this State in conveying any intoxicating liquors or any person with intoxicating liquor in their possession or under their control into or in this State shall be deemed to be a common nuisance and may be abated by writ of injunction issued out of a court of equity upon a bill filed in the name of the State by the Attorney-General or any district or county attorney whose duty requires him to prosecute criminal cases on behalf of the State, in the county where the nuisance is maintained, or by any citizen or citizens of such county, such bill to be filed in the county in which the nuisance exists. And all rules of evidence and the practice and procedure that pertain to courts of equity generally in this State may be invoked and applied in any injunction procedure hereunder. Upon the abatement of any such place as a nuisance the person found to be the possessor or owner of such liquor may be required by the court to enter into a good and sufficient bond in such amount as may be deemed proper by the court, to be conditioned that the obligor therein will not violate any of the prohibition laws of the State of Mississippi for a period not to exceed two years from the date thereof. The failure to make such bond shall be a contempt of court and for such contempt the person or party shall be confined in the county jail until such bond is made, but not longer than two years. Said bond shall be approved by the clerk of the court where the proceedings were had and shall be filed as a part of the record of such case."
A hearing was had for the issuance of a temporary injunction and evidence was introduced thereon, and at the conclusion thereof the court ordered the issuance of a temporary injunction. The writ of injunction was then issued and was directed not to any named party or parties but "to the owners and operators of the Union Center, the business therein and any and all persons on, in or about said premises." The officer undertook to execute the writ by serving same on the appellants, C.R. Vermillion and J.M. Hall. When the case came on for final hearing, the parties agreed that the same evidence introduced on the hearing for a temporary injunction might be considered on the final hearing, and, upon consideration thereof, the court rendered its final decree. The final decree of the court adjudged the premises in question to be a common nuisance because intoxicating liquors were found, kept, and possessed therein in violation of the prohibition laws of the state, and ordered that the same be perpetually abated, and that the temporary injunction theretofore issued be made permanent and perpetual, and directed that "the owners and operators of said premises and any and all other persons" be perpetually and permanently enjoined from keeping or possessing intoxicating liquors on said premises contrary to the prohibition laws of the state.
A stipulation of facts was entered into by counsel for the respective parties and filed for consideration on this appeal. By this stipulation it was agreed that the proof showed that whiskey was sold to witnesses for appellee by someone at the Union Center who was standing behind the counter and appeared to be in charge but whose identity or name was not disclosed, and was also agreed that there was no proof showing that appellants owned the building or had control thereof, or that any person under their control or employment ever sold or possessed intoxicating liquors therein.
It was further agreed by this stipulation that the sole question for determination on this appeal is whether or not under the facts an injunction should issue against the appellants individually, or should issue against the place of business in the absence of proof as to the identity of the owners and operators of the business. It is not clear whether it was intended by the parties that the facts set forth in the stipulation should be considered as the sole facts for consideration on this appeal, or whether the same should be considered as supplemental to the evidence disclosed by the record. This becomes immaterial, however, since it appears both from the stipulation and the evidence that (Hn 1) there is absolutely no proof that appellants owned, operated, controlled, or conducted the premises known as the Union Center, or that they, their servants, agents, or employees had any connection whatever with the same. The court did not adjudicate that appellants were the owners and operators of the premises nor did it adjudicate who the owners and operators thereof were. Therefore, the writ of injunction directed to the owners and operators of the premises was directed to unascertained and unknown persons; and the officer was no more warranted in serving it upon appellants than he was in serving it upon a total stranger to the proceedings.
It is not enough under said Section 2646 that the nuisance therein defined be found and adjudged to exist, but if the laudable purpose of the statute is to be accomplished the identity of the person or persons responsible for the nuisance must also be ascertained and adjudicated, to the end, as the statute provides, that the nuisance so found to exist may be abated by a writ of injunction against the party or parties responsible therefor.
The statute contemplates the abatement of the nuisance by a writ of injunction. It is not contemplated that proceedings thereunder shall be solely in rem against the premises in which the nuisance is found to exist or solely in personam against the person or persons responsible for the nuisance.
The purpose of the statute is to provide by injunction for the abatement of the nuisance found to exist, and such purpose can only be accomplished by an injunction against the person or persons, their agents, servants or employees who may be ascertained and adjudged to be responsible for the nuisance. An injunction issues against persons and does not issue to suppress a business as such. 43 C.J.S., Injunctions, Section 34, page 467.
(Hn 2) A decree directing the issuance of an injunction under said Section 2646 is in personam against the person or persons against whom the same is rendered and operates in rem against the particular premises insofar as concerns the illegal use of such premises.
In order to be enforceable the decree must be definite and certain as against some known person or persons against whom the same is to operate. The relief thereby sought to be granted should run only against those who are parties, their servants, agents or employees, and should not attempt to bind those not in privity with such parties and not named or served as defendants to the action. 28 Am. Jur., p. 472.
The decree rendered by the court below did not attempt to adjudicate the identity of the owners or operators of the premises complained of. In fact, there was no proof before the court upon which to base such adjudication. Yet the decree, and the injunction thereby made permanent, was made to run against unascertained owners and operators of the premises, and in addition thereto against "any and all other persons" whether such other persons be parties to the proceedings or in any manner responsible for the operation of the premises or not.
In order to accomplish the purpose of the statute it was necessary to show, first, the facts constituting the nuisance, and, second, the identity of the person or persons responsible therefor, and then to direct the issuance of the injunction against such person or persons, their servants, agents or employees.
We think the decree was so broad, indefinite, and uncertain as to be unenforceable.
We are of the opinion, therefore, that the decree of the court below should be reversed and the cause remanded.
Reversed and remanded.
The above opinion is adopted as the opinion of the Court, and for the reasons therein indicated the case is reversed and remanded.