Opinion
No. 33855.
November 20, 1939. Suggestion of Error Overruled January 29, 1940.
1. CRIMINAL LAW.
Under statute removing privilege against self-incrimination in proceedings based on violation of liquor law, and providing that no person shall be subject to penalty or forfeiture on account of transactions concerning which he may testify, in suit by tax collector to enjoin defendant from selling liquor at place of business and to abate business as nuisance, defendant was immune from further prosecution of cause after testifying that he sold liquor in connection with dry goods business, and hence denial of motion to dissolve temporary injunction and dismiss bill was error, since defendant's admission of guilt subjected him to forfeiture of both dry goods and liquor business (Code 1930, secs. 1991, 2000, 2001, and sec. 2007, as amended by Laws 1938, chap. 349).
2. FORFEITURES.
The term "forfeiture" has a comprehensive meaning and expresses the result which flows from a failure to comply with the law.
3. INTOXICATING LIQUORS.
Under statute providing that chancery court has authority to suppress as a nuisance "place of business" where liquor is sold in violation of statute, and conferring concurrent jurisdiction on chancery court with courts of law for recovery of penalties provided by statute, the "place of business" liable to suppression within statute as applied to sale of liquor in connection with mercantile business, included not only liquor business but mercantile business with which it was carried on (Code 1930, sec. 2001).
4. INTOXICATING LIQUORS.
The provision of statute that when place where intoxicating liquors are kept or possessed has been abated as a nuisance the court may require the person keeping liquor to enter into bond conditioned that he will not violate prohibition laws of state has no application to action brought by state tax collector, where authority to sue under statute was expressly conferred on others than state tax collector, since tax collector was excluded by necessary inference (Code 1930, sec. 2007, as amended by Laws 1938, chap. 349).
APPEAL from the chancery court of Leflore county; HON. R.E. JACKSON, Chancellor.
O.L. Kimbrough and Bradford Lamb, all of Greenwood, for appellant.
Appellant contends (1) that he was given full and complete immunity under Section 1991 of the Mississippi Code of 1930 when he was required by complainant to be sworn as a witness and to testify. (2) That his motion should have been sustained. (3) That, for the foregoing reasons, the trial court erred in granting the temporary injunction. (4) That the trial court should have sustained appellant's motion to dissolve said temporary injunction and dismiss complainant's bill. (5) That, wholly independent of and in addition to the fore-going, the scope of said temporary injunction is beyond the law and the authority of the court.
The original bill filed herein was "based upon the provisions of Section 2000 of the Mississippi Code of 1930." Thereafter, appellee amended the prayer of his bill so as to seek relief which he could not obtain under said Section 2000. The language employed in and relief sought by said amendment makes it obvious that said amendment was made in an effort to invoke the provisions of Section 2007 of the Code as amended by Chapter 349 of the Acts of 1938. Manifestly, appellee could not have proceeded originally under Section 2007 of the Code as amended because he, as State Tax Collector, is not authorized to institute any proceeding under Section 2007.
The sole relief specifically prayed for under the original bill, aside from assistance by way of writs of attachment and garnishment, was for a personal decree against appellant, except the formal concluding prayer for other, further, general, and special relief. There was no prayer for a temporary or other injunction or restraining order; no prayer for the abatement of any nuisance; no prayer to require appellant to execute any bond of any character. Appellee for some reason, or reasons, not disclosed by the record, possibly on the theory that Sections 2000 and 2007 as amended are in pari materia, and that he could accomplish by indirection that which he could not accomplish directly, amended his bill so as to seek the above relief. We think the case of Pigford et al. v. State, etc., 183 So. 259, conclusively disposes of any such contention.
Appellee's prayer seeks relief never dreamed of in Section 2000 of the Code. In addition thereto, it seeks relief far beyond the scope of Section 2007 as amended. To express it another way, appellee is seeking not only the fixed money penalty provided for by Section 2000 of the Code, but is seeking the imposition of other and additional penalties, some of which are prescribed in certain circumstances by Section 2007 as amended, and some of which are not provided for by any law.
State v. McPhail, 180 So. 387, 182 Miss. 360.
It is appellant's contention, and it is for the purpose of settling that contention that this appeal was permitted by the trial court and is prosecuted by appellant, that a judgment should be entered in this court overruling and reversing the action of the court below and dismissing appellee's suit. This contention rests squarely and firmly on Section 1991 of the Code of 1930, and upon the decisions of this and other courts.
State v. Marshall, 56 So. 792, 100 Miss. 626; City of Jackson v. Belew, 110 Miss. 243, 70 So. 346.
We cannot anticipate what contentions will be made by appellee in this court except in the light of the contentions made by him in the court below. We cannot conceive how it can be contended that Section 2000 of the Code does not impose a "Penalty", particularly in view of the fact that this court in the Marshall case, supra, in referring to his liability, denominated such liability as a "penalty" and, in the opinion of the court in that case, used the words "penalty" and "penalties" no less than twenty-three times. If, then, Section 1991 declares anything, it emphatically declares that appellee cannot recover the personal decree which he seeks against appellant, as he undoubtedly is seeking to recover a penalty.
If the money penalty cannot be exacted of appellant in this case because of the immunity given him by Section 1991 of the Code, it follows necessarily that appellee is totally without other or further relief because the other and further relief sought by him is in the nature of a penalty, a fine, a forfeiture, or punishment. When the right to recover the penalty ceases to exist under Section 2000, the right to an injunction against the defendant under that section also ceases to exist.
Section 1991 of the Code has repeatedly been construed by this court in criminal cases so frequently that, except out of an abundance of caution we would content ourselves with merely invoking its aid and submitting the question to this court.
Carmichael v. Foley, 1 Howard 591; Goodstein v. Bd. of Miss. Levee Commissioners, 153 Miss. 783, 121 So. 856; Lucas v. State, 130 Miss. 8, 93 So. 437; Hosey v. State, 136 Miss. 5, 107 So. 577; Thornton v. State, 143 Miss. 262, 108 So. 709; Evans v. State, 128 So. 737; State v. Billups, 174 So. 50, 179 Miss. 352; Brown v. Walker, 161 U.S. 591, 40 L.Ed. 819; Boyd v. U.S., 116 U.S. 616, 29 L.Ed. 746; Emery's case, 107 Mass. 172, 9 Am. Rep. 22; Arndstein v. McCarthy, 254 U.S. 71, 65 L.Ed. 138; Gouled v. U.S., 255 U.S. 298, 65 L.Ed. 647; Weeks v. U.S., 58 L.Ed. 652; Silverthorn v. U.S., 64 L.Ed. 319; Amos v. U.S., 65 L.Ed. 654; Tucker v. State, 128 Miss. 211, 90 So. 848; Falkner v. State, 134 Miss. 253, 98 So. 691.
The very object of the statute, Section 1991, is to compel a witness to appear and testify, and as a reward for so doing he is given full and complete immunity, amnesty and pardon in respect to every matter and thing under investigation concerning which he may testify. Thus, we insist, when counsel for appellee required appellant to testify the case of J.B. Gully, State Tax Collector, v. Foaad Malouf, in legal effect, ceased to exist; if not then, certainly, when this appellant filed his motion requesting the court below to refrain from signing the decree granting the temporary injunction and to enter an order dismissing the case. Appellant acted seasonably in making said motion. He renewed that motion by the motion to dissolve the temporary injunction after the order directing its issuance had been entered.
The very object of this appeal is to avoid the delay, vexation and expense of this and companion cases; not only to this appellant and other defendants but to the court below and all parties interested. Appellant acted promptly and seasonably as he had a right to do and as it was his duty to do and now with the permission and approval of the court below comes to this court seeking to be relieved of further expense, annoyance and vexation by appellee.
Counsel for appellee misconceive our contention in respect to the question of immunity. We do not contend that appellant is entitled to immunity because he testified on the hearing for the temporary injunction; we contend that he is entitled to immunity because he was required by counsel for appellee to so testify.
It is universally recognized that the sections of the Code under consideration are highly penal. Authorities in support of this statement would be utterly unnecessary. The object of these statutes is to suppress the liquor evil and this is, of course, a proceeding to penalize a wrongdoer. We shall not burden the court with authorities or definitions in support of this assertion but shall content ourselves with one reference. The word "penalize" is defined in 48 C.J. at the top of page 781, as follows: "To punish, or subject to some penalty, detriment, or disadvantage".
If a person is under restraint, under an injunction, whether temporory or permanent, he is "subject to" a penalty for violating the court's order. Several definitions of the same term "subject to" may be found in 60 C.J., page 673. One who is under an injunction is, of course, under a "liability". He is liable to be penalized for violating the terms of such injunction. The word "liability" is variously defined in 36 C.J., page 1050.
Ex parte Wimberly, 57 Miss. 437.
There is no effort on our part to contend that any person has a right to violate the law of the land, but we do not agree with counsel for appellee that a person who has been enjoined from violating Section 2000 has not been penalized. That section provides for two types of penalty, first, a money penalty and, second, a penalty by way of the placing of the defendant under an injunction, the violation of which subjects him to a still further penalty, viz., that of possible fine and imprisonment.
There is absolutely no difference in principle nor can any be shown, between the men who has been convicted in a court of law of selling liquor and sentencing to pay a fine therefor and required to give a bond to keep the peace and be of good behavior on the one hand and the man who has been found by the Chancery Court to have sold intoxicating liquor in violation of Section 2000 and who has been required to keep the peace and be of good behavior by virtue of a writ of injunction on the other. In the first instance, the penalty for breaching the bond is a forfeiture thereof. In the second instance, the penalty for violating the injunction is a fine or jail sentence, or both.
Appellee is in exactly the same position as a peace officer who invades the property of a person without authority of law and there discovers evidence of a violation of the law, and who then rushes off and procures a search warant, returns and "re-discovers" such evidence. This court has repeatedly held that such procedure cannot and will not be tolerated.
Appellee is in exactly the same position as a district attorney would be who calls a witness before the grand jury, requires him to be sworn and to testify, and then finds himself confronted with a plea of immunity in the shape of a motion to quash the resulting indictment because the indictment was for the specific occurrence or transaction about which the defendant had testified before the grand jury. This court has repeatedly held that such procedure cannot and will not be tolerated.
Gardner, Denman Everett, of Greenwood, for appellee.
There is but one question for decision in this case, and that is whether appellants are entitled to immunity under Section 1991 because they testified on the hearing of the temporary injunction. Any other matters raised are collateral and immaterial and we shall direct ourselves primarily to this one proposition.
The word "prosecution" as used here conveys the usual and ordinary meaning of a criminal proceeding. As related to the violation of the prohibition law, it means any action brought in the usual criminal procedure in the criminal courts and certainly cannot be extended by any possible construction to include a hearing for a temporary injunction. The appellant does not contend that it does. This is certainly not a prosecution.
A temporary injunction prohibiting the sale of intoxicating liquor and violation of the prohibition laws of the State of Mississippi is not a forfeiture and has none of the characteristics of a forfeiture.
25 C.J. 1170, Sec. 43.
The term "penalty" has a somewhat broader meaning than prosecution and forfeiture, but even so its meaning has been clearly defined. It is a cardinal rule of construction of statutes that words are given their usual and ordinary meaning.
Penalty is defined in 25 C.J. 1178, Sec. 72, as follows: "A penalty is a sum of money of which the law exacts payment by way of punishment for doing some act that is prohibited or omitting to do some act that is required to be done. The term involves the idea of punishment, either corporal or pecuniary, although its meaning is generally confined to pecuniary punishment; and its character is not changed by the mode in which it is inflicted, whether by a civil action or a criminal prosecution. Accordingly, the term "penalty" includes an extraordinary liability to which the law subjects the wrongdoer in favor of the person wronged, not limited to the damages suffered. . . ."
Taylor v. Matchell, 1 How. 596.
Does the ordering of a temporary injunction against the unlawful sale of intoxicating liquor at a place of business and from the violation of the prohibition laws of the state until a final hearing amount to a penalty within the scope of the foregoing definitions? We think that it does not for several good reasons.
First, because the function of a temporary injunction is not to penalize.
Second, punishment is not a part of the intent, object, or operation of a temporary injunction.
1 High on Injunction, page 3.
Third, the appellant cannot be subjected to any penalty or forfeiture until a final hearing of this cause.
The appellee filed the bill in this case against appellant, Foaad Malouf, basing his authority so to do on Sections 2000, 2001 of the Code of 1930, and Section 2007, as amended by Chapter 349 of the Laws of 1938, to enjoin him from further carrying on the sale of intoxicating liquors at his place of business on Highway No. 49 in Leflore County; to abate the business as a nuisance; to recover the penalties provided by the statute; and to require appellant to execute a bond in the sum of $2,000 conditioned that he would not violate the prohibition laws for a period of two years. Malouf denied the allegations of the bill. The State Tax Collector made a motion for a temporary injunction, which was heard on evidence. On the hearing, he put on the witness stand appellant, Malouf, and other witnesses, and proved the allegations of the bill. By Malouf he proved that he was engaged in the dry goods and grocery business on Highway No. 49 in Leflore County, and in connection therewith sold intoxicating liquors. A temporary injunction was awarded, the restraining feature of which is in this language: "That the Defendant Foaad Malouf and any and all persons acting for and on his behalf are hereby and herewith enjoined and restrained from unlawfully selling or permitting to be sold spirituous liquor at said place of business and from further violation of the prohibition laws of the State of Mississippi until a final hearing shall have been had in this cause." A motion was made to dissolve the temporary injunction and dismiss the bill, which motion was overruled. From that decree, an appeal was granted to settle the principles of the cause.
The question in the case is whether appellant, Malouf, under the provisions of Section 1991 of the Code of 1930, was entitled to have the cause dismissed upon the ground that on the hearing of the motion for a temporary injunction, he was put on the witness stand by the State Tax Collector and in his testimony admitted his guilt. The statutes involved in the order stated above follow:
"2000. Any person who may sell or give away malt, vinous or spirituous liquors unlawfully, or who shall allow the same to be sold or given away at his place of business, for any purpose whatever, or shall knowingly permit any person not interested in or connected with such business to keep and drink or give away at such place of business any vinous, malt or spirituous liquors, shall be subject to pay to the state, county, city, town or village, where the offense is committed, each, the sum of five hundred dollars; and the state, county, city, town or village or any taxpayer of the state, county, city, town or village in the name thereof, or the state tax collector, or any sheriff within the county acting for them, may sue for and recover civilly, either jointly or separately, each said sum of five hundred dollars; and such civil suit may be commenced by attachment without bond."
"2001. The chancery court shall have concurrent jurisdiction with courts of law to entertain suits under the preceding section for the enforcement thereof instituted by the state, county, or any city, town, or village, or by any taxpayer thereof, in the name of the state, county, city, town or village, or by the state tax collector, or by any sheriff within his county acting for them, and the chancery court shall have authority to suppress as a nuisance any place of business where the preceding section is violated, and by proper judgments and orders, punish and restrain the violators thereof."
"2007. [As amended by Chapter 349, Laws of 1938] 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 or 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."
"1991. No person shall be excused from attending and testifying before a grand jury, or before any court, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of this chapter, or any amendment thereof, on the ground and for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subject to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before the grand jury, or any court; Provided, that no person so testifying shall be exempt from prosecution or punishment for perjury in so testifying. Any person who shall neglect or refuse to so attend or testify, or to answer any lawful inquiry, or to produce books or other documentary evidence, if in his power to do so, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not less than one hundred dollars or more than five hundred dollars, or by imprisonment for not more than ninety days, or by both such fines and imprisonment."
We are of opinion that under the provision of Section 1991, Malouf, by his testimony, was rendered immune to the further prosecution of this cause, and we reach that conclusion upon the following considerations: Manifestly, under the allegations and prayer of the bill, it was sought to subject Malouf to penalties and forfeitures. They are expressly provided for by the statutes. It is argued, however, that, by the temporary injunction, the court only enjoined the further prosecution of the business and imposed no penalty or forfeiture. The term "forfeiture" has a very comprehensive meaning, and expresses the result which flows from a failure to comply with the law. 25 C.J., Section 43, p. 1169. Malouf's admission of guilt subjected him to the forfeiture of both his liquor business and his dry goods and grocery business.
Section 2001 expressly provides that in such a case the chancery court has authority to supress as a nuisance the place of business where the liquor is sold, and, in addition, it is given concurrent jurisdiction with the courts of law for the recovery of the penalties provided by Section 2000. The suppression of the place of business means not only the liquor business, but the mercantile business. The right to carry on both is forfeited. Whether the chancellor has the authority, in his discretion, to decree a forfeiture of the business and decline to award the penalties, or vice versa, we are not called on to decide. Certainly when a case is made he is required to do one or the other, if not both. He was without authority to confine the relief to enjoining the sale of liquor alone — the commission of a criminal offense.
Section 2007, as amended by Chapter 349 of the Laws of 1938, providing that when the place where intoxicating liquors are kept or possessed has been abated as a common nuisance, the Court may require the person keeping or possessing such liquor to enter into a good and sufficient bond, conditioned that the obligor will not violate the prohibition laws of the state for a period of as long as two years, has no application to an action brought by the State Tax Collector. The authority to sue under that statute is expressly conferred on others than the State Tax Collector. He is excluded by necessary inference.
Reversed and judgment here for the appellant.