Kennington-Saenger Theatres, Inc. v. State Ex Rel. Dist. Atty.

The state, on relation of the District Attorney for the Seventh Judicial District of Mississippi, on September 16, 1942, gave the circuit court of the First Judicial District of Hinds County to understand and be informed by a proceeding in the nature of quo warranto that a judgment of forfeiture and ouster should be rendered against the appellant, Kennington-Saenger Theatres, Inc., a Delaware corporation, and that its right to exercise any of the franchises granted to it should be forfeited, because that, on each Sunday prior thereto, beginning with the 12th day of April, 1942, the said corporation had "in open defiance of law engaged in, shown forth, enacted and exhibited . . . interludes, farces, and plays, and other like shows, by exhibiting moving pictures thereof, . . ., for an admission price, . . . in express violation of Section 1133 of the Mississippi Code of 1930, Section 2370, 2 Mississippi Code 1942, . . . as interpreted by the Supreme Court of Mississippi, . . .; and has persistently refused to comply with the laws of the State . . ." Wherefore, the petitioner prayed judgment of forfeiture and ouster against the said corporation, and that its right to do business throughout the state be forfeited. After a hearing the jury rendered a verdict accordingly, but the court entered a judgment thereon to the effect that "the right and franchise of the Kennington-Saenger Theatres, Inc., defendant, to operate theatres and moving picture shows in the City of Jackson, Mississippi, upon the Sabbath Day be and is hereby cancelled and set to naught." From this judgment the appellant, Kennington-Saenger Theatres, Inc., prosecuted this appeal and the appellee has taken a cross-appeal, it being the contention of the appellee that if the judgment as rendered by the trial court was unauthorized under Chapter 59, Code of 1930, (Title 9, Chapter 2, Code of 1942), this court should on appeal enter such judgment as the trial court should have entered, that is to say, a judgment of forfeiture and ouster whereby the right and franchise of the said corporation to do business throughout the state would be forfeited.

We are of the opinion that the judgment as rendered was unauthorized for the reason that any action which seeks by quo warranto to forfeit the right and franchise of a corporation to do business throughout the state is one on behalf of the general public of the entire state and could be brought only by the Attorney-General, as the chosen representative of the whole people. Nor did the limited character of the judgment eliminate the question of the court's want of jurisdiction to grant relief, since our Code chapter on quo warranto undertakes to cover the entire subject matter of forfeiture and ouster as to corporations doing business in this state and provides for the rendition of no such judgment as that here appealed from; and, moreover, the verdict of the jury, returned pursuant to a peremptory instruction for the state under the pleading and proof, did not warrant the entry of a judgment otherwise than in conformity therewith. It is not within the province of a trial court to limit the scope of its judgment in a quo warranto proceeding on account of the fact that the state has purported to appear through one legal representative rather than another. Then, too, a prayer for general relief pursuant to which a court of equity may grant such relief as to it may seem meet and proper, is unknown in a court of law and judgments rendered therein should substantially conform to the allegations of the pleading, the recovery sought, and the proof.

It was the duty of the trial court to determine in the outset the legal capacity of the district attorney to appear for the state in seeking a state-wide forfeiture of the corporate rights and franchises of the appellant to do business anywhere within its domain. That this question should have been determined from the face of the proceeding itself cannot be successfully challenged. Capitol Stages, Inc., et al. v. State ex rel. Hewitt, District Attorney, 157 Miss. 576, 128 So. 759. Unless this officer had such authority, then the trial court was without jurisdiction to render any judgment that would be binding either on the state or the defendant, except a judgment of dismissal without prejudice to the right of the state to sue by its proper officer — the Attorney-General. It was so held on the question of the court's jurisdiction in the recent cases of State ex rel. v. Stewart, 184 Miss. 202, 184 So. 44, 46, 185 So. 247, and City of Natchez v. Craig, State Tax Com'r, 191 Miss. 567, 3 So.2d 837, 838, and in which former case the court said: "The State could not be bound by an appearance in court on its behalf by an unauthorized official to any greater extent than an individual could be bound by the act of a person assuming to sue on his behalf without authority." And, in the case of Drummond v. State, 184 Miss. 738, 185 So. 207, 209, the court announced the rule to be that: "The Supreme Court in all cases is bound to inquire into its own jurisdiction, and decline to exercise a power not conferred upon it by law. And, if the question of jurisdiction is not raised by either of the parties to the cause, it is the duty of the Supreme Court to raise it of its own motion." Therefore, it is immaterial whether the defendant specifically challenged by demurrer the legal capacity of the district attorney to bring this proceeding for state-wide relief, since his right to do so goes to the very power and jurisdiction of the court to act at all in the premises.

As aptly stated in the case of Commonwealth, etc., v. American Baseball Club of Philadelphia, 290 Pa. 136, 138 A. 497, 500, 53 A.L.R. 1027, in regard to whether quo warranto was the proper remedy, "it is important at its threshold to consider who brought the proceeding. It was initiated by the Attorney-General, the chief law officer of the commonwealth, and necessarily has behind it the approval of the state's highest executive officer, the Governor. The people's mandate to him in their fundamental law (Constitution, art. 4, Section 2 [P.S. Pa.]) is: `The supreme executive power shall be vested in the Governor, who shall take care that the laws be faithfully executed.'" Likewise, Section 116, Constitution of Mississippi 1890, provides that: "The chief executive power of this state shall be vested in a governor . . ." Section 123 of said Constitution provides that: "The governor shall see that the laws are faithfully executed." To that end Section 173 of this Constitution provides that: "There shall be an attorney general elected at the same time and in the same manner as the governor is elected . . ." The duties of the Attorney-General were not prescribed by the Constitution, nor did it provide that they would necessarily have to be prescribed by the legislature. They existed at common law, as held in State v. Key, 93 Miss. 115, 46 So. 75; Capitol Stages, Inc., v. State ex rel., etc., supra. The creation of the office of Attorney-General by the Constitution vested him with these common law duties, which he had previously exercised as chief law officer of the realm. And, in the case of Capitol Stages, Inc., v. State ex rel. Hewitt, District Attorney, supra [157 Miss. 576,128 So. 764], this court said: "As to all litigation, the subject-matter of which is of state-wide interest, the Attorney-General alone has the right to represent the state." The question is therefore presented in the case at bar as to what is the "subject matter" of the present suit. It is not whether the defendant has violated the criminal laws within the Seventh Judicial District of Mississippi, but whether, because of such alleged violation, its right to do business throughout the state should be cancelled in accordance with the allegations and prayer of this quo warranto proceeding, and in compliance with the verdict of the jury in that behalf.

In the Capitol Stages, Inc., case, supra, the court further said that at common law the Attorney-General was "`the chief legal adviser of the crown, and was entrusted with the management of all legal affairs, and the prosecution of all suits, civil or criminal, in which the crown was interested' . . .; he had the power to control and manage all litigation on behalf of the state; . . ., and maintain all suits necessary for the enforcement of the laws of the state, the preservation of order, and protection of the public rights." The court then took cognizance of the fact that the office of district attorney, which did not exist at common law, had been created by Section 174 of the same Constitution, which provided that his duties should be prescribed by the legislature. Then, notwithstanding that the legislature had by Section 1661, Code of 1906 (now Section 4363, Code of 1930, Section 3920, 3 Code of 1942), made it the duty of the District Attorney to appear in the circuit courts and prosecute all civil cases in which the state or any county in his district may be interested, and to institute and prosecute to final judgment any case in the name of the state against any person or corporation "for any violation of the constitution or the laws of this state, in order to enforce any penalties, fines or forfeitures imposed by law in any court of his district having jurisdiction, with like effect as if the suit was instituted by the attorney-general," and had likewise by the enactment of Chapter 238, Laws of 1918, given the district attorneys, along with the Attorney-General, authority to institute and defend suits arising out of any act or order of the Tax Commission or Railroad Commission, affecting the laws and revenues of the state, the court expressly declared in the Capitol Stages, Inc., case, notwithstanding that there was no ambiguity in the language of the two statutes last above mentioned, that: "It is inconceivable that the Legislature intended by these statutes to confer as large powers upon the district attorneys as are possessed by the Attorney-General. Such a construction could, and probably would, in some cases lead to such a conflict of authority between the two officers as would result in the destruction, instead of promotion, of the public interest." In that case it was held that a district attorney has no authority to represent the state in any litigation in their districts where the subject matter of such litigation is of state-wide interest as distinguished from local interest, — save as to some express statutory exceptions not here involved. That decision announced nothing new, but if it had, it has stood now for fourteen years, and instead of being qualified in any way has been reaffirmed. For instance, in White v. Lowry, 162 Miss. 751, 759, 139 So. 874, 876, it was said: "There is involved, as the basis or chief item of the suit, an important legal question; and it is more in harmony with our governmental system that the Attorney-General, who is the responsible head of the legal department of the state, shall have initial jurisdiction over those important legal questions which affect the general interests or policy of the state." See also State, etc., v. Stewart, 184 Miss. 202, 184 So. 44, 46, 185 So. 247, wherein it was said that "the attorney general is vested with both statutory and common law authority to represent the sovereign in the enforcement of its laws and protection of public rights."

This being the established rule as to legal questions which affect the general interests and policy of the state, and as to who shall institute litigation on behalf of the state, when such questions are involved, and from which we ought not to depart in order to meet some special demand, or some special situation, yet we are confronted here with the contention that the statute, Section 3054, Code of 1930, Sec. 1121, Code 1942, expressly allows proceedings in quo warranto to be brought by the Attorney-General or a district attorney, — to which we reply with that line of decisions going further back than Capitol Stages, Inc., v. State which hold to the "dominant consideration that in concrete instances there must be given to procedural statutes that construction, if possible, which will preserve the essentials of "harmony and consistency in our judicial system.'" Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 489, 492,120 So. 173, 174. Also, Choctaw County v. Tennison, 161 Miss. 66, 74, 134 So. 900; Caperton v. Winston County Fair Ass'n, 169 Miss. 503, 508, 153 So. 801; Great A. P. Tea Co. v. Davis, 177 Miss. 562, 570, 171 So. 550; Simpson County v. Burkett, 178 Miss. 44, 55, 172 So. 329.

Proceeding then to give the statute here under consideration the construction required by the cases next above cited, we must have the result that in cases of quo warranto to forfeit corporate charters or corporate rights, the Attorney-General, and he only, has the right to institute such a suit when the relief prayed is to forfeit that right throughout the state, and that the district attorney is allowed to do so only when the corporation is authorized by its charter to exercise its functions only in a certain county or judicial district of this state or where its charter powers are such that because of the essential manner of the exercise thereof, or because of exclusive physical conditions or situations, or the like, those powers cannot be exercised except in a certain territorial location in the state, so that its ouster in that territory could not be of any real interest to other sections of the state.

Here, however, the charter authorization is state-wide, and there are no exclusive physical or like conditions which confine the exercise of those powers to a restricted area within the state. It is true that, so far as this record discloses, the exercise of the corporate powers happens to be confined at present to the City of Jackson in Hinds County, but there is nothing in the nature of the business or otherwise which would confine its operation to such limited area. It may as well be pursued in any county, and for all we know such may be its future plan and program. From which it follows that the judgment here sought would constitute a restraint upon its right to operate at all on any day of the week either in the City of Jackson, or at any other place in the state, wherefore the subject matter of the litigation is state-wide, and not local.

Under the letter of the statute involved in the case of White v. Lowry, supra, it was contended that the State Auditor, who brought the suit, had the authority to do so, but such right was by the court denied since it is a fundamental rule of statutory construction of universal application that the controlling purpose is to ascertain and give effect to the intent and purpose of the legislature. And the same logic and reasoning adopted by the court in the Capitol Stages, Inc. and the White v. Lowry cases, supra, applies with equal force to the provision of Section 3054, Code of 1930, Section 1121, 1 Code 1942, wherein it provides that the information in the nature of quo warranto shall be "in the name of the state, and by the attorney-general or a district attorney."

Manifestly, it was never the intention of the framers of the Constitution in adopting Section 174 thereof, creating the office of district attorney and authorizing the legislature to prescribe his duties, that such powers should be conferred by the legislature upon this officer as would enable him to usurp the common-law duties and functions of the Attorney-General provided for under Section 173 of that Constitution. The office of district attorney was created under Section 174 for each circuit court district, and not for the entire state. When it was provided that his duties should be prescribed by the legislature, it was intended that they would be such duties as were to be performed only within his territorial jurisdiction in connection with matters local to such jurisdiction, as distinguished from matters of state-wide public interest. Such a construction would avoid any conflict between said Sections 173 and 174 of the Constitution, and would render Section 3054, Code of 1930, Section 1121, 1 Code 1942, free of constitutional objections. It was said in Russell Inv. Corp. v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102, 107, in regard to the construction of statutes that: "They (the courts) should adopt a construction that will bring it into harmony with the constitution by restricting its application to the legitimate field of legislation, whenever necessary . . . to uphold its constitutionality and carry its provisions into effect. Money v. Wood, 152 Miss. 17, 118 So. 357; Mai v. State, 152 Miss. 225,119 So. 177; Smith v. Chickasaw County, 156 Miss. 171, 125 So. 96, 705; Miller v. Sherrard, 157 Miss. 124, 126 So. 903; Chassanoil v. City of Greenwood, 166 Miss. 848, 148 So. 781; Id.,291 U.S. 584, 54 S.Ct. 541, 78 L.Ed. 1004; Tucker Printing Co. v. Board of Supervisors of Attala County, 171 Miss. 608, 158 So. 336."

The district attorney in the Capitol Stages case sought by an injunction to restrain the defendant from doing alleged irreparable injury to Highway 51, where it ran through the counties of Pike, Lincoln and Copiah in his district. The court said that: "There is no charge in the bill that appellants (Capitol Stages, Inc.) were violating their franchise, or violating the laws of the State in the use of the highway, and, if there were such a charge, under the principles above laid down, it would be a matter of state-wide public interest, and not local, and any litigation in reference thereto on behalf of the state would rest with the Attorney-General alone." And, in denying the right of the District Attorney to bring such a suit, the court further said: "The Attorney General would have in view, not purely local interests, but the paramount state-wide public interests." In that case, the district attorney complained only of what was being done in his district, as is true in the case now before us, but in that case the whole state was interested in highway 51, the same as the whole state is interested in whether or not the rights and franchises of corporations, whether domestic or foreign, to do business throughout the state should be cancelled. For instance, suppose that a district attorney should undertake by quo warranto to forfeit the right and franchise of the Illinois Central Railroad Company to do business in the state because of an alleged or admitted violation of some criminal statute in his district, or for like reason should seek to forfeit the right of the oil companies, now engaged in the exploration and development of the mineral resources of the state, to do any further business herein, or should undertake by quo warranto to oust a governor from office on the ground that the very letter of the statute grants such right to either the "Attorney-General or a district attorney." Could it then be contended that the question of whether such relief should be granted would not be a matter of interest to the people of the state as a whole even though the offense complained of had been committed within the territorial jurisdiction of a particular district attorney? These examples serve at least to illustrate the obvious necessity and importance of preserving the line of demarcation, already declared by the court to exist in this state, between the power and authority of these two respective officers, leaving it to the district attorney to proceed by quo warranto in proper cases against corporations whose right to do business is limited by the charter powers to a local territory within his district, and to proceed by quo warranto in proper cases against county and district officers, but at the same time reserving to the Attorney-General, the chosen representative of the people of the entire state, the power, authority and discretion, as the state's chief legal adviser, to determine if and when it is to the best interest of the state that such a proceeding shall be instituted against any corporation to forfeit its state-wide right to do business herein, and as to whether there should be an ouster of any state officer elected by all the people, and whose removal from and continuance in office is a matter of state-wide public concern.

It should be remembered that the sovereign state is the supposed litigant in this case; that the right to forfeit the state-wide franchise of a corporation to do business, if such right exists, may be waived; and that the responsibility of determining whether such right of forfeiture shall be waived or insisted upon must be centralized in some official who is answerable to the whole people who are to be affected thereby, if we are to avoid conflict and confusion. Imagine the intolerable situation that would prevail if a foreign corporation should be engaged in business in each of the seventeen judicial districts and several of the district attorneys should file suits against it to oust it from the entire state, because of alleged violations of the criminal law in their respective jurisdictions, and that the remainder of such seventeen district attorneys, with equal right and authority, should be opposed to the cancellation of its right to do business in the state, and especially insofar as their own districts were concerned, even though such corporation had violalated the law therein, then whose desire should prevail? Or, to state it differently, who is to give or withhold the state's consent to the forfeiture of state-wide corporate franchises, which the state in its sovereign capacity may either waive or insist upon, if not its duly authorized legal representative — the Attorney-General?

It is true that Section 4366, Code of 1930, Section 3923, Code of 1942, makes it the duty of a District Attorney to institute and prosecute to effect, before the proper court, "all persons indebted to the state;" that Section 4369, Code of 1930, Section 3926, Code of 1942, makes it the duty of such officer to institute and prosecute suits "when . . . necessary and proper for the enforcement or collection of any judgment or debt in favor of the state;" and that Section 4370, Code of 1930, Section 3927, Code of 1942, authorizes him to institute and prosecute "any civil suit for a violation of the anti-trust statutes of this state" — all of which suits may be said to involve matters of state-wide interest. However, it should be noted that these are the only sections in the chapter on "District Attorneys" granting such authority and that the first two of these statutes condition his right to appear for the whole state upon the "approval of the attorney-general," while the latter statute prohibits the filing of an anti-trust suit by a district attorney "without the consent in writing of the attorney-general." Then, most assuredly, in view of this declared public policy of reserving unto the Attorney-General the final right to speak for the state in such matters of state-wide interest, it was never intended that a district attorney whose desire is primarily to serve a local constituency, however laudable it may be, should be permitted in the exercise of his own discretion to appear and bind the entire state in the matter of ousting corporations therefrom by quowarranto or in cancelling their rights and franchises to do business anywhere within its borders; and especially so where the trial court in which such a proceeding is instituted is left no discretion as to whether or not such penalty shall be enforced when the statutory ground of complaint is sustained by the proof, even though the trial judge may be of the opinion that the best interest of the state does not require such action.

Here the relief sought would preclude the appellant from operating picture shows at all on any day of the week, including Sunday, either in the Seventh Judicial District or at any other place in the state, while other like corporations are now permitted to operate in many cities and towns other than Jackson on Sundays and at all other times. Thus, when it is remembered that the state, and not the district attorney, is the real litigant, there would arise the constitutional question, about which we express no opinion one way or the other, as to whether or not such action by the state against one such corporation in particular would violate that provision of the Fourteenth Amendment to the Constitution of the United States which declares that no state shall "deny to any person within its jurisdiction the equal protection of the laws." We make this observation merely to further emphasize the importance of preserving the right of the Attorney-General alone to represent the state in such matters of state-wide interest in order that the state may deal fairly and impartially with those corporations, whether domestic or foreign, engaged in the same kind and character of business in determining whether or not the state shall waive or insist upon its authority to forfeit the right of either of them to do business here.

What we are saying in this opinion is not intended as a decision of any question that may arise involving a conflict of asserted authority between any other state officer and the Attorney-General to represent the state in litigation pertaining to the discharge of the functions of his state-wide office, since such a question is not here involved. We confine the decision here to the relative powers of the Attorney-General and a district officer in matters of state-wide public interest, based primarily upon the authority of what was said and held as a precedent in the Capitol Stages, Inc., case, heretofore cited and quoted from.

Since the state has not invoked the aid of the court through its duly authorized legal representative, we are without jurisdiction to pass upon the other questions involved on this appeal, and hence we express no opinion in regard thereto. The cause will be reversed and the suit dismissed, without prejudice to whatever rights the state may have in the premises. And it is so ordered.

Reversed, and suit dismissed.