State ex rel. Powers v. Shelton
State ex rel. Powers v. Shelton
Opinion of the Court
delivered the opinion of the Court.
In this case the State filed its hill in the circuit court of Knox county against the defendant, under what is known as the Nuisance Law, chapter 2 of the Acts passed by the fifty-eighth General Assembly, at its second extra session. It charged him with maintaining a place or house for the sale of intoxicating liquors at No. 2351 Magnolia street, in Park City, which adjoins the city of Knoxville, but is a distinct municipal corporation. This bill was filed on relation of Hon. J. Pike Powers, Jr., city attorney of Knoxville, and not by the city attorney of Park City, nor was it filed by the district attorney of the district • in which Knox county is situated, nor by the Attorney-General of the State. These facts were pleaded in abatement of the action, but this plea in abatement, on the hearing, was disallowed. The case was then proceeded with, and a decree entered, finding the defendant guilty and enjoining him from all acts charged against him in the bill, and ordering a sale of property which had been seized, consisting of an automobile and certain other property. On appeal to the court of civil appeals this judgment was affirmed, and the case was then brought to this court by the writ of certiorari.
The only question we shall consider is whether the plea in abatement should have been sustained. We are clearly of the opinion that it should have been upheld and the suit dismissed.
As to the first defense: This is based on section 2 of the act, which reads as follows: -
“Jurisdiction is hereby conferred upon the chancery, circuit, and criminal courts of this State to abate the public nuisances defined in the first section of this act upon petition in the name of the State, upon relation of the attorney-general, or any district attorney of the State, or any city or county attorney, or without the concurrence of any such officers, upon the relation of ten or more citizens and freeholders of the county wherein such nuisances may exist, in the manner herein provided.”
The contention is that the language, “any city or county attorney” is broad enough to include every city or county in the State; that therefore any city or county attorney may go out of his local jurisdiction and institute such an action in any other city or coun-. ty in the State. This could not have been intended by the legislature. The course of action that would result from such construction would produce unseemly conflict all over the State, and'would be so out of harmony with the general course- of the administration of judicial affairs as that it could not be enter
As to the second defense : This could not be entertained. The defendant’s right to an abatement of the action was complete before the assembling of the legislature of 1917, to say nothing of the date on which the Act of 1917 was passed.
It results that the judgment of the court of civil appeals, and of the trial court, must be reversed, and the suit dismissed with costs.
Reference
- Full Case Name
- State ex rel. Powers, City Attorney v. Horace Shelton
- Cited By
- 1 case
- Status
- Published