People Ex Rel. Attorney General v. Donovan

I cannot agree with Mr. Justice FELLOWS in the construction he places on the language of section 2 of the act. The entire section reads: "Whenever a nuisance is kept, maintained or exists, as defined in this act, the attorney general of the State of Michigan, the prosecuting attorney or any citizen of the county may maintain an action in chancery in the name of the State of Michigan, upon the relation of such attorney general, prosecuting attorney or citizen to perpetually enjoin said nuisance, the person or persons conducting or maintaining same, and the owner or agents of the building or place where said nuisance exists, or the vehicles by which any of the liquors mentioned in section one of this act are transported into or about the State. Four days' notice in writing shall be given the defendant of the hearing of the application, and if then continued at his instance, the writ as prayed shall be granted as a matter of course. When an injunction has been granted, it shall be binding on the defendant throughout the judicial circuit in which it was issued." The first sentence is perfectly plain and easily understood. The action is to be brought by the filing of a bill of complaint in chancery. There is no provision for shortening the time for pleading. Unless otherwise *Page 529 provided, the suit will proceed to final hearing in the manner provided by the statute and rules of court. The second sentence provides for "Four days' notice in writing" to the defendant "of the hearing of the application." Application for what? That the meaning of this word, in the sense in which it is used, is not clear, is apparent. To construe it as applying to the relief to be granted on a final hearing would lead to an absurdity and result in such hardship and injustice to a defendant as cannot be presumed to have been intended. Under such a construction, a defendant must prepare himself to meet a charge of law violation which, if established, may result in the closing of his building and the sale of the property contained therein, in the four days of which notice has been given him. A careful reading of the second sentence of this section confirms this conclusion. It provides that after the four days' notice has been given, if the hearing be continued at the instance of the defendant, "the writ as prayed shall be granted as a matter of course." If the order or decree to be then made be a final one, there is nothing to continue, the hearing is at an end. In all such cases a temporary injunction may be asked for when the bill is filed without special provision being made therefor. In my opinion, the only reasonable construction which can be placed upon the language used is to say that the "application" refers to one for a temporary injunction, and the writ to be issued, in the event of a continuance being asked for by defendant, is pursuant to an order providing therefor. I think this construction justified in view of the liberal rule which is followed by courts when construing such statutes. This rule was considered by Mr. Justice BROOKE in Attorney General v. Railway, 210 Mich. 227, wherein the authorities are reviewed at length. I quote therefrom (page 257): *Page 530 "As was said by Chief Justice Shaw in Commonwealth v.Kimball, 24 Pick. (Mass.) 366, 370: " 'When the worde are not precise and clear, such construction will be adopted as shall appear most reasonable and best suited to accomplish the objects of the statute; and where any particular construction would lead to an absurd consequence, it will be presumed that some exception or qualification was intended by the legislature to avoid such conclusion.' — and rather than pronounce a statute unconstitutional and void it is the duty of the court to — 'draw inferences from the evident intent of the legislature, as gathered from the law taken as a whole, supplying technical inaccuracies in expression and obviously unintentional mistakes and omissions by implication, from the necessity of making them operative and effectual as to specific things which are included in the broad and comprehensive terms and purposes of the law; and these inferences and implications are as much a part of the law as what is distinctly expressed therein.'State v. Polk County Com'rs, 87 Minn. 325, 337 (92 N.W. 216)." As thus construed, the law is workable, and no apparent injustice will be done. The legislature may, if it so wishes, provide for a more speedy hearing on the merits or give precedence to such cases, as is done in tax matters. No question of the exercise by the legislature of judicial power can then be presented. On the application for a temporary injunction, it must be made to appear that the violation complained of constitutes a nuisance. Of this fact the trial court must be satisfied by the sworn allegations in the bill and the affidavits attached thereto. The mere fact that the defendant asks for a continuance does not in itself entitle the plaintiff to the order for a temporary injunction. He must satisfy the court of the truth of the matters set up in the bill, and these must be such as, if proven, will justify a decree. The use of the word "shall" is not unusual in such statutes. The Kansas act, under consideration inMugler v. Kansas, 123 U.S. 623 (8 Sup. Ct. 273), contained *Page 531 a provision that "The injunction shall be granted at the commencement of the action, and no bond shall be required." In discussing this provision, Mr. Justice Harlan said: "The statutory direction that an injunction issue at the commencement of the action is not to be construed as dispensing with such preliminary proof as is necessary to authorize an injunction pending the suit. The court is not to issue an injunction simply because one is asked, or because the charge is made that a common nuisance is maintained in violation of law. The statute leaves the court at liberty to give effect to the principle that an injunction will not be granted to restrain a nuisance, except upon clear and satisfactory evidence that one exists. Here the fact to be ascertained was, not whether a place, kept and maintained for purposes forbidden by the statute, was, per se, a nuisance — that fact being conclusively determined by the statute itself — but whether the place in question was so kept and maintained. "If the proof upon that point is not full or sufficient, the court can refuse an injunction, or postpone action until the State first obtains the verdict of a jury in her favor." In view of the fact that the defendant was forced to a trial at the time fixed in the notice, I am persuaded that the decree should be set aside and the cause remanded for a hearing upon the merits, which shall follow the practice provided therefor in suits in chancery in this State. The plaintiff may renew his application for a temporary injunction, pending such hearing, if he deem it necessary to do so. No costs of this court will be allowed. CLARK, C.J., and McDONALD, MOORE, and STEERE, JJ., concurred with SHARPE, J. *Page 532