We granted certiorari to review the action taken by the circuit court of Jefferson County, Bessemer Division, in Equity, in a contempt proceeding against petitioner. The question presented is whether the punishment imposed exceeds that authorized by law.
On June 30, 1955, the County Commissioners of Jefferson County filed in said court a bill of complaint to enjoin petitioner "from selling or offering for sale beer or other alcoholic beverages" at his place of business known as "King's Place" situated near Genery's Gap in said county. The relief prayed for is grounded on the following allegations: (1) That "the location of said business * * * is not zoned for the sale of beer under the zoning regulations and restrictions adopted and promulgated by the governing body of said County, and is in direct violation thereof"; (2) that respondent (petitioner here) "is selling or offering for sale beer at said place of business without first having procured a Use Permit from the Building Commissioner of Jefferson County as required by law"; and (3), that respondent has had "due notice that he is violating the law", but that "notwithstanding such notice he is now and has been in the past openly and wilfully and knowingly operating said business in violation of the law", and that "the peace and welfare of the citizens of said community require that appropriate action be taken by this court to enjoin and abate said illegal operation carried on by the respondent at said place of business." Pursuant to a prayer to that end, a temporary injunction against petitioner was granted at the time the bill was filed.
On July 11, 1955, complainants filed a petition with the trial court alleging that respondent "has openly and wilfully violated the terms and provisions" of the temporary injunction and praying for issuance of a rule nisi to the respondent requiring him to appear and show cause why he should not be held in contempt of court because of "his wilful violations" of said injunction. On the same day a rule nisi was issued and served on the respondent requiring him to appear on July 12, 1955, and show cause why he should not be held in contempt. A hearing was had on the appointed day, whereupon the court rendered the following decree:
"Ordered and done this 12th day of July, 1955.
Indorsed on the decree is the following:
"Committed to Jail: Date, July 12, 1955
"Holt A. McDowell, Sheriff __________________
"Filed in Office: July 12, 1955"
On July 22, 1955, respondent petitioned the court to set aside the contempt decree and to have the fine paid by him remitted. This petition was denied on August 3, 1955.
On July 28, 1955, respondent filed two separate motions for dissolution of the injunction, and on the same day filed his answer to the bill. The record does not disclose whether action has been taken on said motions; nor whether a final decree on the merits has been rendered.
The insistence of petitioner here is that the punishment imposed is in excess of that authorized by Code 1940, Tit. 13, §§ 9 and 143, while respondent here maintains that the punishment is within the limits prescribed by Code 1940, Tit. 7, § 1108.
Sections 9 and 143, Title 13, supra, are as follows:
Section 1108, Title 7, supra, is as follows:
It seems clear that § 1108, Tit. 7, has no application to this proceeding. That section is a part of Art. 2, Chap. 31, Tit. 7, dealing with "Nuisances", and, by its very terms, applies only when a party is found guilty of contempt under the provisions of said Art. 2. By referring back to § 1091 of Tit. 7, which is the first section in Art. 2, it is clear that the nuisance being dealt with in Art. 2 is the maintenance of a place "in or upon which lewdness, assignation, or prostitution is conducted, permitted, continued, or exists". In the instant case we do not have that situation but instead are dealing with an alleged violation of a zoning regulation. And we here note, aside from any other consideration as to the right of complainants to institute the injunction proceeding, such right is expressly given by Act No. 634, appvd. Sept. 4, 1951, Gen.Acts 1951, Vol. II, pp. 1089-1090, Code 1940, Tit. 62, § 330 (240a), 1953 Cum. Pocket Part, which is applicable to Jefferson County.
Although reference is made in petitioner's brief to the bill's want of equity, we do not understand him to question the jurisdiction of the trial court to entertain the suit. It seems clear that the trial court had jurisdiction of both the parties and the subject matter.
That brings us to a consideration of the applicability of §§ 9 and 143, Tit. 13, supra. Section 143, rather than Section 9, is made expressly applicable whem the circuit court or a judge thereof is "exercising equity jurisdiction". Whether Section 9 is or is not also applicable is of no moment.
It seems to us that what was said in Ex parte Hill, 229 Ala. 501, 503-504, 158 So. 531, is of controlling influence here. In that case the petitioner was adjudged in contempt of the equity court for violating a writ enjoining him from maintaining a liquor nuisance. It was ordered that petitioner "`be imprisoned in the county jail for ninety days'" from the date of the order "`as a punishment for such contempt'". In the opinion a distinction was drawn between a "civil contempt" and a "criminal contempt", and it was held that, while the statutory limitations on punishment, § 3798, Code 1923, § 9, Tit. 13, Code 1940; § 6481, Code 1923, § 143, Tit. 13, Code 1940, do not apply to civil contempts as there defined, such limitations do apply to criminal contempts. In holding that a criminal contempt was there involved and, therefore, subject to the statutory limitations as to punishment, this court said:
The question, then, to be decided is whether the contempt in the instant case is in its nature "civil" or "criminal". If "criminal" the punishment imposed exceeds the statutory limitations.
It seems to us, as said in Ex parte Hill, supra, that "the decree of the court settles that question. It is declared to be a punishment for what has been done, and it committed petitioner to jail for a definite period of time."
The distinction between civil and criminal contempts is thus stated in 12 Am.Jur., Contempt, § 6, p. 392:
Criminal and civil contempts are defined in 17 C.J.S., Contempt, §§ 5 and 6, pp. 7-8, to be as follows:
* * * * * *
We conclude that the contempt under review is a "criminal contempt" and that the statutory limitations, §143, Tit. 13, supra, are applicable. It seems to us that the penalty is for past disobedience rather than to compel obedience.
To the extent that the decree exceeds the statutory limitations, it is modified, and as modified, it is affirmed.
Modified and, as modified, affirmed.
LIVINGSTON, C. J., and SIMPSON and MAYFIELD, JJ., concur.