State Ex Rel. Andrews v. Chateau X, Inc. , 296 N.C. 251 ( 1979 )

Justice EXUM

dissenting.

As the majority opinion notes at the outset, the present case “concerns the statutory construction and constitutionality of Chapter 19 of [the] North Carolina General Statutes.” I disagree in part with the majority’s handling of both aspects. As to the first, the majority upholds an injunction the breadth of which is not authorized by the statute. As to the second, the procedure upheld here is an unconstitutional prior restraint on the exercise of freedom of speech and the press.

I agree that the “core of the controversy in this case stems from that part of the trial court’s order that enjoins defendants from selling or showing obscene matter that is not listed on the inventory,” ie., matter described in the abstract by the statutory definition of obscenity that defendant might acquire in the future. The majority assumes, without stating its reasons therefor, that the trial court was authorized by the statute to enter an order this broad. As I read the statute, it authorizes only an injunction against future possession or sale of matter before the court and judicially declared to be obscene at the proceeding in which a defendant is adjudged to be maintaining a nuisance.

Chapter 19, which is entitled “Abatement of Nuisances,” is not an easy statute to comprehend. Besides obscenity, it deals with places used for purposes of “assignation, prostitution, gambling, illegal possession or sale of intoxicating liquors [and] illegal possession or sale of narcotic drugs . . . .” G.S. 19-Ka). It is, in other words, a general nuisance abatement statute. One of the key methods of abatement it seems to contemplate is the closing of the place where the nuisance is maintained. See G.S. 19-2.1, 19-5, 19-6, 19-7. Insofar as these closing provisions might be applied to a place that disseminates printed material or motion pictures, there are, it is conceded, serious constitutional questions. See State v. A Motion Picture Entitled “The Bet, ” 219 Kan. 64, 547 P. 2d 760 (1976); General Corporation v. Sweeton, 294 Ala. 657, 320 So. 2d 668 (1975).

There are, however, other remedies provided under the statute against one maintaining a nuisance. It is one of these other remedies that is involved here. In addition to the abatement of the nuisance by closing, G.S. 19-2.1 provides for a suit “perpetually to enjoin all persons from maintaining the same, and to enjoin the use of any structure or thing adjudged to be a nuisance under this Chapter . . . .” The statute’s primary remedial provisions are set out in G.S. 19-5, as follows:

“Content of final judgment and order. — If the existence of a nuisance is admitted or established in an action as provided for in this Chapter an order of abatement shall be entered as a part of the judgment in the case, which judgment and order shall perpetually enjoin the defendant and any other person from further maintaining the nuisance at the place complained of, and the defendant from maintaining such nuisance elsewhere within the jurisdiction of this State. Lewd matter, illegal intoxicating liquors, gambling paraphernalia, or substances proscribed under the North Carolina Controlled Substances Act shall be destroyed and not be sold.

“Such order may also require the effectual closing of the place against its use thereafter for the purpose of conducting any such nuisance.

“The provisions of this Article, relating to the closing of a place with respect to obscene or lewd matter, shall not apply in any order of the court to any theatre or motion picture establishment which does not, in the regular, predominant, and ordinary course of its business, show or demonstrate lewd films or motion pictures, as defined in this Article, but any such establishment may be permanently enjoined from showing such film judicially determined to be obscene hereunder and such film or motion picture shall be destroyed and all proceeds and moneys received therefrom, after the issuance of a preliminary injunction, forfeited.” (Emphasis supplied.)

Under this provision the question whether the injunction here is authorized boils down to what is meant by enjoining the defendant or any other person from “further maintaining the nuisance” and from “maintaining such nuisance elsewhere.” This language implies a limitation on the scope of injunctive relief to materials before the court at the time of the determination that a nuisance exists. The acts that can be enjoined are “further maintaining the nuisance” or “maintaining such nuisance elsewhere.” The General Assembly has chosen at those two points in this provision to use quite specific language. This language must refer to the particular materials found by the trial court to be “lewd matter” and on which it must have based its determination that a nuisance existed. Thus, a defendant can under the statute be enjoined from restocking the same materials that have once been judicially determined obscene. The statute does not, however, give the court the power to enjoin a defendant from selling or showing other materials that are not before it.

In addition to avoiding a serious constitutional question, see In re Arthur, 291 N.C. 640, 231 S.E. 2d 614 (1977); In re Dairy Farms, 289 N.C. 456, 223 S.E. 2d 323 (1976), interpreting the statute in this fashion would make it compatible with our criminal obscenity statutes. See G.S. 14-190.1 through 14-190.8. Under those statutes, there is provided “an adversary determination of the question of whether books, magazines, motion pictures or other materials are obscene prior to their seizure or prior to a criminal prosecution relating to such materials.” G.S. 14-190.2(a). Thus under our criminal statutes, no one can be prosecuted for selling, showing, distributing or disseminating any material until it has first been determined to be obscene. Where the General Assembly has not spoken more clearly, it is reasonable to assume that it intended this related nuisance statute, which carries with it a possibility of contempt punishment, see G.S. 19-4, to follow a similar procedure.

I think the injunction is broader than permitted by the statute and should Hot be upheld in its entirety. Furthermore the majority’s contrary interpretation renders the statute unconstitutional insofar as it permits an injunction against future expression.

The trial judge enjoined defendants from “possessing for exhibition to the public” and “possessing for sale and selling” various kinds of “lewd matter.” This “lewd matter” was described generically in the injunction itself in terms of the statutory prohibition. See G.S. 19-1.1(2). The injunction thus seeks to proscribe categories of expression rather than any particular film or publication which has been specifically and judicially declared violative of the statute. It prohibits the future possession of unnamed films, magazines, books and papers and subjects defendants to possible fines and imprisonment prescribed in G.S. 19-4 if they should violate it by possessing any of these generically described items which might later be judicially determined in a contempt proceeding to fit within its proscription.

Insofar as the statute authorizes this kind of injunction I believe it and, therefore, the injunction itself contravenes the freedom of speech and freedom of the press clauses of the First Amendment as applied to the states under the Fourteenth Amendment. To me this is the kind of prior restraint against future expression which the United States Supreme Court has consistently and rightly determined to be inconsistent with the guarantees of the First Amendment. The highest courts of at least three other states have found orders virtually identical to the one here to be unconstitutional prior restraints. Parish of Jefferson v. Bayou Landing Ltd., Inc., 350 So. 2d 158, 165-68 (La. 1977); Mitchem v. Schaub, 250 So. 2d 883 (Fla. 1971); New Rivieria Arts Theatre v. State, 219 Tenn. 652, 412 S.W. 2d 890 (1967). In addition, in a carefully considered opinion, Judge Franklin T. Dupree, Jr., an able jurist noted for his industry and scholarship, has held that insofar as G.S. 19-5 allows an injunction against distribution of materials not previously adjudged obscene, it is unconstitutional. Fehlhaber v. State, 445 F. Supp. 130 (E.D.N.C. 1978). Examination of the relevant constitutional doctrines as applied by the Supreme Court leaves no doubt that these results were correct.

In Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973), Georgia state prosecutors had filed civil complaints against an Atlanta theater alleging that it was exhibiting two obscene films contrary to a Georgia statute. The complaint prayed that the two films be declared obscene and that the theater be enjoined from exhibiting them. At a non-jury trial, the judge assumed that the films were obscene but ruled that inasmuch as the theater took reasonable precautions against permitting minors to enter and view the films it was constitutionally impermissible to enjoin their further showing. The Georgia Supreme Court reversed. It described the films as “hard core pornography” leaving “little to the imagination” and held that their further exhibition should have been enjoined. Slaton v. Paris Adult Theatre I, 228 Ga. 343, 347, 185 S.E. 2d 768, 770 (1971). The United States Supreme Court in a 5-4 decision essentially approved the Georgia civil injunction procedure. It remanded the case, however, for reconsideration by the Georgia Supreme Court in light of the new definitions of obscenity contained in Miller v. California, 413 U.S. 15 (1973), decided the same day. In approving the use of injunctive action, however, Chief Justice Burger, writing for the majority, was careful to note, 413 U.S. at 55:

“Here, Georgia imposed no restraint on the exhibition of the films involved in this case until after a full adversary proceeding and a final judicial determination by the Georgia Supreme Court that the materials were constitutionally unprotected. Thus the standards of Blount v Rizzi, 400 US 410, 417, 27 L Ed 2d 498, 91 S Ct 423 (1971); Teitel Film Corp. v Cusack, 390 US 139, 141-142, 19 L Ed 2d 966, 88 S Ct 754 (1968); Freedman v Maryland, 380 US 51, 58-59, 13 L Ed 2d 649, 85 S Ct 734 (1965); and Kingsley Books, Inc. v. Brown, supra, at 443-445, 1 L Ed 2d 1469, were met. Cf. United States v Thirty-seven Photographs, 402 US 363, 367-369, 28 L Ed 2d 822, 91 S Ct 1400 (1971) (opinion of White, J.).”

In Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957), the Court approved a New York procedure “authorizing the chief executive, or legal officer, of a municipality to invoke a ‘limited in-junctive remedy,’ under closely defined procedural safeguards, against the sale and distribution of written and printed matter found after due trial to be obscene, and to obtain an order for the seizure, in default of surrender, of the condemned publications.” Id. at 437. Justice Frankfurter, writing for the majority of five, again, was careful to point out that the procedure under consideration “studiously withholds restraint upon matters not already published and not yet found to be offensive.” Id. at 445. On this basis he distinguished the procedures then before the Court from those which had been earlier condemned in Near v. Minnesota, 283 U.S. 697 (1931).

In Near v. Minnesota, the leading case on the constitutionality of injunctions against future expression, the Court had before it a Minnesota statute which provided in pertinent part as follows:

“Section 1: Any person who . . . shall be engaged in the business of regularly . . . producing, publishing or circulating, having in possession, selling or giving away,

(a) an obscene, lewd and lascivious newspaper, magazine, or other periodical, or

(b) a malicious, scandalous and defamatory newspaper, magazine or other periodical,

is guilty of a nuisance, and all persons guilty of such nuisance may be enjoined, as hereinafter provided.” Id. at 702.

The statute further authorized the county attorney or any citizen to maintain an action for the injunction authorized by the statute. A proceeding for an injunction was brought in the Minnesota state courts against Near and other defendants. At trial it was found as a fact that the defendants had published various editions of a periodical known as “The Saturday Press” from 24 September 1927 to 19 November 1927 and that these editions were “ ‘chiefly devoted to malicious, scandalous and defamatory articles.’ ” It was further found that the defendants “ ‘did engage in the business of regularly and customarily producing, publishing and circulating a malicious, scandalous and defamatory newspaper’ ” and that such publications constituted a public nuisance. The trial court thereupon enjoined the publication of “The Saturday Press” and perpetually enjoined defendants from publishing “ ‘any publication whatsoever which is a malicious, scandalous or defamatory newspaper, as defined by law.’ ” Id. at 706. The Supreme Court, with Chief Justice Hughes writing for a majority of five, concluded that the injunction was “the essence of censorship” and constituted the kind of prior restraint on expression that was violative of the freedoms of press and speech guaranteed by the First Amendment and made applicable to the states through the Due Process Clause of the Fourteenth Amendment. The Court said in meeting the arguments of the State of Minnesota:

“Nor can it be said that the constitutional freedom from previous restraint is lost because charges are made of derelictions which constitute crimes.

“Equally unavailing is the insistence that the statute is designed to prevent the circulation of scandal which tends to disturb the public peace and to provoke assaults and the commission of crime. Charges of reprehensible conduct, and in particular of official malfeasance, unquestionably create a public scandal, but the theory of the constitutional guaranty is that even a more serious public evil would be caused by authority to prevent publication.” Id. at 720, 721-22.

Thus, the Court in Near made it clear that the truth or falsity of the charges contained in the particular periodicals under consideration was immaterial to the constitutional question of whether future publications could be enjoined.

Relying on Near, the Court in Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), struck down an Illinois state court injunction against “ ‘passing out pamphlets, leaflets or literature of any kind, and from picketing, anywhere in the city of Westchester, Illinois.’ ” The trial court found that the persons enjoined had, through the distributions of certain pamphlets, accused a real estate broker in Westchester, Illinois, of arousing fears of local white residents that Negroes were moving into the area and thereafter exploiting their reactions to bolster his real estate business. The trial court found that the pamphleteers’ activities in Westchester had invaded the real estate agent’s right of privacy and had caused irreparable harm and that he was without an adequate remedy at law. The Supreme Court in an opinion by Chief Justice Burger struck down the injunction saying:

“It is elementary, of course, that in a case of this kind the courts do not concern themselves with the truth or validity of the publication. Under Near v Minnesota, 283 US 697, 75 L Ed 1357, 51 S Ct 625 (1931), the injunction, so far as it imposes prior restraint on speech and publication, constitutes an impermissible restraint on First Amendment rights. Here, as in that case, the injunction operates, not to redress alleged private wrongs, but to suppress, on the basis of previous publications, distribution of literature ‘of any kind’ in a city of 18,000.” Id. at 418-19.

In New York Times Co. v. United States, 403 U.S. 713 (1971), the United States government sought to enjoin the New York Times and the Washington Post from publishing contents of a classified study entitled “History of U.S. Decision-Making Process on Viet Nam Policy” (the Pentagon papers). District courts for the Southern District of New York and the District of Columbia and the Court of Appeals for the District of Columbia Circuit had refused to issue an injunction against the newspapers. The Court of Appeals for the Second Circuit held, however, that the injunction should issue. The United States Supreme Court in a per curiam opinion concurred in by six justices concluded that the injunction should not issue notwithstanding that in the opinions of the various concurring justices the Pentagon papers, if published, would have “serious impact” on the national security, would “do substantial damage to public interest” and might even constitute a violation of federal criminal law. This case is significant in the area of the permissible limits of restraint on expression in that the very materials sought to be restrained were before the Supreme Court for review. Here, by contrast, the restraint is against materials yet to be seen or even published.

Any restraint against future expression, the Supreme Court has repeatedly said, comes “ ‘bearing a heavy presumption against its constitutional validity.’ ” Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975), and cases there cited. The reason is that there often is a finely drawn line between protected speech under the First Amendment and that which is not so protected. This is particularly true in the area of obscenity. There are, of course, many items which are clearly on one side or the other of that line. Defendants here concede that all items now before the courts are obscene. Under the statute they can be seized and destroyed. There is no contest in this case as to them. On the other hand there are many forms of expression upon which reasonable persons differ regarding whether they are obscene, or lewd, within the statutory definition of those terms. Examples abound in our literature, cinematic and otherwise.¹ One is found in Yeager v. Neal, 26 N.C. App. 741, 217 S.E. 2d 576 (1975). That case concerned the film, “Memories Within Miss Aggie” which the state sought to have declared obscene as that term was defined in a criminal statute, G.S. 14-190.1.² At the adversary hearing required by G.S. 14-190.2, over which I, as trial judge presided, the film was shown and various witnesses testified about it. All of the witnesses by reason of training and background possessed some expertise in the field of literary criticism. All felt that the film was clearly a serious literary and artistic work. There was no testimony to the contrary. Finding on the evidence presented including the film itself that the film did have serious literary and artistic value, I determined that it could not be declared obscene. The Court of Appeals affirmed on the basis of this finding which was not excepted to by the state although according to a vigorous dissent by Brock, C.J., a member of the panel who also viewed it, they all agreed that “the film depicts in a patently offensive way portrayals of actual sexual intercourse, normal and perverted, anal and oral, and a lewd exhibition of uncovered genitals in the context of masturbation.” Id. at 745.

The difficulty of defining obscenity in the abstract has long been anathema to legislatures and courts. Some judges have conceded that efforts to do so must ultimately fail.³ Other judges, however, assert that they know obscenity when they see it.⁴ If this is so, then a corollary must be that judges cannot know it until they see it. Even if obscenity can be defined in the abstract, it cannot be so enjoined in keeping with the First Amendment. To be dealt with judicially it must first be judicially seen.

Thus the Supreme Court has consistently insisted that states in their efforts to regulate prohibited forms of expression adopt procedures which are sensitive to the constitutional mandate that protected expression be in no wise threatened:

“ ‘[T]he line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn. . . . The separation of legitimate from illegitimate speech calls for . . . sensitive tools . . . Speiser v Randall, 357 US 513, 525, 2 L ed 2d 1460, 1472, 78 S Ct 1332. It follows that, under the Fourteenth Amendment, a State is not free to adopt whatever procedures it pleases for dealing with obscenity as here involved without regard to the possible consequences for constitutionally protected speech.” Marcus v. Property Search Warrant, 367 U.S. 717, 731 (1961); accord, Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S. 546.

The majority relies on the proposition that an injunction against future expression which, by definition, will be violative of the law is no greater threat to protected speech than a statute which imposes criminal sanctions against one who engages in such expression. Since the United States Supreme Court has approved such criminal sanctions against obscenity, the majority contends, it ought to approve these kinds of injunctions. This argument is all old one. It was made and had to be faced in Near v. Minnesota. There the Supreme Court, recognizing that libel could be punished criminally, nevertheless struck down a civil injunction against it. The Court there said, 283 U.S. at 713-14:

“The liberty deemed to be established was thus described by Blackstone: ‘The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity.’ 4 Bl. Com. 151, 152; see Storey on the Constitution, §§ 1884, 1889.”

The Supreme Court rejected the argument then and has consistently rejected it since. The Court said in Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S. 546, 558-59:

“The presumption against prior restraints is heavier —and the degree of protection broader — than that against limits on expression imposed by criminal penalties. Behind the distinction is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable.”

The reason for this distinction is thus that in a free society restraints on expression not yet uttered are totally antithetical to any notion of free speech largely because of the then uncertainty of what might be said. Once the expression is made it is an accomplished fact upon which it is permissible for courts to act as in other criminal cases. If the expression be illegal those responsible can be held accountable. This notion inheres elsewhere in the law in the familiar doctrine of admittedly uneven application that equity will not enjoin a proposed criminal act on the ground that there is a complete remedy at law if the act is committed. See Mills v. Cemetery Park Corp., 242 N.C. 20, 86 S.E. 2d 893 (1955); Dare County v. Mater, 235 N.C. 179, 69 S.E. 2d 244 (1952).

Another distinction is that in a criminal action various procedural safeguards are present, for example, entitlement to a jury trial. Alleged violations of the kind of injunction issued in this case may be tried and punished by the presiding judge.⁵

Furthermore it is well to note again that in North Carolina one may not be criminally prosecuted for dealing in obscene materials unless he deals in material which has first been judicially declared to be obscene in an adversary hearing conducted prior to the criminal prosecution. G.S. 14-190.2. There seems to be no constitutional requirement for such an adversary proceeding prior to criminal prosecution, Miller v. California, supra, 413 U.S. 15, but our General Assembly has deemed it appropriate to provide such protection.

The construction which I feel should be given this legislation does not render the state powerless to deal with the problem of obscenity. The legislature could, if it thinks such action necessary, amend its criminal statutes, G.S. 14-190.1, et seq., so as to eliminate the requirement of an adversary hearing prior to criminal prosecution or provide penalties for the violation thereof which would serve to deter violators. Even under the civil nuisance proceeding as I would interpret it, the remedies against dissemination of obscene material are formidable. Once such materials are located an ex parte judicial order may issue forthwith placing substantial limitations on trafficking in the material. G.S. 19-2.3. If, thereafter, the material is judicially determined or admitted to be obscene it can be confiscated and destroyed. G.S. 19-5. All monies paid in consideration for the sale of obscene material after the ex parte order has issued must be accounted for, and if these monies are thereafter determined to have been paid in consideration of obscene material they may be forfeited to the local government. G.S. 19-6. Even if a defendant, determined to violate these statutes, replenishes his stock with items different from those previously confiscated under prior orders, it would seem that only a few successive confiscations of his stock in a campaign of zealous law enforcement would render his unsavory business so unprofitable that he would have to quit.

For the reasons stated I vote to vacate so much of the trial court’s order as seeks to enjoin defendants from dealing in items not yet published or possessed by them.

1 . Masturbation, homosexuality and sadism are depicted in a recently released film, “Midnight Express," which has nevertheless been critically acclaimed and could hardly be said to lack serious literary, artistic and educational value. See Newsweek, 16 October 1978, at 76, 81; Time, 16 October 1978, at 111-12; Vogue, September 1978, at 62.

Sodomy per anum was graphically depicted in the critically acclaimed film, “Last Tango in Paris." See Newsweek, 12 February 1973, at 54-58.

The works of Henry Miller, Tropic of Capricorn and Tropic of Cancer, were once widely considered obscene, but are now highly regarded as literary pieces. See Gordon, The Mind and Art of Henry Miller (1967). The same can be said of D. H. Lawrence’s Lady Chatterly’s Lover. See Sanders, D. H. Lawrence', The World of the Five Major Novels, at 172-205 (1973). See generally Rembar, The End of Obscenity (1968).

2 . The applicable parts of the statute are as follows:

“(b) For purposes of this Article any material is obscene if:

(1) The material depicts or describes in a patently offensive way sexual conduct specifically defined by subsection (c) of this section; and

(2) The average person applying contemporary statewide community standards relating to the depiction or representation of sexual matters would find that the material taken as a whole appeals to the prurient interest in sex; and

(3) The material lacks serious literary, artistic, political, educational or scientific value; and

(4) The material as used is not protected or privileged under the Constitution of the United States or the Constitution of North Carolina.

(c) Sexual conduct shall be defined as:

(1) Patently offensive representations or descriptions of actual sexual intercourse, normal or perverted, anal or oral;

(2) Patently offensive representations or descriptions of excretion in the context of sexual activity or a lewd exhibition of uncovered genitals, in the context of masturbation or other sexual activity.”

3 . Miller v. California, supra, 413 U.S. 15, 37 (Douglas, J., dissenting); Paris Adult Theatre I v. Slaton, supra, 413 U.S. 49, 73 (Brennan, J., dissenting); see also Smith v. United States, 431 U.S. 291, 311 (1977) (Stevens, J., dissenting in a federal criminal obscenity prosecution, sustained by the majority, on the ground that “the line between communications which ‘offend1 and those which do not is too blurred to identify criminal conduct.” Id. at 316.) The majority opinion, I fear, does not fully represent Justice Stevens’ position in this area. He said, id. at 318-21:

“It seems to me ridiculous to assume that no regulation of the display of sexually oriented material is permissible unless the same regulation could be applied to political comment. On the other hand, I am not prepared to rely on either the average citizen’s understanding of an amorphous community standard or on my fellow judges’ appraisal of what has serious artistic merit as a basis for deciding what one citizen may communicate to another by appropriate means.

“I do not know whether the ugly pictures in this record have any beneficial value. The fact that there is a large demand for comparable materials indicates that they do provide amusement or information, or at least satisfy the curiosity of interested persons. Moreover, there are serious well-intentioned people who are persuaded that they serve a worthwhile purpose. Others believe they arouse passions that lead to the commission of crimes; if that be true, surely there is a mountain of material just within the protected zone that is equally capable of motivating comparable conduct. Moreover, the dire predictions about the baneful effects of these materials are disturbingly reminiscent of arguments formerly made about the availability of what are now valued as works of art. In the end, I believe we must rely on the capacity of the free marketplace of ideas to distinguish that which is useful or beautiful from that which is ugly or worthless.” (Emphases supplied.)

4 . “I have reached the conclusion, which I think is confirmed at least by negative implication in the Court’s decisions since Roth and Alberts, that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring.)

5 . G.S. 19*4 provides:

"Violation of injunction; punishment. — In case of the violation of any injunction granted under the provisions of this Chapter, the court, or, in vacation, a judge thereof, may summarily try and punish the offender. A party found guilty of contempt under the provisions of this section shall be punished by a fine of not less than two hundred ($200.00) or more than one thousand dollars ($1,000), or by imprisonment in the county jail not less than three or more than six months, or by both fine and imprisonment.”