M. Schandler Bottling Co. v. Welch

• Decision Date: 18 July 1890
• Citation: 42 F. 561
• Court: U.S. District Court — District of Kansas
• Parties: M. SCHANDLER BOTTLING CO. v. WELCH et al.

42 F. 561

M. SCHANDLER BOTTLING CO. v. WELCH et al.

United States Circuit Court, D. Kansas.

July 18, 1890

The complainant is a corporation of the state of Missouri. The respondents are residents of the state of Kansas. The respondent Welch is the acting county attorney of Shawnee county, in Kansas, and the respondent Wilkerson is the acting sheriff of said county.

The bill alleges that complainant is engaged in the business of a wholesale and retail liquor dealer at the City of Kansas, in Missouri; that it owns and has in possession a large amount of whiskies, wines, and beer, and other articles of merchandise, in said last-named city, and sells the same to various customers in other states as merchantable commodities; that on or about the month of May, 1890, it established an agency at the city of Topeka, in Kansas, for the sale of such articles, and engaged and employed as agents, at said place, Carl Jockneck and J. R. Deisher, to receive and sell for it at said point such merchandise as it might ship to them for said purpose; that said agents were and are also citizens resident of the state of Missouri; that in establishing such agency the complainant invested a large sum of money at said city of Topeka, and shipped to said agents large quantities of such liquors, wines, beer, etc amounting to several thousand dollars; that said articles were shipped by express and otherwise, at great expense securely packed and sealed, in packages consisting of several hundred in number, each of which packages was securely boxed up, sealed, and numbered, in distinct, separate packages, and shipped from Kansas City, Mo., the business point and house of complainant, consigned to said agents, to be received by them, and sold for and on behalf of complainant, in the original packages in which they were so shipped, and not otherwise; and that said goods were being so sold by said agents in the original packages, and not otherwise, as they had a right to do under the constitution of the United States.

The bill then charges that said respondents, after the said shipment of said goods, and the beginning of said agents to so make sales of the same, conspired and confederated together to unlawfully oppress, impede, and obstruct the complainant and said agents in conducting said business, and to drive them out of the county and state aforesaid, and prevent them from conducting said business therein; and, in pursuance of said conspiracy, the respondents, under the garb and color of their said offices, were to cause the arrest imprisonment, and prosecution of said agents, and, as often as they might be released from such arrests, they would cause their rearrest and imprisonment, and by exacting, or causing to be exacted, exorbitant and unreasonable bail, compel their confinement in jail, and, as often as discharged therefrom by the writ of habeas corpus, to prefer in different form apparently new, but, in effect, the same, charges against them, for so conducting said business seemingly in violation of the state law, although said respondents well knew their said business was lawful under the laws and constitution of the United States. That accordingly said Welch caused certain criminal proceedings to be instituted against them in the district court of said Shawnee county, under which they were arrested by said Wilkerson, and a bail-bond of $3,000 demanded and required of them, which bond was wholly unwarranted by the character of the alleged offense, oppressive, and unconstitutional. That at the same time, and as a part of said conspiracy and criminal proceeding, they caused to be filed and instituted against said agents an injunction suit to prevent them from selling said articles as they had a right to do under the constitution of the United States. That said order of injunction was served on said agents at the same time they were so placed under arrest in said criminal proceedings, which said order was issued without any previous notice to said agents, or opportunity to be heard thereon. Thereupon, said agents applied to the United States circuit court for their discharge from said arrest under the writ of habeas corpus; and, after full hearing and investigation of the law and facts, said United States court did discharge them under such writs. Ante, 545. That said officers, under the garb and color of their said offices, propose and threaten to continue to so harass and vex said agents with like trumped-up charges and prosecutions for continuing to so sell such goods in the original packages in which they were imported as aforesaid. The object of said prosecutions and persecutions is to prevent said agents and complainant from pursuing said lawful business in said county, and to break up its trade, and destroy its property. That said charges and prosecutions are to be made before the said district court of Shawnee county, on the ground and under the pretext that said acts of said agents are in violation of what is known as the 'Prohibitory

Liquor Law of the State of Kansas,' and is in fact designed to prevent the importation of such goods into the state from other states, and their sale in the original packages in which they are shipped.

The prayer of the bill is for a provisional injunction temporarily restraining and prohibiting respondents, their deputies, assistants, etc., from instituting or prosecuting civil or criminal actions against said agents, and preventing them from receiving and selling such goods so shipped to them in the original packages to such persons as may apply for the same, and from molesting them in their said business so conducted, and for a perpetual injunction, if, upon a full hearing, the facts shall so appear as alleged, and for all proper relief.

At the preliminary hearing of this application the respondents appeared, and demurred generally to the bill. The cause was heard by Judge PHILIPS, of the western district of Missouri, under order of the circuit judge, in conjunction with Judge FOSTER.

E. Hagan, for complainant.

L. B. kellogg, Atty. Gen., for defendants.

PHILIPS J.,

(after stating the facts as above.) The objection made to this proceeding, that it is practically a suit against the state, has been considered by us in the case of Tuchman v. Welch, ante, 548, in the opinion just filed. See, also, Hagood v. Southern, 117 U.S. 70, 6 S.Ct. 608. The remaining question, not disposed of in that discussion, is whether or not this suit is obnoxious to the objection that a court of equity never extends its jurisdiction to the enjoining of criminal proceedings. This is, unquestionably, a well-settled general rule of equity jurisprudence. Railway Co. v. Kansas City, 29 Mo.App. 89, and loc. cit. This question underwent extended discussion in Re Sawyer, 124 U.S. 200, 8 S.Ct. 482. Mr. Justice GRAY, who delivered the majority opinion, said, inter alia:

'The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of rights of property. It has no jurisdiction over the prosecution, the punishment, or the pardon of crimes or misdemeanors. * * * To assume such a jurisdiction, or to sustain a bill in

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