Bartles Northern Oil Co. v. Jackman
| Decision Date | 07 January 1915 |
| Docket Number | 1905 |
| Citation | 150 N.W. 576,29 N.D. 236 |
| Court | North Dakota Supreme Court |
Appeal from orders of the District Court of Grand Forks County Honorable Chas. M. Cooley, J.
Affirmed.
Hon Andrew Miller, Attorney General, Alfred Zuger and John Carmody, Assistant Attorneys General, for appellant.
An attempt to enjoin the execution of a public statute for a public benefit by officers of the law will not be allowed, or where the party has an adequate remedy at law. Franklin v. Appel, 10 S.D. 391, 73 N.W. 259; State ex rel Kenamore v. Wood, 155 Mo. 425, 48 L.R.A. 596, 56 S.W. 474; 22 Cyc. 769; 16 Am. & Eng. Enc. Law, 2d ed. 352; De Witt v. Hays, 2 Cal. 463, 56 Am. Dec. 352; Robinson v. Gaar, 6 Cal. 274; Trinity County v. McCammon, 25 Cal. 117; Hager v. Shindler, 29 Cal. 48; Bucknall v. Story, 36 Cal. 67; United Lines Teleg. Co. v. Grant, 137 N.Y. 7, 32 N.E. 1005; Richards v. Kirkpatrick, 53 Cal. 433; Birmingham v. Cheetham, 19 Wash. 657, 54 P. 37; Gibbs v. Green, 54 Miss. 592; High, Inj. 4th ed. § 1326; Youngblood v. Sexton, 32 Mich. 406, 20 Am. Rep. 654; Kellett v. Ida Clayton & G. W. Wagon Road Co. 90 Cal. 210, 33 P. 885.
Where there exists an adequate and speedy remedy at law, injunction will not lie. 22 Cyc. 769; 16 Am. & Eng. Enc. Law, 352.
This is a personal tax purely. Equity has no jurisdiction to restrain the collection of a personal tax, even though the tax be illegal. Williams v. Detroit, 2 Mich. 560; Henry v. Gregory, 29 Mich. 68; Heywood v. Buffalo, 14 N.Y. 534; Kellett v. Ida Clayton & G. W. Wagon Road Co. 90 Cal. 210, 33 P. 885; State ex rel. Kenamore v. Wood, 155 Mo. 425, 48 L.R.A. 596, 56 S.W. 474; People ex rel. Atty. Gen. v. Shasta County, 75 Cal. 181, 16 P. 776; Merriam v. Yuba County Supers. 72 Cal. 517, 14 P. 137; Wynn v. Shaw, Cal. , 25 P. 244; 27 Century Dig. 1778-1783.
The complaint contains no averments which would authorize equitable relief. Burton v. Walker, 13 N.D. 149, 100 N.W. 257; General Oil Co. v. Crain, 209 U.S. 211, 229-231, 52 L.Ed. 754-766, 28 S.Ct. 475.
Frank B. Feetham, for respondent.
The constitutionality of the law in question is clearly raised by the defendant's motion to vacate the injunction. If the oil inspection law is constitutional, the order was improvidently issued; if not, the order should be upheld and the injunction continued. Turner v. Maryland, 107 U.S. 38, 27 L.Ed. 370, 2 S.Ct. 44; D. E. Foote & Co. v. Stanley, 232 U.S. 494, 58 L.Ed. 698, 34 S.Ct. 377.
The fees provided for and charged under the oil inspection law are excessive, and in reality amount to a tax. As a tax, they are void because not imposed by uniform rule according to true value in money. Malin v. Lamoure County, 27 N.D. 140, 50 L.R.A. (N.S.) 997, 145 N.W. 582.
Injunction is the only effective remedy by which a "public officer" may be prevented from the performance of an act essentially wrong, and by which the law governing such act may be tested. There is no other plain, speedy, or adequate remedy. State v. Collins, 12 R. I. 478; Gordon v. State, 2 Tex.App. 158; 6 Words & Phrases, p. 4951; State ex rel. Ladd v. District Ct. 17 N.D. 285, 15 L.R.A. (N.S.) 331, 115 N.W. 675.
An unconstitutional legislative act is no law. It is void from the beginning, and a "public officer" who undertakes to carry out and enforce its provisions may be stopped by injunction. State ex rel. Atty. Gen. v. Cunningham, 81 Wis. 440, 15 L.R.A. 561, 51 N.W. 724.
Such a public official as an oil inspector is not in that class of "officers of the law" who may not be enjoined. Osborn v. Bank of United States, 9 Wheat. 738, 6 L.Ed. 204.
An officer of the state may be enjoined from executing a statute of the state which is in conflict with the Constitution of the United States, when such execution would violate rights and privileges of the complainant, guaranteed to him by the Constitution. Osborn v. Bank of United States, 9 Wheat. 859, 6 L.Ed. 233; Pennoyer v. McConnaughy, 140 U.S. 363, 35 L.Ed. 363, 11 S.Ct. 701; Board of Liquidation v. McComb, 92 U.S. 531, 23 L.Ed. 623; Davis v. Gray, 16 Wall. 220, 21 L.Ed. 453; Ex parte Young, 209 U.S. 123, 52 L.Ed. 714, 13 L.R.A. (N.S.) 932, 28 S.Ct. 441, 14 Ann. Cas. 764; Minneapolis Brewing Co. v. McGillivray, 104 F. 258; McConnell v. Arkansas Brick & Mfg. Co. 70 Ark. 568, 69 S.W. 559; Chesapeake & O. R. Co. v. Miller, 19 W.Va. 408; Starr v. Chicago, R. I. & P. R. Co. 110 F. 3.
A remedy at law is not, of itself, a bar to an action for injunction. The remedy must be speedy, plain, and adequate, to furnish proper relief for the complainant. The test is, What remedy will prevent and preclude the commission of a wrong, will cause correct, legal, and proper action in the quickest and easiest manner? Pom. Eq. Jur. 3d ed. §§ 1356, 1357.
In many cases--in fact in the case at bar--the fact that a legal remedy will give damages for a wrong act affords no reason for denying the right to injunction, especially where the act or acts of which complaint is made are of a continuing nature. Note to § 1357, Pom. Eq. Jur. 3d ed. and cases cited; 22 Cyc. 771; Watson v. Sutherland, 5 Wall. 74, 18 L.Ed. 581; Boyce v. Grundy, 3 Pet. 210, 7 L.Ed. 655; Corning v. Troy Iron & Nail Factory, 39 Barb. 311, 40 N.Y. 206; Sumner v. Crawford, 91 Tex. 129, 41 S.W. 994; Denny v. Denny, 113 Ind. 22, 14 N.E. 593; Bishop v. Moorman, 98 Ind. 1, 49 Am. Rep. 731.
That remedy which prevents a threatened wrong is far greater and more efficient than a remedy which permits the wrong to be done, and then directs the injured party to seek his redress in a court of law in the form of damages. There are wrongs for which pecuniary damages afford no adequate relief. 3 Pom. Eq. Jur. § 1357; Champ v. Kendrick, 130 Ind. 549, 30 N.E. 788; Xenia Real Estate Co. v. Macy, 147 Ind. 568, 47 N.E. 148; Wilcox v. Wheeler, 47 N.H. 493; Niagara Falls International Bridge Co. v. Great Western R. Co. 39 Barb. 224; Clark v. Jeffersonville, M. & I. R. Co. 44 Ind. 261.
Statement by
A synopsis of the allegations of the complaint of the respondents in this case shows them to be to the effect that the plaintiff is a domestic corporation doing business in this state in the sale of oils from six different plants located in different counties, with its principal place of business at Grand Forks; that by chap. 214 of the Laws of 1913, a process and proceedings for the inspection of refined petroleum oils and gasolenes were provided, and a state inspector of oils created to make inspection of all oils and gasolene coming within the state, and requiring him to collect fees aggregating 1/2 cent per gallon, and making such fees a charge against the person, firm, or corporation shipping such oils into the state. It is alleged that the plaintiff handles large quantities of such oils; that the inspection fees for which it is responsible to the inspector or state under said law, if legal, aggregate from $ 100 to $ 500 per month; that such fee is largely in excess of the amount reasonably necessary for the payment of the expenses of the enforcement of the inspection law referred to; that the cost of inspection of such oils under said law runs from $ 10,000 to $ 12,000 per year, while the receipts from such inspection fees aggregate from $ 80,000 to $ 100,000 per annum; that all oils which are or have been inspected by said inspector are interstate shipments of oils; that no oils are produced in the state for such inspection; that the exorbitant charge is a direct attempt on the part of the state to levy and impose a tax upon property which is the subject of interstate commerce, and is an interference with interstate commerce, and an unlawfully imposed duty upon goods shipped into the state from other states. It is further alleged that said chapter 214 is to a greater or less extent a re-enactment of chapter 171 of the Laws of 1909, and that the fee charged is identical; that under the provisions of said chapter 171, which had been in effect about four years at the time of the enactment of said chapter 214, from $ 60,000 to $ 100,000 per year had been received by the oil inspection department for such inspections over and above the amount expended in the enforcement of such law that the legislature had, at the time that said chapter 214 was passed, full knowledge of the fact that said inspection fee was greatly in excess of the amount necessary for the carrying into effect of the law, and had notice and knowledge that the law, which had been in effect nearly four years theretofore, had produced revenues far in excess of the amount necessary for use in the inspection of oils and the enforcement of said law; that the same was fully explained to the committee of the legislature having the measure in charge, and was well known to the whole legislature, but that the legislature for the year 1911, by chapter 198, made provision for transferring such excess to the general fund of the state. It is then alleged that such charge is in conflict with the Constitution of the state and the Constitution of the United States, and that it is not a bona fide inspection law; that the excess which is transferred to the general fund of the state is not used in any manner which will particularly benefit persons required to pay the inspection fees. Plaintiff also alleges that it buys from day to day, and has placed in its storage tanks, at its several places of business in the state of North Dakota, large quantities of kerosene, gasolene and other oils, and from such tanks furnishes the same directly to the consumer; that the inspector has notified plaintiff of his intention to hold, and he is holding,...
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