Broadbent v. Gibson

• Decision Date: 27 August 1943
• Docket Number: 6427
• Citation: 140 P.2d 939,105 Utah 53
• Court: Utah Supreme Court
• Parties: BROADBENT et al v. GIBSON et al

140 P.2d 939

105 Utah 53

BROADBENT et al v. GIBSON et al

No. 6427

Supreme Court of Utah

August 27, 1943

Appeal from District Court, Seventh District, Carbon County; F. W Keller, Judge.

Proceeding by Cecil Broadbent and others, copartners doing business under the name and style of Carbon Fruit Markets, against Marl D. Gibson, county attorney for Carbon County, Utah, for whom Edward Sheya, successor in office, was substituted, and others for an alternative writ of prohibition to prevent defendants from prosecuting plaintiffs for violation of Sunday Closing Law. The alternative writ issued by the District Court was vacated after hearing, and plaintiffs appeal.

Writ made permanent.

Christenson & Christenson, of Provo, for appellants.

Edward Sheya, Jr., of Price, Grover A. Giles, Atty Gen., and A. U Miner, Asst. Atty. Gen., for respondents.

WOLFE Chief Justice. LARSON and McDONOUGH, JJ., and M. J. BRONSON District Judge, concur. MOFFAT, Justice, concurring in the result. PRATT, J., on leave of absence.

OPINION

Wolfe, Chief Justice.

This is an appeal from a judgment of the district court vacating an alternative writ of prohibition theretofore issued against the defendants for the purpose of prohibiting them from prosecuting the plaintiffs under the so-called Sunday Closing Law, Section 103-53-1 and 2, R. S. U. 1933, now Sec. 103-53-1 and 2, U. C. A. 1943.

The appellants, hereafter called plaintiffs, are copartners and operate places of business at Price and Helper, Utah, under the name of the Carbon Fruit Markets. They were tried and convicted by the Justice of the Peace in Price for violating the Sunday Closing Law by the sale on Sunday of a cantaloupe and a sack of potato chips. Another complaint issued out of the Justice's Court in Helper charging that plaintiffs had violated the Sunday Closing Law by the sale of tomatoes on Sunday. This complaint pends.

When the question of enforcing the Sunday Closing Law against them arose, plaintiffs were not selling their general merchandise and groceries on Sunday, but kept their places of business open for the purpose of selling soft drinks, confections, tobacco, fresh fruits, vegetables, dairy products, and bakery products. Stores primarily designated as and in the business of selling certain, but not all, of these items are permitted by law to remain open on Sunday to sell such merchandise.

The county attorney threatened to file additional charges for each Sunday the plaintiffs stayed open for the purpose of selling any of the items enumerated above.

Plaintiffs filed a petition in the district court for an alternative writ of prohibition against the county attorney and the Justices of the Peace in Price and Helper. The district court issued the writ and ordered the defendants to show cause why the writ should not be made permanent. After hearing, the writ was vacated. Plaintiffs appeal.

Plaintiffs allege that the Sunday Closing Law is unconstitutional and that any complaint based thereon is likewise void. They, therefore, contend that the courts of the Justices of the Peace and the county attorney were "without jurisdiction, power, or authority to molest, interfere with, file charges against, issue complaints, * * * against the plaintiffs. Plaintiffs further allege that if the writ of prohibition is not issued they will suffer irreparable injury in that they will be compelled either to close their businesses in compliances with the alleged unconstitutional statute, or risk an adverse ruling on its constitutionality and subject themselves to heavy fines and a multiplicity of suits while an appeal on the conviction is pending.

Defendants deny that the statutes in question are unconstitutional, and counter that the plaintiffs have misconceived their remedy; that they are not entitled to the writ because they have an adequate and speedy remedy in the ordinary course of the law.

Sec. 20-5-4, R. S. U. 1933, gives Justices' Courts jurisdiction of all misdemeanors punishable by a fine of less than $ 300. Violations of the Sunday Closing Law, being punishable by a fine of not less than $ 5 nor more than $ 100, come within this general provision. The Justices' Courts in Price and Helper, therefore, have original jurisdiction to entertain charges of alleged violation of these laws, and in pursuance of said jurisdiction, to determine the constitutionality of said laws. The possibility that the Sunday Closing Law may be unconstitutional does not oust these courts of jurisdiction to hear and determine cases involving the constitutionality of the statutes.

A court is not unhorsed of jurisdiction merely because it might make or does make an erroneous holding in regard to constitutionality, but it may proceed to final judgment regardless of such error. Atwood v. Cox, 88 Utah 437, 55 P.2d 377. We must conclude that the justice Courts were not proceeding without jurisdiction.

It is well settled that the writ of prohibition should not issue where there is jurisdiction unless it appears that the petitioners will suffer irreparable injury if forced to employ their remedies in the ordinary course of the law. Atwood v. Cox, supra; Allen v. Lindbeck, 97 Utah 471, 93 P.2d 920; Mayers v. Bronson, 100 Utah 279, 114 P.2d 213, 136 A. L. R. 698; Evans v. Evans, 98 Utah 189, 98 P.2d 703.

If the Price case and the Helper case are each considered separately, it appears that the plaintiffs' remedy at law is adequate. In the Price case the plaintiffs have already been convicted. They may appeal from this conviction. The enforcement of the fine will be suspended until the appeal is decided and any errors will be corrected on appeal. Plaintiffs are not in a position comparable to that of a public officer who has been convicted of a crime that will result in forfeiture of his office. Nor will any harm ensue if plaintiffs are convicted in the Helper case and are in that case forced to employ their remedy of appeal. The element of hardship of which the plaintiffs are really complaining is the multiplicity of suits which the county attorney threatens to file if they continue to keep open their places of business on Sunday. Petitioners point out that if they close Sundays awaiting the outcome of an appeal, they would forego to their competitors the Sunday business during such period, and if they prevail they will have suffered loss of profits. But this alone is not necessarily irreparable damage. One of the risks of all citizenry is that they must submit to the law as it is declared until it is repealed or found invalid even though it entails some loss or inconvenience. The matter might take on a different aspect if the price of compliance to a questionable law affects the rights of a whole class and may mean ruin. While the difference may be one of degree, it is such a difference which may mean the issuance or withholding of the writ.

Perhaps the court is not entirely without some discretion in determining whether or not another adequate remedy exists. "Discretion" does not mean happy or fortuitous choice, but a discretion guided by circumstances surrounding the litigation. If the term "adequate remedy" were an absolute, it might be incorrect to say that we could ever grant the writ where there was another adequate remedy. But "adequate remedy" is a matter of degree and may run the gamut of situations at one end where not to grant the writ would leave the petitioner where he could not retrieve himself, (Atwood v. Cox) to situations on the other hand where not to grant the writ would leave the petitioner where there were no factors of hardship other than those which attend the ordinary judgment and appeal. In between, situations may arise where, in the single case at bar, there appears to be a remedy adequate in the ordinary course of the law, but where there are urgent public questions or questions of public policy involved directly or indirectly related or dependent upon the outcome, or where the urgent rights of a large group of the public await the resolution of the question, or where a multiplicity of suits threaten, or where some factors, either intrinsic or extrinsic to the litigation, reveal the ordinary course of the law really not to be adequate although on the face of things it may technically appear to be. In those cases the writ may issue in the sound discretion of the court. Perhaps another way of stating the proposition would be to say that such circumstances involve a contradiction and actually defeat the adequacy of the remedy at law--render it not so. In the last analysis, adequacy of legal remedy may be under certain circumstances a matter for reasonable differences of opinion. In such cases if judgment prevailed for issuing the writ over judgment against issuing it, it could be said to have issued in the sound discretion of the court, even though other minds might have reasonably concluded that the legal remedy was adequate. But "sound discretion" must always be labelled with the precautionary admonition that the writ is for extraordinary occasions and should be sparingly used.

The defendants contend that if the writ may be issued under the facts presented, injunction is obtainable. Thus they argue the petitioners do have an adequate remedy without the issuance of a writ of prohibition. While as a general rule the enforcement of a criminal statute would not be enjoined by injunction (28 Am. Jur. 372) there is one exception to this rule. An injunction will issue to restrain the enforcement of an unconstitutional statute when such restraint is necessary to prevent irreparable damage to property. Nation v. Chism, 154 Okla. 50, 6 P.2d 766; Wadhams Oil Co. v. Tracy, 141 Wis. 150, 123 N.W. 785, 18 Ann. Cas. 779; Joseph Schlitz Brewing Co. v. Superior, 117 Wis. 297, 93...