City of Bisbee v. Arizona Ins. Agency

• Decision Date: 14 November 1912
• Docket Number: Civil 1258
• Citation: 14 Ariz. 313,127 P. 722
• Parties: CITY OF BISBEE, a Municipal Corporation, and BASSETT WATKINS, Appellants, v. ARIZONA INSURANCE AGENCY, a Corporation, BRUCE PERLEY, and J. L. OVERLOCK, and GUS HAIGLER, Appellees
• Court: Arizona Supreme Court

127 P. 722

14 Ariz. 313

CITY OF BISBEE, a Municipal Corporation, and BASSETT WATKINS, Appellants, v. ARIZONA INSURANCE AGENCY, a Corporation, BRUCE PERLEY, and J. L. OVERLOCK, and GUS HAIGLER, Appellees

Civil No. 1258

Supreme Court of Arizona

November 14, 1912

APPEAL from a judgment of the Superior Court of the County of Cochise. Fred Sutter, Judge. Reversed and dismissed.

The fact are stated in the opinion.

Mr Edw. J. Flannigan, for Appellant.

Mr. G H. Neale, for Appellees.

OPINION

ROSS, J.

This is an action of injunction instituted by appellees to restrain the city of Bisbee and its marshal from enforcing the terms of an ordinance of said city requiring fire insurance agents to pay a quarterly license before transacting any business, and prescribing penalties for its violation. The complaint alleges the invalidity of the ordinance, irreparable injury not susceptible of estimation and a multiplicity of suits. The appellants demurred to the complaint for insufficiency in that it shows upon its face an adequate remedy at law.

As a general rule, the equity side of the court may not be invoked when the complainant has a plain, speedy, and adequate remedy at law. An examination of the complaint, with a view of ascertaining from its allegations whether it discloses that the appellees had an adequate remedy at law, is necessary. For a violation of the terms of the ordinance, the natural course, and the one provided by law, would be the arrest and trial of the transgressor in the municipal courts of the city of Bisbee. In that court and the superior court of Cochise county and the supreme court to which appeals may be had, the validity of the ordinance can be tested. the remedy ordinarily for such cases is in the criminal side of the courts, and we must presume the courts will declare the law, and, if the ordinance is found to be void, so adjudge it. Should it, however, be found invalid, the defendants would be in no worse position than if found innocent of violating a valid law. A party charged with crime has as much right to ask that equity pass upon the question of his innocence as to ask that it pass upon the validity or invalidity of the statute or ordinance denouncing the crime. The inapplicability of the writ of injunction to cases of this kind can be very forcibly illustrated by this case. Had the trial court found the ordinance valid, it could pronounce no judgment of conviction. The matter would have to be relegated to the courts of proper jurisdiction and the issue there tried out. Had the court found the ordinance void, its judgment would become final, but no one will contend that equity should take cognizance to declare an ordinance void and not to declare it valid. Should the ordinance be found valid upon a prosecution for its violation, the appellees cannot complain, no matter how it may affect their business. If it is invalid, that becomes a matter of defense to be interposed in the criminal prosecution.

"The legality or illegality of the ordinance is purely a question of law, which it is competent for a court at law to decide. We cannot assume that the courts in which the validity of the ordinance is presented will not decide this question correctly. . . . The legal presumption is, that every court will decide questions presented for determination properly, and conduct proceedings before them fairly and impartially (Wolfe v. Burke, 56 N.Y. 115), so that it is at once apparent that the main question upon which appellee relies, namely, the invalidity of the ordinance, can be presented and determined in any action which may be instituted against him for the violation of this ordinance; and as the law is well settled, by numerous well-considered cases, that, as a general rule, a bill in equity will not lie to restrain prosecutions under a municipal ordinance upon the mere ground of its alleged illegality, for the obvious reason that the party prosecuted thereunder has a complete remedy at law, because he can avail himself of such illegality as a legal defense in prosecutions thereunder (Poyer v. Village of Des Plaines, 20 Ill.App. 30; Levy v. City of Shreveport, 27 La. Ann. 620; Dillon on Municipal Corporations, secs. 906, 908, note; High on Injunctions, sec. 1244), it follows that the averment in the bill of appellee, that the ordinance of which he complains is invalid, is not, of itself, sufficient to entitle him to the relief granted by the lower court." Denver v. Beede, 25 Colo. 172, 54 P. 624.

The injury complained of may or may not follow a...