City of Gary v. Gary Warehouse Co.

• Decision Date: 30 November 1944
• Docket Number: 28020.
• Citation: 57 N.E.2d 767,223 Ind. 82
• Parties: CITY OF GARY et al. v. GARY WAREHOUSE CO., Inc., et al.
• Court: Indiana Supreme Court

57 N.E.2d 767

223 Ind. 82

CITY OF GARY et al. v. GARY WAREHOUSE CO., Inc., et al.

No. 28020.

Supreme Court of Indiana

November 30, 1944

Appeal from Superior Court, Lake County; Fred A. Egan Judge.

Samuel S. Dubin, City Atty., and J. Edwin Smith Asst. City Atty., both of Gary, for appellants.

Draper & Eichhorn, of Gary, and David Axelrod, of Chicago, Ill for appellees.

RICHMAN Judge.

This is an appeal from a decree enjoining appellants from enforcing two penal ordinances of the City of Gary requiring annual license fees for commercial motor vehicles using the city streets. The appellees were plaintiffs below. One ordinance purports to apply to vehicles kept within the city and whose commercial use is mainly upon the streets of Gary. Only one of the appellees is affected by this ordinance The other ordinance by its terms is applicable to vehicles not kept within the city and whose commercial use is not mainly upon the streets of Gary. The other two appellees are affected by this ordinance, one of them keeping its vehicles in another state and the other keeping its vehicles in the City of Hammond.

The complaint was in three paragraphs, each by a separate plaintiff, who stated therein that he sued 'in his own behalf and in behalf of all others similarly situated.' Each plaintiff sought to justify resort to a court of equity by the following allegation:

'That said defendants and their respective agents and employees and persons acting under their control and direction will institute and prosecute criminal or quasicriminal proceedings for the violation of said ordinances; and that the institution or prosecution of such criminal or quasicriminal suits will result in a multiplicity of suits in each of which the question of validity, reasonableness and constitutionality of said ordinances would be raised as a defense and would have to be separately tried; and that the plaintiff and others similarly situated would suffer irreparable injury unless the defendants, and each of them and their respective agents, servants, and employees be enjoined and restrained from enforcing compliance with said ordinance.'

No question was raised below, nor is here raised, as to the jurisdiction of the trial court nor did appellants challenge in any manner the unusual method of joining plaintiffs and their alleged causes of action. The parties obviously were cooperating to get a declaratory decree. They chose the wrong method.

The case is substantially like Lickey v. City of South Bend, 1934, 206 Ind. 636, 190 N.E. 858, decision of which is based upon the announced rule that where no property rights are involved a court of equity lacks jurisdiction to enjoin enforcement of the provisions of a penal licensing ordinance. Whether the involvement of other than property rights will give the court jurisdiction we need not determine. It is sufficient to say that no such threatened injury to appellees' business or civil rights is shown as to take the case out of the general rule. The Lickey case applies principles stated in State ex rel. Fry v. Superior Court of Lake County, 1933, 205 Ind. 355, 186 N.E. 310, where prior authorities are considered at length. See also State ex rel. Feeney v. Superior Court, 1934, 206 Ind. 78, 188 N.E. 486; Goldblatt Bros. Corp. v. City of East Chicago, 1937, 211 Ind. 621, 627, 6 N.E.2d 331, 333; State ex rel. Egan v. Superior Court of Lake County, 1937, 211 Ind. 303, 6 N.E.2d 945; Dep't of State v. Kroger Grocery & Baking Co., 1943, 221 Ind. 44, 46 N.E.2d 237. The only difference between the case at bar and the Lickey case is that here appellees attempted a class action and grounded it on the danger of a multiplicity of suits. If a plaintiff suing for himself only is not entitled to an injunction he surely cannot enlarge his right by the allegation that he sues for others similarly situated. So there remains only the question of jurisdiction because of the danger of multiplicity of actions. The subject was considered in the Fry case, supra, where there was one plaintiff who anticipated numerous prosecutions. The court said [205 Ind. 355, 186 N.E. 313]:

'From an examination and analysis of the authorities, it appears to be the rule that courts of equity have no jurisdiction to enjoin actions at law by a state, but that they have jurisdiction to enjoin officers who, under color of authority of unconstitutional or void legislation by the state, are guilty of personal trespasses, wrongs, infringements, or encroachments upon the property of an individual in violation of his constitutional rights, and that a criminal action is not of itself such an invasion as affects property rights notwithstanding the necessity of a defense and the threat of frequent indictment, which is not the kind of multiplicity of action which will give a court of equity jurisdiction. Fitts v. McGhee, [1899, 172 U.S. 516, 19 S.Ct. 269, 43 L.Ed. 535].'

Later in the opinion three prior cases granting relief by injunction were noted and distinguished including Davis v. Fasig, 1891, 128 Ind. 271, 27 N.E. 726. There a saloon keeper sued to enjoin recovery of penalties under an ordinance fixing opening and closing hours, alleging that prosecutions had been started against himself and others and that he filed the petition on behalf of himself and one hundred and seventy other persons similarly situated. The only place where a multiplicity of actions is mentioned is one sentence quoted in the Fry opinion. From this the court jumps to another alleged ground of jurisdiction citing Mayor, etc., of Baltimore v. Radecke, 1878, 49 Md. 217, 33 Am.Rep. 239, as authority for the proposition that 'any party whose interests are to be injuriously affected thereby' may have an injunction against the enforcement of a void ordinance. This seems to have been the real basis of Judge Miller's opinion in the Davis case. We have examined the Maryland case and the eight cases cited therein and find that in each of them there was a valid and recognized ground of equity jurisdiction, usually involvement of a property right. None of them was put on the multiplicity doctrine. It is not a new thing for parties by avoiding mention thereof to attempt to confer jurisdiction where it does not exist. This was true in the old case of Youngblood v. Sexton, 1875, 32 Mich. 406, 20 Am.Rep. 654, wherein Judge Cooley said:

'The question then presents itself, how this bill came to be filed, and on what ground the superior court was asked to and did proceed to render a decision on the merits. The jurisdictional question has not been argued in this court but we are not inclined to pass it over in silence, thereby giving countenance to the idea, that by the mere acquiescence of parties a jurisdiction may be made for a court of...