Davis v. Fasig

• Decision Date: 19 May 1891
• Docket Number: 16,019
• Citation: 27 N.E. 726,128 Ind. 271
• Parties: Davis et al. v. Fasig
• Court: Indiana Supreme Court

27 N.E. 726

128 Ind. 271

Davis et al. v. Fasig

No. 16,019

Supreme Court of Indiana

May 19, 1891

From the Vigo Circuit Court.

The judgment is reversed, with costs, and the court is directed to dissolve the injunction and to sustain the demurrer to the complaint, and for further proceeding in accordance with this opinion.

R. B Stimson and C. R. Stimson, for appellants.

G. W Fairs and S. R. Hamill, for appellee.

OPINION

Miller, J.

This was an action brought by the appellee against the mayor marshal, chief of police and city attorney of the city of Terre Haute, to enjoin them from hearing, determining or prosecuting any action to recover penalties under an ordinance of the city requiring saloons to be closed from eleven o'clock p. m. till five o'clock a. m., and on Sundays, election days and holidays.

The complaint was filed on the 13th day of December, 1890, during term time of court. Upon a showing that an emergency existed a temporary restraining order was issued, restraining the mayor and other officers from hearing or prosecuting actions for the enforcement of the ordinance until the 3d day of January, 1891, at which time the cause was set for hearing. Notice having been served on the appellants, they appeared at the time fixed for a hearing, and upon their motion the restraining order was so modified as to permit the prosecution of one suit, then pending in the circuit court against James Madigan, and leave was given the plaintiff to amend his complaint.

On the 28th day of January, the cause was heard, and upon the hearing an injunction was granted enjoining the hearing or prosecuting of actions for the enforcement of the ordinance, until the validity of the same should be finally determined.

This appeal is prosecuted from the final judgment of the court granting this injunction.

It appears from a return to a certiorari that since the cause has been pending in this court, an unsuccessful application was made by the appellants, in the court below, to dissolve the injunction appealed from, and we are asked on that account to dismiss this appeal. No authority is cited in support of the motion, and as it does not appear that the appellants have taken a position inconsistent with the one they occupy in this court, or that the position of the parties to this appeal has been, in any manner, changed or altered, the motion can not be sustained on that ground.

The appellee also asks that the appeal be dismissed, for the reason that the order of the court from which the appeal was taken was an interlocutory order, from which no appeal will lie.

As the judgment of the court, from which the appeal was taken, stood on the record when the cause was filed in this court, it might well be questioned whether it was appealable after the close of the term; but the judgment as amended by order of the court, and brought here by a certiorari is a final judgment.

The record, as amended, shows that the cause was "submitted to the court upon the facts alleged in the plaintiff's amended complaint; and the court being fully advised in the premises, finds for the plaintiff, and finds that the injunction as prayed for in plaintiff's amended complaint should be granted. It is therefore ordered and adjudged that the injunction as prayed for in plaintiff's amended complaint be granted and continued until the validity of the ordinance in question shall have been finally determined."

This was not an interlocutory order staying proceedings in a cause for a time, as was the case in Taylor v. Board, etc., 120 Ind. 121, 22 N.E. 108, but was a final termination of the suit.

The amended complaint alleges that the petitioner is a resident, citizen and taxpayer of the city, engaged in keeping a saloon for the sale of intoxicating liquors, to be drank on the premises; that he brings this action and files the petition on behalf of himself and one hundred and seventy other persons similarly situated. It also alleges that the defendants have commenced prosecutions against the plaintiff and others for alleged violation of the ordinance, which is incorporated in the complaint, and will, unless restrained by the court, commence other prosecutions for the enforcement of the ordinance.

The objections to the ordinance are stated as follows:

"And your petitioner also shows that said ordinance is unconstitutional, illegal and absolutely void, it being unreasonable in its provisions, uncertain in its terms, in restraint of trade, prohibitory, and the same is in conflict with and contrary to the provision of section 21 of article 1 of the Constitution of the State of Indiana."

It is averred that before the commencement of this suit a prosecution had been instituted before the mayor of the city against one James Madigan, for a violation of the ordinance, which action had been appealed, and was pending in the circuit court; that the question of the validity of the ordinance could be determined in that action.

The complaint shows the apprehension and distress of the plaintiff at the prospect of the failure of the threatened prosecutions, and the consequent increased liability of the city for costs, which he says would be irreparable.

The prayer asks for a temporary restraining order, and that a writ of prohibition issue commanding the defendants to abstain from filing any complaints for the recovery of the penalties provided for by said ordinance, or from prosecuting any of the actions pending, except the one against Madigan, until the validity of the ordinance should be determined in that action.

The city ordinance is as follows:

"An ordinance regulating the closing of saloons.

"Section 1. Be it ordained by the common council of the city of Terre Haute, that at the hour of 11 o'clock p. m. it shall be the duty of every person who is keeping or assisting to...