Hall v. Dunn

• Citation: 97 P. 811,52 Or. 475
• Parties: HALL v. DUNN, County Judge, et al.
• Decision Date: 27 October 1908
• Court: Supreme Court of Oregon

97 P. 811

52 Or. 475

HALL v. DUNN, County Judge, et al.

Supreme Court of Oregon

October 27, 1908

Appeal from Circuit Court, Jackson County; H.K. Hanna, Judge.

Injunction suit by J.C. Hall against George W. Dunn, county judge, and others. From a judgment for plaintiff, defendants appeal. Affirmed.

This is a suit by J.C. Hall against George W. Dunn, as county judge and Joshua Patterson and George Brown, as county commissioners, of Jackson county, to enjoin them, as the county court thereof, from making an order declaring the result of a majority of the votes cast in the entire county in favor of prohibition and directing the absolute interdiction of the sale of intoxicating liquors therein, so far as the mandate might affect the city of Medford. The complaint states generally that, pursuant to an ordinance of that city, the plaintiff secured a license June 6, 1908 permitting him to sell at retail in that municipality spirituous, malt, and vinous liquors for a term of six months; that at a general election held June 1, 1908, there was submitted to the voters of Jackson county, as a whole including the city of Medford, the question whether or not the sale of intoxicating liquors should be prohibited, and 2,138 votes were cast in favor of the measure and 1,881 against it; that the defendants are the respective officers mentioned, and as such threaten to convene the county court to declare the result of the election and to make an order absolutely prohibiting the sale of intoxicating liquors in the entire county, which direction they have no authority to make, so far as the prescription may affect Medford, in that the local option liquor law and all other related enactments do not apply to that city; that the charter of Medford enacted February 6, 1901, conferred power upon the council to tax and regulate the sale of intoxicating liquors; that such act was repealed by the legislative assembly in the year 1905, when a new charter was granted, authorizing the council to license, tax, regulate, or prohibit the sale of intoxicating liquors; that the plaintiff has for several years prior hereto been engaged in keeping a saloon at Medford, and is the owner therein of fixtures and of a stock of liquors, used in the business, of a greater value than $2,500; that, unless restrained, the defendants will execute their menace, thereby preventing the plaintiff, to his injury and damage, from conducting his business in that city; and that he has no plain, speedy, or adequate remedy at law for his loss, because the laws of Oregon contain no provision for contesting an election held for the purpose of voting upon the question of prohibition. A demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of suit, was overruled, and, the defendants declining further to plead or answer, the relief prayed for was granted; and they appeal.

Wm. M. Colvig, for appellants.

Wallace McCamant, for respondent.

MOORE, J. (after stating the facts as above).

The right of an equity tribunal to grant an injunction in the case at bar is challenged on the ground that the plaintiff could, by a writ of review, have tested the validity of the order of the county court directing an election to be held in the entire county, and, as an adequate remedy at law was thus afforded, errors were committed in overruling the demurrer and in granting the relief awarded. A suit in equity may be maintained in this state for the enforcement or protection of a private right, or the prevention of or redress for an injury thereto, in all cases where there is not a plain adequate, and complete remedy at law. B. & C. Comp. § 390. The right of an equity tribunal to hear and determine a cause, of which a court of law may have concurrent jurisdiction, is not defeated unless the legal remedy, in respect to the final relief and the mode of securing it, is as efficient as the redress which a court of chancery can afford under the same circumstances. South Portland Land Co. v. Munger, 36 Or. 457, 473, 54 P. 815; 60 P. 5; Benson v. Keller, 37 Or. 120, 129, 60 P. 918; Livesley v. Johnston, 45 Or. 30, 50, 76 P. 13, 946, 65 L.R.A. 783, 106 Am.St.Rep. 647.

The statute, prohibiting equitable intervention except in the cases specified, is probably declaratory of a pre-existing rule, founded upon the principle that in the ascertainment of disputed questions of fact the fundamental law guarantees in all civil cases the right to a trial by jury. Const.Or. art. 1, § 17; Phipps v. Kelly, 12 Or. 213, 215, 6 P. 707. The writ of review, which is substantially the common-law writ of certiorari, is denominated a "special proceeding." B. & C. Comp. § 594. The return to the writ brings up the record of the inferior court, officer, or tribunal, not for the purpose of ascertaining an issue of fact, but to determine whether or not the functions of the court, officer, or tribunal have been exercised erroneously, or that the jurisdiction employed has been exceeded. Id. § 597. It will thus be seen that the only inquiry to be considered, upon the return to a writ of review, is a question of law, in the examination of which the parties are not entitled to a jury trial, thus taking the proceedings out of the reason usually assigned for excluding equitable interposition.

If a writ had been issued to review the specified action of the county court, every sale by the plaintiff of intoxicating liquor in Medford, until the proceedings had been finally determined, might have subjected him to criminal prosecutions for alleged violations of the provisions of the local option liquor law; whereas a temporary injunction would have prevented the maintenance of such actions until the suit in equity had terminated. Multiplicity of criminal actions against the plaintiff, or of civil actions by him for the recovery of the damages which he might sustain, is not alone deemed sufficient always to authorize a court of equity to assume jurisdiction and to grant an injunction in a cause in which relief could have been obtained in an action at law. 22 Cyc. 791. Though an individual may, under some circumstances, maintain an action against a municipal officer for enforcing the provisions of a void criminal law, any judgment that might be rendered in such action would be fruitless if the officer were insolvent; for municipal corporations are not generally liable for trespasses committed by their officers in the enforcement of void enactments in the attempted exercise of police powers. 20 Am. & Eng.Ency.Law (2d Ed.) 1195. It is evident that a writ of review is not as efficient in the case at bar as the remedy which injunction affords.

In Sandys v. Williams, 46 Or. 327, 336, 80 P. 642, 645, it is said: "Where criminal prosecutions under color of a void law are threatened, which act, if enforced, would deprive a party of a property right, a preliminary injunction may properly be issued to prevent the menaced injury. 1 Spelling (2d Ed.) § 24. Equity has jurisdiction to interpose by injunction where public officers, under a claim of right, are proceeding illegally to injure the property of individuals or corporations." The legal principle thus announced has been followed in the cases of Marsden v. Harlocker, 48 Or. 90, 85 P. 328, 120 Am.St.Rep. 786, and Renshaw v. Lane County Court, 49 Or. 526, 89 P. 147. The rule is quite general that a court of equity has no jurisdiction by injunction to restrain the enforcement of criminal proceedings. This precept, nevertheless, is subject to an exception, in referring to which a text-writer observes: "There are some cases, however, in which a court of equity may enjoin acts affecting property rights though such acts may also be indictable." Beach, Modern Eq.Pr. § 762. The deviation adverted to is well recognized, and is based on the ground that a suit for an injunction is against the officer individually, and therefore not against the municipality, state, or other sovereign power for which he assumes to act. 11 Am. & Eng.Ency.Law (2d Ed.) 199; 22 Cyc. 903; Delaware Surety Co. v. Layton (Del.Ch.) 50 A. 378, 380; Nelson v. State Board of Health, 108 Ky. 769, 782, 57 S.W. 501, 50 L.R.A. 383; Gile v. Stegner, 92 Minn. 429, 431, 100 N.W. 101; Mutual Life Ins. Co. v. Boyle (Fed.) 82 F. 705, 710; Board of Liquidation v. McComb, 92 U.S. 531, 541, 23 L.Ed. 623; Noble v. Union River Log. Ry. Co., 147 U.S. 165, 172, 13 Sup.Ct. 271, 37 L.Ed. 123; th v. Ames,

169 U.S. 466, 518, 18 Sup.Ct. 418, 42 L.Ed. 819. If it is assumed, therefore, that a writ of review would have afforded the plaintiff a legal remedy for the injury, which he might have sustained in the manner indicated, a court of equity, based on the facts alleged in the complaint, also has concurrent jurisdiction of the subject-matter of the suit and was authorized to grant a temporary injunction.

The next question to be considered is whether or not the city of Medford is exempted from the operation of the provisions of the local option liquor law. The determination of this inquiry necessitates an examination of certain enactments deemed applicable to the discussion. The legislative assembly passed an act February 6, 1901, granting a charter to that city, which authorized the council to enact ordinances and adopt regulations, inter alia, as follows "To license, tax, regulate or prohibit bar-rooms, drinking shops, billiard rooms, bowling alleys, dance houses, and all places where spirituous, malt or vinous liquors are sold or kept for sale: Provided, that no license for the sale of spirituous, malt or vinous liquors shall be granted for any less amount than is or may be provided by the general laws of the state in force at the time of the granting thereof." Sp.Laws Or. 1901, p. 186, c. 4, § 25, subd. 19. An act was...