Littleton v. Burgess, County and Prosecuting Attorney

• Decision Date: 28 November 1905
• Parties: LITTLETON v. BURGESS, COUNTY AND PROSECUTING ATTORNEY
• Court: Wyoming Supreme Court

82 P. 864

14 Wyo. 173

LITTLETON v. BURGESS, COUNTY AND PROSECUTING ATTORNEY

Supreme Court of Wyoming

November 28, 1905

ERROR to the District Court, Sheridan County, HON. RICHARD H SCOTT, Judge of the First Judicial District, presiding.

This was a suit instituted by Fred Littleton to enjoin James H Burgess, County and Prosecuting Attorney of Sheridan County from prosecuting a criminal proceeding in the District Court of that county charging the plaintiff with a violation of the statute of the state prohibiting gambling. From a judgment dismissing the suit, after a demurrer to the petition had been sustained, the plaintiff prosecuted a proceeding in error.

Affirmed.

M. B Camplin, for plaintiff in error. (J. F. Hoop, of counsel.)

The test of equity is the absence of an adequate remedy at law; but an adequate remedy at law is one that is practical, and is as efficient to the ends of justice and its prompt administration, as the remedy in equity (Richardson v. Meyer, 54 Neb. 319), or that the pursuit of such legal remedy will afford him as prompt and efficient redress as the remedy by injunction. (Wartier v. Williams, 53 Neb. 143; Wehmer v. Fokenga, 57 Neb. 510; Boyce v. Grund, 3 Peters, 210.) There can be no question but that the court has jurisdiction of the subject matter, and has the power to grant relief. (Sec. 10, Art. 5, Const.; Div. 3, Tit. 8, Ch. 4, R. S. 1899.) An injunction will lie to prevent the authorities from closing up one's business as being in the nature of an interference with property. (Ryan v. Jacobs, 6 W. L. B. (Ohio), 139.) A private citizen, to enjoin the enforcement of a public law, must be threatened with an injury peculiar to himself. (Grant v. Cook, 7 D. C., 165.) An injunction will lie to restrain a District Attorney from instituting criminal prosecution under color of invalid statute, for the purpose of compelling the relinquishment of a property right. (Cent. Tr. Co. v. R. Co., 80 F. 218; High on Inj., 1308; Atlanta v. Gas Light Co., 71 Ga. 126; R. Co. v. Board, 5 Colo. App., 129; Dobbins v. Los Angeles, 195 U.S. 223; La Harpe v. Gas Light Co., 76 P. 448; Hillman v. Seattle, 73 P. 791; Bank v. Mylin, 76 F. 385; Canal and Mill Co. v. Lee, 29 P. 1036; Rushville v. Nat'l Gas Co. (Ind.), 28 N.E. 853; State v. Hughes (Mo.), 16 S.W. 489.) Where it is alleged that a public body is proceeding to interfere with the rights of a person or a corporation in a manner which will cause damage, for which there is no adequate remedy at law, or which may cause a multiplicity of suits, and it is further alleged that the law under which the proceedings are in progress is unconstitutional, the petition presents cause for equitable relief by injunction to prevent further action. (Pac. Exp. Co. v. Cornell, 59 Neb. 364.) In the case at bar, not only are the stated rights of the plaintiff at stake, but the rights of the City of Sheridan, a political subdivision of the state, are expressly involved. And it is under express authority from such city, by virtue of specially expressed delegated power by the Legislature of the state, which furnishes the basis for the plaintiff's petition, in one respect. To admit the spiteful and arbitrary course and conduct charged in the petition, and all other facts therein stated, and deny that the plaintiff is entitled to relief, is in our judgment untenable. It is fundamental that if a person commits an offense under a color or claim of right, however unfounded it may be, if he believed he had a right to do the act, he is not guilty of crime. In this case the alleged offense is a misdemeanor, if anything.

The plaintiff was arrested and threatened with arrests for permitting the games to be carried on in a certain building within the corporate limits of the City of Sheridan, for which he had and held a license from said city, under Section 3 of Chapter 65, Session Laws of Wyoming, 1901, which section the petition alleges to be void. (Counsel here discussed in his brief at some length the various grounds upon which the invalidity of the statute was claimed, and also the proposition that the statute under which the prosecution was based was without force in the City of Sheridan because of power granted in the charter of the city to license the carrying on of games prohibited by the later general statute.)

E. E. Enterline, Lonabaugh & Wenzell and Charles A. Kutcher, for defendant in error.

It is a well settled rule both in England and America that a court of equity has no jurisdiction to interfere by injunction to restrain a criminal prosecution, whether the prosecution be for violation of statute or for an infraction of municipal ordinances. (16 Ency. L. (2d Ed.), 370-371; Poyer v. Des Plains, 123 Ill. 111; Crighto v. Dahmer, 21 L. R. A., 84; Chisholm v. Adams, 71 Tex. 678; Joseph v. Burke, 46 Ind. 59; Portis v. Fall, 34 Ark. 375; Holderstaff v. Saunders, 6 Mod., 12; Suess v. Noble, 31 F. 855; Wagoner v. Drake, 31 F. 849; In re Sawyers, 124 U.S. 200; Phillips v. Stone, 61 Ga. 386; Pope v. Savannah, 74 Ga. 365; Moses v. Mobile, 52 Ala. 198; Burnett v. Craig, 68 Am. Dec., 115.)

M. B. Camplin and J. F. Hoop, for plaintiff in error, in reply.

Where the enforcement of an ordinance or statute would work great injury to property rights, injunctions are allowed. (Louisiana St. Lottery Co. v. Fitzpatrick, 3 Woods, 222; Bottling Co. v. Welch, 42 F. 563; Cent. Tr. Co. v. R. Co., 80 F. 225; Mobile v. R. Co., 84 Ala. 116; Atlanta v. Gas Co., 71 Ga. 107; Davis v. Fasig, 128 Ind. 271; Baltimore v. Radeck, 49 Md. 217; Schuster v. Metropolitan B. of H., 49 Barb., 450; Austin v. City Cem. Asso., 87 Tex. 330; Louisville v. Gray, 1 Litt., 147; Shinkle v. Covington, 83 Ky. 430.)

VAN ORSDEL, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

VAN ORSDEL, JUSTICE.

This is an injunction proceeding brought in the District Court of Sheridan County by the plaintiff in error against the defendant in error for the purpose of restraining the latter, as Prosecuting Attorney of Sheridan County, from prosecuting the former for violations of the provisions of Chapter 65, Session Laws of 1901, being an act prohibiting gambling within the State of Wyoming. Plaintiff in his amended petition alleges, among other things, that on the 28th day of July, 1904, he was granted licenses by the town of Sheridan, permitting him to conduct and carry on games of faro and roulette in a building occupied by him in said town; that said licenses were issued under and by virtue of an ordinance regularly enacted by the Town Council of said town; that the authority for the enactment of said ordinance is found in the provisions of a special charter granted by the Legislature of the Territory of Wyoming for the incorporation of said town, wherein among other powers granted, the town is empowered and authorized "to levy and collect a license tax from billiard tables, bowling alleys, and other games and gaming tables"; that said provision of said charter was not repealed by said Chapter 65, and is still in full force and effect; that, notwithstanding said licenses, the defendant, in the name of the State of Wyoming, filed three informations in the District Court of Sheridan County charging plaintiff with violations of the provisions of said Chapter 65; and that defendant threatened to file additional informations against plaintiff for each and every violation of said statute. It is further alleged in the petition that said Chapter 65 is unconstitutional and void. Plaintiff prayed for a temporary restraining order enjoining the defendant from interfering with the plaintiff in carrying on, running or conducting the games of faro and roulette within the corporate limits of the town of Sheridan, and from causing further arrests of the plaintiff; and that at the final hearing said temporary injunction should be made permanent. Defendant demurred to the petition on the following grounds: "(1) That the said amended petition does not state facts sufficient to constitute a cause of action; (2) that this court has no jurisdiction of the subject of the action." The demurrer was sustained by the court and plaintiff refusing further to plead, judgment was entered dismissing the action and awarding costs to defendant, from which judgment plaintiff brings error to this court.

The principal question that confronts us, and one which we think is decisive of this case, is whether a court of equity has jurisdiction to afford the relief sought by the plaintiff. The jurisdiction of a court of equity, unless expressly made so by statute, is limited to the protection of the rights of property. It has no jurisdiction over the prosecution of crimes. To assume such jurisdiction is to invade the domain of the courts of law and both the executive and administrative departments of government. Let us investigate for a moment where the contention of plaintiff if sustained would lead. The defendant is the Prosecuting Attorney of Sheridan County charged with the duty of prosecuting within his county all infractions of the criminal laws of the state. He was proceeding under the provisions of a general statute of the state making gambling a crime and prohibiting the same. Criminal prosecutions are conducted in Wyoming in the name of the state. The prosecuting officer is a mere agent of the state, which is the real plaintiff, in every criminal proceeding. We have, therefore, in this case the strange anomaly of a court of equity being asked to issue an order of injunction to restrain the state from exercising one of its highest prerogatives in the maintenance of government. Courts of equity possess no such power. To hold that they do would be to invest them with power to restrain and paralyze the operation of the government itself in all its functions and...