Moss & Co. v. McCarthy

• Decision Date: 27 September 1911
• Citation: 191 F. 202
• Court: U.S. District Court — Northern District of California
• Parties: MOSS & CO. v. McCARTHY et al.

191 F. 202

MOSS & CO. v. McCARTHY et al.

United States Circuit Court, N.D. California.

September 27, 1911

[Copyrighted Material Omitted]

L. S Melsted and Edwin H. Williams, for complainant.

Charles M. Fickert, Dist. Atty., and Aylett R. Cotton, Jr., Asst Dist. Atty., for defendants.

VAN FLEET, District Judge.

This is a bill in equity seeking to enjoin the enforcement by the municipal authorities of the city and county of San Francisco of an ordinance passed by its board of supervisors 'to prohibit bucketing and bucket shopping and to abolish bucket shops' therein, and providing for the punishment by fine and imprisonment of those who violate its provisions, on the ground that such ordinance is in violation of complainant's rights guaranteed by the Constitution of the United States, in that it unduly limits its right of contract and is unreasonable, arbitrary, and discriminatory.

There are two reasons why the court is not called upon to examine into the question of the validity of the ordinance in question or to determine whether it violates complainant's rights in the respects complained of.

In the first place, the bill does not state a case justifying the interposition of a court of equity. An inspection of the ordinance in question discloses that it is purely penal in character, and is to be enforced only by the arrest and prosecution of one charged with a violation of its provisions, and his conviction thereof in the courts of the state. The relief sought, therefore, while nominally against certain threatened acts of the mayor and chief of police hereinafter noticed, is in reality but to restrain the institution and prosecution of criminal charges against the complainant, or its servants and agents and patrons, for misdemeanors created by the ordinance. Such relief it is not within the province of equity to afford. It is well established that a court of equity has no general power to interfere to stay the hand of the state authorities in the institution or prosecution of criminal proceedings 'unless they are instituted by a party to a suit already pending before it, and to try the same right that is in issue there or to prohibit the invasion of the rights of property by the enforcement of an unconstitutional law. ' Davis & Farnham Mfg. Co. v. Los Angeles, 189 U.S. 207, 217, 23 Sup.Ct. 498, 500, 47 L.Ed. 778.

'The office and jurisdiction of a court of equity,' say the Supreme Court in Re Sawyer, 124 U.S. 200, 8 Sup.Ct. 482, 31 L.Ed. 402, 'are limited to the protection of rights of property. It has no jurisdiction over the prosecution, the punishment, or the pardon of crimes or misdemeanors, or over the appointment and removal of public officers. To assume such a jurisdiction, or to sustain a bill in equity to restrain or relieve against proceedings for the punishment of offences, or for the removal of public officers, is to invade the domain of the courts of common law, or of the executive and administrative department of the government.'

See, also, Fitts v. McGhee, 172 U.S. 516, 19 Sup.Ct. 269, 43 L.Ed. 535, and cases there referred to.

In this last case, in speaking of the remedy of one assailed by arrest or prosecution under an unconstitutional law by officers of the state, it is said:

'Under the view we take of the question, the citizen is not without effective remedy, when proceeded against under a legislative enactment void for repugnancy to the supreme law of the land; for, whatever the form of proceeding against him, he can make his defense upon the ground that the statute is unconstitutional and void.

And that question can be ultimately brought to this court for final determination. * * *

'Let them appear to the indictment and defend themselves upon the ground that the state statute is repugnant to the Constitution of the United States. The state court is competent to determine the question thus raised, and is under a duty to enforce the mandates of the supreme law of the land. Robb v. Connolly, 111 U.S. 624 (4 Sup.Ct. 544, 28 L.Ed. 542). And, if the question is determined adversely to the defendants in the highest court of the state in which the decision could be had, the judgment may be re-examined by this court upon writ of error. That the defendants may be frequently indicted constitutes no reason why a federal court of equity should assume to interfere with the ordinary course of criminal procedure in a state court.'

By certain averments in its bill complainant seeks to bring the case within the exception above noted, that equity will interfere to restrain a threatened invasion of property rights. In that regard it is alleged that complainant has invested large sums of money in renting and fitting up offices, of which it has a number in San Francisco and in other places in the state and on the Coast, all connected by wires leased for the purpose, and provided with paraphernalia for carrying on its business of brokerage in dealing in stocks, bonds, and other securities sold on the stock market; that the defendant McCarthy, the mayor, has stated and threatened, prior to the adoption of the ordinance, that 'he would make it his business to see that the business now owned by your orator would be destroyed, and that it would be made impossible for said business to be longer conducted'; that the defendant Seymour, the chief of police, has threatened to enforce the ordinance and has 'refused to promise or agree to arrest a single person so that the constitutionality of this ordinance could be tested without destroying plaintiff's business, and intimated that he would enforce said ordinance by making a raid upon the place of business of your orator in said city and county of San Francisco, and arrest the patrons of said business and tear down the office appurtenances used in the conduct of said business and make it impossible for said business to remain in operation, but would compel the same to close'; and that like threats have been made by one of the captains of police under the directions and authority of said chief. And it is alleged:

'That the commission of said acts by defendants will destroy plaintiff's business and will produce great and irreparable injury to your orator, and that no pecuniary compensation will afford your orator adequate relief, and that the amount of damages which said acts would cause could not be estimated at law, and that plaintiff has no plain, speedy, or adequate relief or remedy at law.'

These averments do not make a case within the exception sought to be invoked. The threatened invasion or injury to property rights must be an injury which will naturally and...