Nims v. Gilmore

Citation107 P. 79,17 Idaho 609
PartiesRAYMOND A. NIMS, Appellant, v. J. M. GILMORE et al., Respondents
Decision Date26 January 1910
CourtUnited States State Supreme Court of Idaho

LOCAL OPTION STATUTE-CONSTITUTIONALITY-INJUNCTION-CRIMINAL PROSECUTIONS.

1. The decision in Gillesby v. Board of County Commissioners, ante p. 586, holding local option statute constitutional, followed and approved.

2. An injunction will not issue, upon the application of a person holding a license authorizing such person to sell and dispose of intoxicating liquors in a county, to restrain the prosecuting attorney from enforcing the local option statute in said county, upon the ground that such statute has not been legally adopted by the electors of said county.

3. A person has no vested right to sell intoxicating liquors, and a license authorizing sales to be made confers no property right upon the holder of such license; and the fact that prosecutions may be waged against the holder would not invade or destroy any property right, and would not authorize an injunction to issue restraining prosecutions, upon the ground that the holder of such license would suffer irreparable injury.

(Syllabus by the court.)

APPEAL from the District Court of the Second Judicial District, for Idaho County. Hon. Edgar C. Steele, Judge.

Application to enjoin the prosecuting attorney from prosecuting violations of the local option statute on the ground that it has never been adopted in the county of Idaho. From an order denying the injunction this appeal is taken. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Chas L. McDonald, for Appellant.

Our statute defining the grounds upon which an injunction will issue is extremely broad, and as construed by this court it is to the effect that where an injunction will give the needed relief more expeditiously and completely than any other remedy, it may issue, regardless of whether or not the injury complained of is irreparable, and notwithstanding there may be legal remedies that may be invoked. (Sec. 4288 Rev. Codes; Meyer v. Bank, 10 Idaho 175, 77 P. 334; Price v. Grice, 10 Idaho 443, 79 P. 387.)

"An injunction is proper to restrain an officer from acting under an unconstitutional or otherwise invalid statute where irreparable injury to complainant will result therefrom." (22 Cyc. 884, 892.)

"Courts of equity have power to enjoin public officers who are proceeding under a claim of right and are about to impair property rights or cause a multiplicity of suits by their actions." (State ex rel. Ladd v. District Court (N. D.), 115 N.W. 675; Smith v. Bangs, 15 Ill. 400; Mohawk & H. R. Co. v. Artcher, 6 Paige, 83; Schuster v. Met. B. of H., 49 Barb. 450; Jewett Bros. v. Smail, 20 S.D. 232, 105 N.W. 738; Minneapolis Brewing Co. v. McGillivray, 104 F. 258; American School v. McAnnulty, 187 U.S. 94, 23 S.Ct. 33, 47 L. ed. 90.)

"Where property rights will be destroyed, unlawful interference by criminal proceedings under a void law or ordinance may be reached and controlled by a court of equity." (Baseball Club v. New Orleans, 118 La. 228, 118 Am. St. 366, 42 So. 784, 7 L. R. A., N. S., 1014; L'Hote v. New Orleans, 51 La. Ann. 96, 24 So. 608, 44 L. R. A. 90; High on Injunctions, sec. 68; Dobbins v. Los Angeles, 195 U.S. 241, 25 S.Ct. 18, 49 L. ed. 169; McFarlain v. Jennings, 106 La. 545, 31 So. 62; Atlanta v. Gate City Gas Co., 71 Ga. 106; Port of Mobile v. Louisville & N. R. Co., 84 Ala. 125, 5 Am. St. 342, 4 So. 106; Davis v. Fasig, 128 Ind. 271, 27 N.E. 727; Fellows v. City of Charleston, 62 W.Va. 665, 125 Am. St. 990, 59 S.E. 623, 13 L. R. A., N. S., 737, and cases cited therein; City of Austin v. Cemetery Assn., 87 Tex. 330, 47 Am. St. 114, 28 S.W. 528; Sweeney v. Webb, 33 Tex. Civ. App. 324, 76 S.W. 768.)

In the litigation arising over the enforcement of local option statutes, the supreme court of Oregon has repeatedly held that a court of equity has jurisdiction to restrain by injunction the enforcement of the law when the election by which it was adopted was invalid. (Sandys v. Williams, 46 Ore. 327, 80 P. 642; Hall v. Dunn, 52 Ore. 475, 97 P. 812; Guernsey v. McHaley, 52 Ore. 555, 98 P. 158.)

J. M. Gilmore, Pros. Atty. of Idaho County, for Respondents.

The validity of an election held under local option law is not open to impeachment or attack in collateral proceedings. A bill in equity will not lie to restrain the authorities from declaring the local option law to have been adopted at the election, or from putting it in force, on the ground that the complainant, a licensed dealer, would be injured in his business by the enforcement of the local option law. (23 Cyc. 101.)

"The imperfection of a law will not render it void, unless it is so imperfect as to render it utterly impossible to execute it." (Cochran's Lessees v. Loring, 17 Ohio 427; Winter v. Jones, 10 Ga. 200, 54 Am. Dec. 379; Sutherland, Stat. Const., 2d ed., 140; Sawyer v. State, 45 Ohio St. 343, 13 N.E. 84.)

D. C. McDougall, Attorney General, J. H. Peterson, Assistant Attorney General, and O. M. Van Duyn, Assistant Attorney General, for Respondents.

Election procedure or the results cannot be attacked in a collateral proceeding. The remedy provided by statute is exclusive. (State v. O'Brien, 35 Mont. 482, 90 P. 515; 23 Cyc. 101 (d); 15 Cyc. 394, 395; 10 Am. & Eng. Ency. 816; 19 Am. & Eng. Ency. 509; Allen v. Burrow, 69 Kan. 812, 77 P. 555; 2 Am. & Eng. Ann. Cas. 539, and notes; Doan v. Logan Co., 3 Idaho 38, 26 P. 167.)

A court of chancery has no power to restrain criminal proceedings, unless they are instituted by a party to a suit already pending before it, to try the same right that is in issue there. (Ex parte Sawyer, 124 U.S. 200, 8 S.Ct. 482, 31 L. ed. 402; Fitts v. McGhee, 172 U.S. 530, 19 S.Ct. 269, 43 L. ed. 535; Telegraph Co. v. Powers, 140 Ala. 220, 37 So. 195; 1 Am. & Eng. Ann. Cas. 119; Spelling on Injunctions, 2d ed., sec. 71; High on Injunctions, 4th ed., secs. 20, 68, 272, 1244; 22 Cyc. 903; Harding v. Commrs. Court, 27 Tex. Civ. App. 25, 65 S.W. 56; Norton v. Alexander, 28 Tex. Civ. App. 466, 67 S.W. 787.)

Exercise of police powers is not interfered with by injunction. (1 Spelling on Injunctions, sec. 628.)

As to the plaintiff's claim of equitable relief, on the ground of informalities in the election proceedings, the authorities above cited clearly show that he is not entitled to such relief, if the local option law is held constitutional. (State v. O'Brien, 35 Mont. 482, 90 P. 515.)

STEWART, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

STEWART, J.

On Aug. 25, 1909, a special election was held in Idaho county, under the act of Feb. 20, 1909 (Laws of 1909, p. 9), known as the local option statute. At the time such election was held, and on Nov. 23d thereafter, the appellant herein was engaged in the business of retailing intoxicating liquors in the town of Cottonwood in said county, under a license granted to him by the board of county commissioners of said Idaho county in July, 1909, said license to be in effect for a period of one year from said date. Subsequent to the holding of such election and prior to the commencement of this action, the respondent, J. M. Gilmore, prosecuting attorney of Idaho county, notified the plaintiff that by virtue of the result of such election and from and after Nov. 23, 1909, his license under which he was doing business in said county would be canceled and revoked; and that in the event the said plaintiff continued in said business of selling intoxicating liquors from and after Nov. 23, 1909, he would be prosecuted as a criminal and law-breaker.

This action was instituted by appellant, after the appellant had received such notice from the prosecuting attorney, to restrain the respondents from taking any steps, or in any way interfering with the plaintiff conducting his business at the town of Cottonwood in said county, under or by virtue of said license, and from making any order revoking or canceling the said license. The matter was heard by the judge of the district court in and for said county, whether a temporary injunction should issue as prayed for in the complaint. After hearing the judge made an order "and adjudged and this does order and adjudge that the application of the plaintiff for a temporary restraining order herein be and the same is hereby denied." From this order this appeal was taken.

Appellant presents two questions: First, is the act of Feb. 20, 1909, known as the local option statute, constitutional? Second, has such statute been adopted by the electors of Idaho county in the manner provided therein and therefore become a law in said county?

The first question, including objections made by appellant to the validity of several separate sections of the local option statute, has been answered by this court in the decision in the case of Gillesby v. The Board of Commissioners of Canyon County, ante, p. 586. As to the second question, counsel for appellant contends that inasmuch as the law has not been complied with in petitioning for the election, calling and giving notice of such election, and the holding of an election in certain precincts, that therefore the local option statute has not been adopted by the electors of Idaho county and has not become operative in such county; and by reason of which fact appellant's license is in full force and effect, and protects him in the sale and disposition of intoxicating liquors, and to carry out the threats and purposes of the prosecuting attorney of said county would be to deprive him of his legal rights and cause him to sustain irreparable injury to his business, and for which there is no adequate remedy at law.

Sec. 8 of the local option statute provides "If a majority of the votes cast at an election held under the provisions of ...

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3 cases
  • Garrett Transfer & Storage Company v. Pfost, 6031
    • United States
    • United States State Supreme Court of Idaho
    • November 3, 1933
    ...... remedy at law; where such defense is available injunctive. relief may not be granted. ( Nims v. Gilmore, 17. Idaho 609, 107 P. 79 (see cases therein cited). . . The. assaulted provisions of the motor vehicles registration ......
  • Hall v. Johnson, 6053
    • United States
    • United States State Supreme Court of Idaho
    • November 2, 1933
    ...... maintained to prevent a criminal prosecution, and we will. proceed on the theory that the case is within one of the. exceptions mentioned in Nims v. Gilmore, 17 Idaho. 609, 107 P. 79. . . Respondent. contends that a statute which requires a farm produce broker,. dealer or ......
  • Davies v. Board of Com'rs of Nez Perce County
    • United States
    • United States State Supreme Court of Idaho
    • November 2, 1914
    ...... "Courts. of equity have no inherent power to try contested. elections." (Toneray v. Budge, 14 Idaho 621, 95. P. 26; 15 Cyc. 397; Nims v. Gilmore, 17 Idaho 609,. 107 P. 79.). . . In this. case the petition shows that the board of canvassers has. performed the very act ......

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