Old Dominion Telegraph Co. v. Powers

• Decision Date: 19 May 1904
• Citation: 37 So. 195,140 Ala. 220
• Parties: OLD DOMINION TELEGRAPH CO. v. POWERS, SHERIFF, ET AL.
• Court: Alabama Supreme Court

37 So. 195

140 Ala. 220

OLD DOMINION TELEGRAPH CO. v. POWERS, SHERIFF, ET AL.

Supreme Court of Alabama

May 19, 1904

Appeal from Chancery Court, Mobile County; Thos. H. Smith Chancellor.

Suit by the Old Dominion Telegraph Company against John F. Powers sheriff, and others. Bill dismissed, and complainant appeals and moves for mandamus to punish defendants for contempt. Judgment affirmed. Mandamus denied.

It was averred in the bill that the complainant was a telegraph company organized under the laws of the state of Virginia and had complied with the constitutional and statutory provisions authorizing it to do business in the city of Mobile; that it had established an office in the city of Mobile, and was engaged in a general telegraph business; that it had paid a license to the city of Mobile for the privilege of conducting its business in said city; that its business is necessarily conducted by its agents, and that in Mobile its business was conducted by persons in its service, and regularly in its employ for that purpose. It was then averred that the several agents of the complainant who were employed by it to conduct its business in the city of Mobile were, on a designated day prior to the filing of the present bill, arrested under a criminal prosecution charging them with the violation of section 4810 of the Criminal Code of 1896, which prohibited bookmaking or pool selling on horse racing and other forms of gambling, and that said persons were being prosecuted under such charge; that prior to the filing of the present bill the complainants had obtained an injunction against the mayor and general council of the city of Mobile restraining it and its officers and agents from prosecuting the agents of the complainant for conducting its business in the city of Mobile; that, notwithstanding the writ of injunction was so issued, some of the respondents were proceeding to institute proceedings under the statutes of the state against pool selling and bookmaking against the agents of the complainant, and had announced their intention to institute criminal prosecutions against the servants and agents of the complainant, charging them with violation of the statute against pool selling and bookmaking on horse racing. The complainant then averred that continued and multiplied and threatened prosecutions are instituted for the purpose of and will vex, harass, and annoy the complainant in the exercise of its legitimate business, and will result in breaking up its business; that the complainant has no adequate remedy at law, for the reason that it would be impossible to compensate the complainant by moneyed consideration for the damages suffered and sustained by reason of said continued and threatened prosecutions; that complainant's injury would, therefore, be irreparable; that the complainant is engaged in interstate commerce by the acts for which its agents are threatened to be prosecuted and arrested, and that by receiving and sending telegrams, as complained of by respondents, it is in the discharge of its lawful business; that the complainant is a citizen of another state, and is entitled to the protection of the law of this state; that, unless restrained by writ of injunction, the defendants would institute a multiplicity of suits and prosecutions, and that the complainant will be irreparably damaged. The prayer of the bill was that an injunction be issued restraining the respondents from instituting prosecutions against the complainant's agents, and from causing their arrest as complained of in said bill, and that upon the final hearing said injunction be made perpetual. Upon the bill being submitted to the judge of the Tenth judicial circuit, there was a temporary injunction ordered to be issued upon the complainant giving the bond as required, and upon said bond being given the writ of injunction was issued, and registered in the chancery court of Mobile. There was a motion made to dismiss the bill for the want of equity. There was also a motion made to dissolve the injunction for the want of equity in the bill. Before the cause was submitted upon these motions, the complainant in said bill filed a petition addressed to the chancellor, in which he set up the fact that some of the respondents in said suit had, notwithstanding the issuance of the injunction, instituted prosecutions against the complainant's agents, and had caused the arrest of said agents, and had thereby violated said writ of injunction; and the complainant, as said petitioner, asked that said named respondents be attached for contempt of the orders of said chancery court, and that the said parties be adjudged guilty of contempt of said court. There was a rule nisi issued, and in answer thereto respondents against whom the contempt proceedings were instituted answered by setting up the fact that the court of chancery had no jurisdiction of the cause, that said bill was without equity, and that, therefore, the injunction was void, and that by performing the acts set forth in the petition said respondents were not guilty of contempt. The cause was submitted upon the motion to dismiss the bill for the want of equity, upon the motion to dissolve the injunction, and upon the motion to commit certain of the respondents for contempt for violation of the injunction which had been issued. The chancellor rendered a decree granting the motion to dismiss the bill for the want of equity, and the motion to dissolve the injunction, and denied the motion to commit the respondents for a contempt of court by violation of the writ of injunction. From this decree the complainant appeals, and assigns the rendition thereof as error.

McAlpine & Robinson and Powell & Blackburn, for appellant.

B. B. Boone, for appellees.

DOWDELL J.

The bill in this case is filed against state and municipal officers. Its sole purpose is to enjoin criminal prosecutions instituted...