Shuman v. Gilbert

• Decision Date: 08 January 1918
• Citation: 229 Mass. 225
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: ABRAHAM SHUMAN & others v. GEORGE W. GILBERT.

229 Mass. 225

ABRAHAM SHUMAN & others v. GEORGE W. GILBERT.

Supreme Judicial Court of Massachusetts, Suffolk.

January 8, 1918

November 9, 1917.

Present: RUGG, C.

J., BRALEY, CROSBY PIERCE, & CARROLL, JJ.

Equity Pleading and Practice, Demurrer, Misjoinder. Equity Jurisdiction, To enjoin criminal prosecution. Hawkers and Pedlers.

In a suit in equity by six plaintiffs, each engaged in a different business, to enjoin an alleged anticipated unlawful interference with their business, the defendant demurred, assigning various causes of demurrer but not assigning as a cause of demurrer the improper joinder of the plaintiffs in a single suit, and the question of misjoinder of the plaintiffs was treated by this court as not open upon the demurrer.

A suit in equity cannot be maintained by one engaged in business to enjoin the chief of police of a city from committing an alleged apprehended unlawful interference with the plaintiff's business by instituting a complaint against the plaintiff for an alleged violation of R.L.c. 65,

Section 13, as amended by St. 1916, c. 242, Section 1, in regard to hawkers and pedlers by exhibiting samples of his goods in a room hired by him in a hotel in that city without first obtaining a license.

The fact, that a person engaged in business may be injured in respect to his business by prosecution for an alleged crime, in conducting his business in an unlawful manner, is not a sufficient ground for a suit in equity by that person asking the court to ascertain in advance whether the business as conducted by him is in violation of a penal statute.

In the case in which the points above stated were decided, it was said that whether the plaintiffs, or any of them, were guilty of any infraction of the criminal law was a question to be tried in a criminal court and not in this suit in equity.

BILL IN EQUITY filed in the Superior Court on April 16, 1917, and afterwards amended, by the members of a business firm and five business corporations against the chief of police of the city of Northampton, to enjoin the defendant from unlawfully interfering with the plaintiffs' business by arresting or prosecuting them for exhibiting and selling by sample for future delivery goods, wares and merchandise in the city of Northampton without a license in alleged violation of R.L.c. 65, Section 13, as amended by St. 1916, c. 242, Section 1.

The defendant's answer contained a demurrer as described in the opinion. The case was heard by Jenney, J., upon the demurrer. He made an order that the bill be dismissed without costs. Later by order of the judge a final decree was entered that the demurrer to the bill as amended be sustained and that the bill be dismissed. The plaintiffs appealed.

H. F. Wood, (A.

Williams with him,) for the plaintiffs.

J. C. Hammond, in the absence at the front in France of his son Captain T. J Hammond, for the defendant.

RUGG, C.J. This is a suit in equity in which six plaintiffs join in alleging that they are merchants having permanent places of business five of them in Boston and one in Springfield, and that occasionally at various times during the year they hire rooms in a hotel in Northampton and there display goods and merchandise as samples, making no sales from that stock but taking orders at retail for future delivery from their places of business in Boston or Springfield. The defendant is the chief of police of Northampton, who asserts that the plaintiffs have no right to conduct business in this manner without licenses, and threatens to institute complaints against them for violation of R.L.c. 65, Section 13, as amended by St. 1916, c. 242, Section 1, whereby hawking and peddling and the selling by itinerant vendors in general, with some exceptions, is prohibited. The prayers of the bill are that the defendant be forever enjoined from arresting their agents or otherwise interfering with the conduct of their business, and that the question whether they are violating the statute be determined. The defendant demurred upon several grounds. As he has not raised the point that the plaintiffs cannot join in such a suit, that is passed by. Stevens v. Rockport Granite Co. 216 Mass. 486 , 493.

The plaintiffs do not allege nor argue that the statute under which the defendant proposes to prosecute them is unconstitutional on any ground, nor that its enforcement as to them would be an unlawful interference with interstate commerce. Their simple contention is that their conduct as set forth in their bill is not a violation of the statute rightly construed.

It is the general rule that the prosecution and punishment of crimes will not be restrained by a court of chancery. But there is an exception to this comprehensive statement. Jurisdiction in equity to restrain the institution of prosecutions under unconstitutional or void statutes or local ordinances has been upheld by this court when property rights would be injured irreparably, and when other elements necessary to support cognizance by equity are present. Greene v. Mayor of Fitchburg, 219 Mass. 121, 127. Moneyweight Scale Co. v. McBride, 199 Mass. 503 , 505. The statement of the law in England has been made rather broadly that there is no jurisdiction in equity (at all events since the abolition of the court of the Star Chamber, which exercised a jurisdiction of so called criminal equity) to enjoin prosecution for crime. Saull v. Browne, L. R. 10 Ch. 64. Kerr v. Preston Corp. 6 Ch. D. 463, 466. See also Grand Junction Waterworks Co. v. Hampton Urban Council, [1898] 2 Ch. 331, 341; Merrick v. Liverpool Corp. [1910] 2 Ch. 449, 460-462. But there seems to be a caution about saying that circumstances may not arise authorizing a close approach to such jurisdiction. Lord Aukland v. Westminster Local Board of Works, L. R. 7 Ch. 597. Burghes v. Attorney General, [1911] 2 Ch. 139, 156-157. It was said in Truax v. Raich, 239 U.S. 33, at pages 37, 38: "It is also settled that while a court of equity, generally speaking, has `no jurisdiction over the prosecution, the punishment or the pardon of crimes or misdemeanors' (In re Sawyer, 124 U.S. 200, 210) a distinction obtains, and equitable jurisdiction exists to restrain criminal prosecutions under unconstitutional enactments, when the prevention of such prosecutions is essential to the safeguarding of rights of property." Philadelphia Co. v. Stimson, 223 U.S. 605, 621. That is the law of this Commonwealth. Doubtless that principle is generally recognized by the courts of this country. It has been applied to the institution of proceedings under statutes and ordinances, the enforcement of which would result in unlawful deprivation of the right to labor, Truax v. Raich, 239 U.S. 33, the illegal interference with the right to transact interstate commerce free from burdensome state restrictions, Western Union Telegraph Co. v. Andrews, 216 U.S. 165, Lee's Summit v. Jewel

Tea Co. 133 C. C. A. 637; 217 F. 965, Herndon v. Chicago, Rock Island & Pacific Railway, 218 U.S. 135, Jewel Tea Co. v. Carthage, 257 Mo. 383, 391, the confiscation of property or property rights, Dobbins v. Los Angeles, 195 U.S. 223, 241, Home Telephone & Telegraph Co. v. Los Angeles, 227 U.S. 278, 293, the denial of due process of law, Hopkins v. Clemson Agricultural College of South Carolina, 221 U.S. 636, and the denial of the equal protection of the laws, Ex parte Young, 209 U.S. 123, 146, 147.

The jurisdiction in chancery thus recognized and exercised rests upon the fundamental and well established equitable doctrine that private personal and property rights will be protected by injunction from threatened irreparable unlawful injury. The injunction against the institution of criminal proceedings is simply incidental to that main ground of equitable jurisdiction. Where the facts are such as to call for the exercise of the powers of a court of chancery according to its established principles, the mere fact that, in order to grant the remedy afforded by equity, it may be necessary as a subsidiary step to enjoin the institution of criminal proceeding or even the commission of a crime, is no bar to the jurisdiction of equity. That this is the underlying principle is manifest from an examination not only of the cases above cited but of most other cases where the injunction has been granted or jurisdiction assumed. ^[*] This is but another way of stating the principle...