Speyer v. School Dist. No. 1, City and County of Denver

• Decision Date: 28 November 1927
• Docket Number: 11754.
• Citation: 82 Colo. 534,261 P. 859
• Parties: SPEYER et al. v. SCHOOL DIST. NO. 1, CITY AND COUNTY OF DENVER et al.
• Court: Colorado Supreme Court

261 P. 859

82 Colo. 534

SPEYER et al. v. SCHOOL DIST. NO. 1, CITY AND COUNTY OF DENVER et al.

No. 11754.

Supreme Court of Colorado

November 28, 1927

Department 1.

Error to District Court, City and County of Denver; Charles C Sackmann, Judge.

Suit by Herman Speyer and others on behalf of themselves and all others similarly situated against School District No. 1, City and County of Denver, and others. Judgment for defendants and plaintiffs bring error.

Reversed with directions.

Victor Arthur Miller and Mandell Levy, both of Denver, for plaintiffs in error.

Cass E Herrington, F. W. Sanborn, Herbert M. Munroe, and Elmer D. Gwin, all of Denver, for defendants in error.

DENISON, J.

Speyer et al., for themselves and others similarly situated, brought suit against the Denver school district and certain of its officers for an injunction and damages; a demurrer to their complaint was sustained. They elected to stand, and come here on error.

The damurrer was on two grounds, misjoinder of plaintiffs and insufficient facts.

The complaint alleged that plaintiffs conducted separate school supply stores in the vicinity of various public schools in the district, that the district and its officers, the other defendants, had promulgated and were enforcing a rule that all pupils except those whose parents otherwise preferred should eat their noon lunches in the school buildings, to the ruin of the several business enterprises of the plaintiffs.

The arguments upon the first ground are: (1) That since the shops of the plaintiffs are separate and several, they have no common title or interest which is injured by defendants' conduct and so have no common equity; (2) that the business of each plaintiff is the 'subject' of his particular action, and hence they cannot be joined under sections 10 and 12 of the Code; and (3) that they are asking joint damages when it is obvious that only several damages can be proved.

Upon the first point the plaintiffs have a common equity in that the injunction in favor of one would accomplish the purpose of all. The common analogue is the suit to enjoin a nuisance; one or more injured by its maintenance may sue for all so injured. Cadigan v. Brown, 120 Mass. 493; Barnes v. Racine, 4 Wis. 454.

As to the second point counsel is mistaken in supposing that it is the property or business of each plaintiff that is the subject of the action. Just as in case of a nuisance it is not the injured property of the plaintiffs that is the subject, but the right to be protected from the alleged nuisance. This is the sense in which 'subject' is used in Cadigan v. Brown, supra. See, also, Churchill v. Lauer, 84 Cal. 233, 24 P. 107; Pettibone v. Hamilton, 40 Wis. 402, 417. So here it is not the plaintiffs' injured business but their common right of protection from inequitable conduct which is the 'subject of the action,' and the relief demanded is the injunction which protects that right.

As to the third point the demand for relief does not determine the relief that may be granted, and, if the complaint states any ground for any kind of joint relief, the murrer cannot be sustained for misjoinder of plaintiffs A demand for legal relief does not destroy a complaint good in equity. Mordecai v. Seignious, 53 S.C. 95, 30 S.E. 717; Canty v. Latterner, 31 Minn. 239, 17 N.W. 385.

Does the complaint state a cause of action? It seems clear that it does. The allegations are that the 'defendants and each of them maliciously, unlawfully, and without just cause and with the express intention of destroying then and there the businesses owned and operated by each of the said plaintiffs, and with no other purpose in view, unlawfully conspired together and did enter upon a course of action which was put into effect and enforced by the said defendants, to the end that a rule was passed and promulgated, * * *' as follows:

'Pupils in senior high schools must lunch at the school building, except that, on a written request from parents on a form supplied by the schools, a pupil may be permitted to lunch at home or at some other place designated by the parents. Such a permit may be revoked by the principal, if, while off the ground during the lunch period, a pupil is guilty of improper conduct.'

And in furtherance of their scheme to destory said plaintiffs' respective businesses all students were forbidden from 'dealing or trading with the plaintiffs on penalty' of expulsion, and defendants persuaded parents to withdraw permission to trade with plaintiffs, all to the ruin of said businesses and property, and that said rule was to force business into cafeterias owned, controlled, and operated by said defendants and others under their supervision from which they derive profits.

The argument of defendants in support of their demurrer, reduced to its lowest terms, is that no act, otherwise lawful, is made unlawful because done with a bad motive; that the rule in question is lawful; that nothing is alleged against it but motive and so it cannot be enjoined.

The flaw in this reasoning is in the major premise. It is not...