State ex rel. Fry v. Superior Court of Lake Cnty.

Decision Date30 June 1933
Docket NumberNo. 26334.,26334.
Citation205 Ind. 355,186 N.E. 310
PartiesSTATE ex rel. FRY et al. v. SUPERIOR COURT OF LAKE COUNTY et al.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Original petition by the State, on the relation of Paul Fry, etc., and others, for a writ of prohibition prayed to be directed to the Superior Court of Lake County and others, restraining them from taking any further steps in a certain pending cause, and from enforcing a certain restraining order entered in said cause.

Temporary writ of prohibition previously issued made permanent in accordance with opinion.Philip Lutz, Jr., of Indianapolis, Edward Barce, of Fowler, and Herbert J. Patrick, of Indianapolis, for relators.

Lester Ottenheimer, of East Chicago, Crumpacker & Friedrich, of Hammond, and Patterson & Thiel, of Gary, for respondents.

FANSLER, Judge.

This is a petition for a writ of prohibition, filed as an original action in this court, asking that the respondents be restrained from taking any further steps and making any further order in cause No. 41540 in the superior court of Lake county at Hammond, and from enforcing a certain restraining order entered in said cause.

On the 16th day of May, 1933, John Tenkely filed a verified complaint against the relators in the court below, in which he alleged: That the Legislature in the session of 1933 passed an act entitled “An Act concerning alcoholic beverages, and declaring an emergency.” Acts 1933, p. 492, c. 80. That said act created the office of excise director of the state of Indiana, to which Paul Fry has been appointed. That said law authorized the Attorney General to maintain actions for injunctions in the name of the state concerning the subject-matter of the act. That the act in question is unconstitutional and void for various reasons set out. That for many years he has been the owner of a building known as Columbia Hall, located in East Chicago, Lake county, Ind. That he has built up a large patronage at said premises. “That said patrons would, with their families, congregate at said premises and eat and drink, and of the beverages which they would drink, one of which was beer. That in owning and operating said premises, he has engaged in the business of importing, retailing and wholesaling non-intoxicating alcoholic beverages. That in the conducting and operating of said premises, he has invested in the same many thousands of dollars. That to maintain and conduct the said business under the law as it is now written, he does not have the means wherewith to procure licenses to operate the same, which law this Petitioner maintains is invalid and that by reason of such invalid law, he is suffering a substantial injury by reason of the fact that he does not sell non-alcoholic beverages to his patrons, and that by reason of that fact, said patrons refuse to patronize said premises of this petitioner.” He alleges: That the defendants are threatening to arrest and prosecute him for violation of the act, and to collect license fees under the act. “That your petitioner in the conduct of his business proposes to import, retail and wholesale non-intoxicating malt and vinous beverages under the laws and Constitution of the United States.” That he is threatened with arrest “by reason of the fact that said purported law also infers and attempts to direct legal notice to this petitioner that he shall not carry on said trafficking in beer and alcoholic beverages under the penalty of the alleged law.” That he has no full and adequate remedy at law, and he prays that the defendants be enjoined and restrained from interfering with him in the operation of his business.

On the same day a temporary restraining order was issued by the respondents, restraining the defendants from in any way attempting to enforce the provisions of the act in question, and from arresting or attempting to arrest the plaintiff on the charge of violating the act, and from attempting to compel the plaintiff to comply with the act in regard to the payment of fees or licenses.

Relators seek a writ prohibiting the respondents from enforcing said restraining order or from making any further order, on the ground that there is no jurisdiction in a court of equity to enjoin criminal prosecutions or the enforcement of a criminal statute. A temporary writ was issued prohibiting the respondents from making any further orders, and citing respondents to appear and show cause why the writ should not be made permanent, and why they should not be prohibited from enforcing said order. Respondents filed what they denominated a demurrer to the petition.

It is said in State ex rel. Kensinger v. Cox, Judge of Vigo Superior Court, 193 Ind. 519, 141 N. E. 225, 227: “No means has been provided for making up issues and holding formal trials in the Supreme Court. *** In this court, an alternative writ should be framed commanding the trial court to do just what is believed to be its duty under the facts alleged, or to show cause why it does not do so, thus enabling the trial court to obey the command and end the matter, or to make a return of its reasons for not obeying.”

The respondents should have made a return showing any reason in fact or in law why the writ should not be obeyed. In this case the writ is based upon the verified complaint of the plaintiff below and the temporary restraining order issued thereon. It is clear that no controversy could arise concerning the facts. The only question involved is the legal one as to whether the court below had jurisdiction. The so-called demurrer and memoranda, and briefs in support thereof, deal with that question and we will treat them as a return.

The only questions presented are whether the respondents had jurisdiction to issue the restraining order under the facts alleged, and whether a court of equity being without jurisdiction of the subject-matter, this court will prevent it exercising jurisdiction by a writ of prohibition.

In this action we are not concerned with the constitutionality of the statute which is questioned by the complaint below, nor are we concerned with the sufficiency of the complaint to state a cause of action. If the court below has jurisdiction of the subject-matter, it has jurisdiction to determine the sufficiency of the complaint, and relators' remedy would be by appeal.

Writs of prohibition may issue out of this court to the circuit, superior, or criminal courts of the state to restrain and confine such courts to their respective lawful jurisdiction. Section 1244, Burns' 1926.

Respondents cite the case of State ex rel. v. Gleason, 187 Ind. 297, 119 N. E. 9, in support of the proposition that, since courts of equity have general jurisdiction to grant injunctions, this court will not issue its writ of prohibition where jurisdiction of the person is shown. But in the opinion in State ex rel. Coffin v. Superior Court of Marion County et al., 196 Ind. 614, 149 N. E. 174, this court explained the opinion in the Gleason Case as not being so broad as contended for in the light of the facts in that case, and laid down the rule, which is well supported by authority from other jurisdictions, that where a court of equity has no jurisdiction to issue injunctions and restraining orders in the particular class of cases, this court will intervene by writ of prohibition to prevent the exercise of jurisdiction in a case within that class. People ex rel. L'Abbe et al. v. District Court, 26 Colo. 386, 58 P. 604, 46 L. R. A. 850;State ex rel. Kenamore v. Wood et al., 155 Mo. 425, 56 S. W. 474, 48 L. R. A. 596; 50 C. J. 666.

Respondents cite the case of State ex rel. v. Perry Circuit Court (Ind. App.) 185 N. E. 510, on the proposition that the court below has jurisdiction to determine the sufficiency of the complaint, but in that case it was held that the court had jurisdiction of the subject-matter, which is the very question involved here.

In the long recognized authority, High on Injunctions (4th Ed.) § 68, it is said: “Since courts of equity deal only with civil and property rights, they will not interfere by injunction with criminal proceedings, having no jurisdiction or power to afford relief in such cases. Jurisdiction over such actions is conferredupon courts especially created to hear them and, with few exceptions, it is beyond the power of equity to control or in any manner interfere with such proceedings by injunction. *** So equity will not interfere by injunction to restrain municipal officers from the prosecution of suits for the violation of city ordinances, such proceedings being of a quasi criminal nature, since equity will not interfere with the execution of the criminal law, whether pertaining to the state at large, or to municipalities, which are agents in the administration of civil government. *** If, however, the act concerning which an arrest or criminal prosecution is threatened affects civil property and its enjoyment, in protecting the property right, equity may properly enjoin the criminal prosecution. But in such case its interference is founded solely upon the ground of injury to property and the necessity of preserving property rights. And where such rights are not clearly involved, the relief will be denied.”

The text is well supported by authority, among which are: In re Sawyer, 124 U. S. 200, 8 S. Ct. 482, 31 L. Ed. 402;Davis & Farnum Mfg. Co. v. Los Angeles, 189 U. S. 207, 23 S. Ct. 498, 47 L. Ed. 778; State ex rel. Kenamore v. Wood et al., supra.

The language of some of the decisions has led text-writers to state the rule to be that equity has no jurisdiction to enjoin criminal prosecutions or the operation of criminal statutes except in certain cases, but we believe the true rule to be that equity has no jurisdiction in such matters in any case. It has, however, jurisdiction to protect property rights by injunction where the petitioner has no adequate remedy at law, and where the injunction for the protection of property rights incidentally involves restraining and...

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