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

• Decision Date: 30 June 1933
• Docket Number: 26,334
• Parties: State ex rel. Fry v. Superior Court of Lake County et al
• Court: Indiana Supreme Court

186 N.E. 310

205 Ind. 355

State ex rel. Fry v. Superior Court of Lake County et al

No. 26,334

Supreme Court of Indiana

June 30, 1933

1. PROHIBITION---Pleading---Return to Alternative Writ.---On alternative writ of prohibition directed to superior court respondent should make return showing any reason in fact or in law why it should not be obeyed. p. 359.

2. PROHIBITION---Pleading---Demurrer Treated as Return.---In original proceeding for writ of prohibition, respondent's demurrer to the complaint which, with the memoranda, raised legal question whether lower court had jurisdiction, was treated as a return to the writ. p. 359.

3. PROHIBITION---Scope of Remedy.---Supreme Court may issue writs of prohibition to confine the circuit, superior and criminal courts of the state to their respective lawful jurisdictions. p. 360.

4. PROHIBITION---Injunctions---Jurisdiction of Court of Equity.---Where court of equity is without jurisdiction to issue injunction and restraining order in a particular class of cases, Supreme Court will interfere by writ of prohibition to prevent exercise of jurisdiction in a case within that class. p. 360.

5. INJUNCTION---Jurisdiction---To Enjoin Criminal Prosecutions.---Courts of equity do not have jurisdiction to enjoin criminal prosecutions or operation of criminal statutes in any case. p. 362.

6. INJUNCTION---Jurisdiction---Criminal Prosecutions Incidental.---Courts of equity have jurisdiction to protect property rights where petitioner has no adequate remedy at law, even though the writ may incidentally interfere with criminal prosecutions or the operation of criminal statutes p. 362.

7. INJUNCTION---Relief Interfering with Criminal Prosecutions---Necessary Allegations.---Petitioner for injunctive relief which will incidentally restrain criminal prosecutions must clearly show that such relief is merely incidental to the protection of a property right. p. 362.

8. INTOXICATING LIQUORS---License Fees---Personal Charge Only.---License fees imposed by act controlling alcoholic beverages (Acts 1933, ch. 80, p. 492) are purely a personal charge, and failure to pay them can form no basis, either in law or in equity, of a proceeding against the licensee's property or business. p. 363.

9. INTOXICATING LIQUORS---License Fees---Failure to Pay---Remedy.---In case of failure of person selling alcoholic beverages without payment of license fees imposed by Acts 1933, ch. 80, p. 492, state's only remedy is by criminal prosecution. p. 363.

10. INJUNCTION---Actions at Law by State---Jurisdiction.---Courts of equity have no jurisdiction to enjoin actions at law by the state. p. 363.

11. INJUNCTION---Actions of Officers---Under Color of Void Statute.---Courts of equity have jurisdiction to enjoin officers who, under color of authority of unconstitutional or void legislation, are guilty of personal trespasses, wrongs infringements or encroachments upon the property of an individual. p. 363.

12. INJUNCTION---Actions of Officers---Invasion of Property Rights---Criminal Proceedings.---A criminal action under an alleged invalid statute is not of itself such an invasion of property rights as will authorize court of equity to issue injunction, notwithstanding the necessity of a defense and threat of frequent indictments. p. 363.

13. EVIDENCE---Judicial Notice---Constitution and Statutes.---Court takes judicial notice of the Constitution and statutes of state and United States. p. 368.

14. INJUNCTION---To Protect Property Rights---Complaint---Must Show Vested Right.---A complaint for injunction to protect business must show an established business, mere willingness to engage therein being insufficient. p. 370.

15. INJUNCTION---Protection of Proposed Business---From Arrest and Prosecution.---Complaint to enjoin officers from arresting and prosecuting plaintiff for failure to comply with regulatory provisions of alcoholic beverage act (Acts 1933, ch. 80, p. 492) in proposed business of dealing in such beverages, held not to disclose an established business in which plaintiff had a vested property right and, therefore, not authorizing interference with criminal prosecutions by injunction. p. 370.

Original proceedings for a writ of prohibition by State of Indiana, on a relation of Paul Fry, as Excise Director, and others against the Superior Court of Lake County and others.

Alternative writ made permanent.

Philip Lutz, Jr., Attorney-General, Edward Barce, Assistant Attorney-General, and Herbert J. Patrick, Deputy Attorney-General, for the relators.

Lester Otterheimer, Patterson & Thiel and Crumpacker & Frederick, for respondents.

OPINION

Fansler, J.

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 orders in Cause No. 41,540 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); that said act created the office of Excise Director of the state of Indiana, to which Paul Fry has been appointed; that said law authorizes 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, Indiana; 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 trafficing 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 (1923), 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...