State ex rel Ladd v. The District Court in and for Cass County
| Decision Date | 20 March 1908 |
| Citation | 115 N.W. 675,17 N.D. 285 |
| Court | North Dakota Supreme Court |
Application by the state, on the relation of E. F. Ladd, for a writ of prohibition to the district court of Cass county and Charles A. Pollock, Judge.
Temporary writ vacated, and application denied.
Temporary writ vacated, and the relator's application denied.
Barnett & Richardson, Engerud, Holt & Frame, and T. F. McCue Attorney General, for the relator.
Food commissioner's error in deciding upon a prohibited product, or in his conclusions and published statements; or that his prosecution may fail, and a party be without remedy does not warrant an injunction. Arbuckle v. Blackburn, 113 F. 617; Pleasants v. Smith, 43 So. 467; Davis v. Society, etc., 75 N.Y. 362.
If his statements are incorrect, the publication is libel. Arbuckle v. Blackburn, supra; Francis v. Flinn, 118 U.S. 385, 30 L.Ed. 165; Ferrell v. Warren, 3 Wend. 253; Burns v. Erben, 40 N.Y. 463; Butolph v. Blush, 5 Lans. 84.
The guilt or innocence of the maker of a prohibited article cannot be tried out in equity. Pleasants v. Smith, supra; Stephens v. McAid, 98 N.Y.S. 553; Gramer v. Truett, 79 S.W. 4; Davis v. Society Prevention Cruelty, 75 N.Y. 363; Delaney v. Flood, 183 N.Y. 323; Power v. Village of Desplaines, 13 N.E. 819; Moses v. Mayor, 5 Ala. 209; Suess v. Noble, 31 F. 855; Hemsley v. Myers, 45 F. 283; Brown v. Mayor, 37 So. 173.
Upon application for an injunction constitutionality of law not determined; such determination is for the main action. Wallock v. Society, etc., 67 N.Y. 23; Paulk v. Mayor, 30 S.E. 417; Paul v. City, 47 S.E. 793; Levy v. City, 27 La.Ann. 620; West v. N.Y. 10 Paige, 539, 27 Cent. Dig. Injunction, section 132.
Prosecution criminally for same matter will not be enjoined. Suess v. Noble, supra. Moses v. Taylor, 52 Ala. 198; Stuart v. Supervisors, 83 Ill. 341; Joseph v. Burk, 46 Ind. 59; Gault v. Walles, 53 Ga. 675.
Writ of prohibition issues to an inferior court that has exceeded its jurisdiction, or has assumed to proceed in a case of which it has no cognizance. High on Ex Rem, section 765, 767, 769, 772; Ex Parte Smith, 23 Ala. 94; Quimbo Appo. v. People, 20 N.Y. 531; Havemeyer v. Superior Court, 24 P. 121.
Legislature may prohibit manufacture and sale of foods although not injurious to health. Palmer v. State, 48 Am. Rep. 429; Shivers v. Newton, 45 N.J.L. 469; State v. Smyth, 51 Am. Rep. 344; Cook v. State, 20 So. 360; Com. v. Tobias, 6 N.E. 217; Weller v. State, 40 N.E. 1001; State v. Dreher, 44 N.E. 510. People v. Girard, 39 N.E. 823; People v. Cipperly, 4 N.E. 107.
May establish a standard of purity of foods, although they are harmless. State v. Crescent Cre. Co. 86 N.W. 107; Butler v. Chambers, 30 N.W. 308; State v. Smyth, 51 Am. Rep. 344; State v. Campbell, 13 A. 585; People v. Arensberg, 11 N.E. 277; People v. Marx, 2 N.E. 29; Powell v. Penn. 127 U.S. 618; State v. Tetu, 107 N.W. 953.
Ball, Watson, Young & Hardy, for defendant.
The writ of prohibition issues only in cases affecting the state's sovereignty, its franchises, or prerogatives and the liberties of the people. State v. Nelson Co., 1 N.D. 88, 45 N.W. 33.
It is not a writ of right, its issuance is discretionary; lack or excess of jurisdiction in the lower court, is not alone sufficient, but it must appear that applicant has no adequate remedy in the ordinary course of law by appeal or certiorari. Murphy v. Supreme Court, 24 P. 310; People v. Dist. Court, 19 P. 541; State v. District Court, 2 N.W. 698; Stoddard v. Supreme Court, 40 P. 491; Mustin v. Sloan, 11 S.W. 558; State v. Jones, 27 P. 452; Powelson v. Lockwood, 23 P. 143; Strouse v. Police Court, 24 P. 747; Levy v. Wilson, 10 P. 272; State v. Rightor, 5 So. 102; In re Fassett, 142 U.S. 479; State v. Whitaker, 19 S.E. 376.
Without an application to the trial court and an adverse ruling upon the jurisdiction, or excess of jurisdiction, writ of prohibition will not issue. State v. Attorney General, 39 S.W. 276; Southern Pacific Railroad Co. v. Court, 59 Cal. 471; Baughman v. Supreme Court, 72 Cal. 572; People v. Judge, 3 N.W. 851, 913.
Equity will enjoin public officers, proceeding under a claim of right, and about to impair property rights or cause multiplicity of suits. Smith v. Bung, 15 Ill. 400; M. & H. Ry. Co. v. Archer, 6 Paige, 262; Belknap v. Belknap, 2 Johns C. R. 463; Schuster v. Board of Health, 49 Barb. 450; Jewett Bros. v. Smail, 105 N.W. 738; Sweet v. Holbert, 51 Barb. 312; Rogers v. Board of Health, 31 Barb. 447; School of Magnetic Healing v. McAnnulty, 187 U.S. 94; Mutual Life Ins. Co. v. Boyd, 82 F. 705; Glover v. Board of Flour Inspection, 48 F. 348; McChord v. Lanville, 183 U.S. 483; Smyth v. Ames, 169 U.S. 466; Touchman v. Welch, 42 F. 548; Western Union Tel. Co. v. Wyatt, 98 F. 335; Felts v. McGehue, 172 U.S. 516; Pratt Food Co. v. Bird, 112 N.W. 701; Ex Parte Dietrich, 84 P. 770.
Equity may, in a proper case, restrain criminal proceedings. Manhattan I. W. Co. v. French, 12 Abb. N. C. 446; Schandler B. Co. v. Welch Co. 42 F. 561; Platte & D. & G. v. Lee, 29 P. 1036; Hall v. Schultz, 31 How. Pr. 331; Glover v. Board, 48 F. 348; Spink v. Francis, 19 F. 670; Wadley v. Bount, 65 F. 667; Tuchman v. Welch, 42 F. 548.
The state cannot prohibit, but may regulate the sale of wholesome food to prevent fraud. Schallenberger v. Pa. 171 U.S. 1; Collins v. New Hampshire, 171 U.S. 30; Dorsey v. Texas, 40 L.R.A. 201; Helena v. Dayer, 39 L.R.A. 266; Chicago v. Netcher, 48 L.R.A. 261; Frost v. Chicago, 49 L.R.A. 657; In re Jacobs, 98 N.Y. 98.
On the 3d day of October, 1907, certain manufacturers of flour whose mills are located within this state commenced an action against Pure Food Commissioner E. F. Ladd in the district court of Cass county for the purpose of enjoining him from issuing or causing to be issued further circulars or bulletins condemning the flours manufactured by the plaintiffs in that action in the manner described in their complaint, and particularly the flour in the manufacture of which the process known as the "Alsop process" was employed, and from certifying to the county auditors the flours so manufactured by them as adulterated, and from seizing or causing to be seized such flours, and from instituting or causing to be instituted prosecutions against the plaintiffs therein under chapter 195, p. 315, Laws 1907. The complaint in that action among other things alleged that the plaintiffs therein were the owners of and engaged in operating flouring mills in various parts of the state, having a total capacity of 5,050 barrels of flour per day, and that they had for a long time prior to the commencement of such action been engaged in such business; that for the purpose of conducting such business, they had installed expensive plants aggregating in value many hundreds of thousands of dollars, and that they manufactured each year more than 50 per cent. of all the flour manufactured and used in the state; that complaint further alleged that the growing of wheat was the principal agricultural industry, and the milling of the same the principal manufacturing industry, of the state, and that the state produced more wheat and more flour than could be consumed by its people. That the wheat producers and millers must and do depend upon foreign markets for the sale of their product; that by reason of this fact they were forced into competition with the large mills of other states, and, unless able to manufacture flour under the same conditions as the mills of other states, they would be rendered unable to sell in competition with them; that within the past few years there had been adopted by the millers of the United States, Europe and elsewhere a process for aging and conditioning flour at the time of its manufacture known as the "Alsop Process;" that such process had received general recognition and approval in all of the several states of the Union and in foreign countries, and was in general use by commercial mills throughout the United States, and by said plaintiffs in their respective mills, as well as by other millers of the state; that said process was used in the manufacture of about 80 per cent of the flour manufactured within the state, and had been adopted by plaintiffs after thorough investigation, from which it was found that it did not render the flour so manufactured harmful, but, on the contrary, that it improved it; and that as a result of such investigation and the information thereby obtained the plaintiffs had installed said process within their mills at a very great expense. The complaint contained a description of the process and an allegation that nothing was used therein other than a flaming discharge of electricity and air, which matured and conditioned and slightly whitened in color and rendered more marketable the flour so manufactured, and made it more acceptable to the consumer, improved its bread-making qualities, and that no harmful ingredients were added, and no necessary constituent in whole or in part extracted, and that the flour so manufactured under said process did not deceive or tend to deceive the purchasing public. Such complaint also shows plaintiff's claims as to the benefits derived by them and the public from the use of such process, particularly by reason of the saving made in storage and the ability of the millers to immediately market their product, saving to them and to the public the expense of storage during the period otherwise required for aging and conditioning the flour manufactured by them. The act of the legislature commonly designated as the ...
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