State ex rel. Valley Distributors, Inc. v. Oakley

• Decision Date: 10 June 1969
• Docket Number: No. 12794,12794
• Parties: STATE ex rel. VALLEY DISTRIBUTORS, INC., a Corp., and Raymond Kohn v. The Honorable Harvey OAKLEY, Judge, etc., et al., Farris D. Sayer, etc., et al.
• Court: West Virginia Supreme Court

Page 532

168 S.E.2d 532

153 W.Va. 94

STATE ex rel. VALLEY DISTRIBUTORS, INC., a Corp., and Raymond Kohn v. The Honorable Harvey OAKLEY, Judge, etc., et al., Farris D Sayer, etc., et al.

No. 12794.

Supreme Court of Appeals of West Virginia.

Submitted April 22, 1969.

Decided June 10, 1969.

Syllabus by the Court

'If a charge is of a criminal nature, or an offense against the public, and does not touch the enjoyment of property, or health, it is not within the jurisdiction of a court of equity.' Syllabus, Point 5, State v. Ehrlick, 65 W.Va. 700 (64 S.E. 935, 23 L.R.A.,N.S., 691).

W. Bernard Smith, Grubb & Wilson, Amos C. Wilson, Logan, for relators.

Preiser, Greene & Hunt, L. Alvin Hunt, Charleston, for respondents.

BROWNING, Judge.

Valley Distributors, Inc., and Raymond Kohn, hereinafter sometimes referred to as petitioners, filed their petition invoking the original jurisdiction of this Court on December 16, 1968. The named respondents are the Honorable C. C. Chambers, Judge of the Seventh Judicial Circuit of West Virginia, the Circuit Court of the Seventh Judicial Circuit of West Virginia and Farris D. Sayer, David F. Sayer, Jr., Alex F. Sayer, II, d/b/a Sayer Brothers Department Store and Super S Discount, hereinafter referred to as 'Sayers'. The petition alleges that the Sayers filed a civil action, No. 3285, in the Circuit Court of Logan County in November, 1966, as shown by petitioner's exhibit 'A', seeking injunctive relief against the petitioners herein and others, and, on November 18, 1966, the Circuit Court of Logan County entered an order enjoining petitioners 'from continuing their present practice of keeping their place of business open on Sunday in Logan County, West Virginia, for the sale of any items except those specifically permitted by the provisions of Chapter 61, Article 10, Sections 25 and 26 of the Code of West Virginia and the defendants are further enjoined from the sale of any other items of merchandise except in strict conformity with the provisions of said chapter * * *' The petition then alleges that on or about November 26, 1968, respondents initiated a contempt proceeding before the Circuit Court of Logan County and on December 6, 1968, that court found the petitioners in contempt and imposed a fine of $250 upon each of the petitioners and sentenced petitioner Kohn to a term of thirty days in jail, the execution of which was stayed for a period of sixty days in order to permit the petitioners to appeal. Subsequently on or about December 10, petitioners were served with a notice to show cause whether they should not again be adjudged guilty of contempt. The petition then alleges that the injunction awarded in civil action No. 3285 and the subsequent contempt proceedings constituted a usurpation and abuse of power by the Circuit Court of Logan County and prays for a writ of prohibition prohibiting the Circuit Court of Logan County from enforcing such injunction or taking any other action with respect thereto.

This Court issued a rule to show cause why the writ should not be awarded as prayed for on December 16, 1968, returnable January 8, 1969, at 10:00 a.m. The case was continued from time to time and on motion of the petitioners the Honorable Harvey Oakley, newly elected Judge of the Seventh Judicial Circuit, was substituted as a respondent in place of the Honorable C. C. Chambers on February 11, 1969. Filed with the petition as exhibits are: the complaint in Civil Action No. 3285; the order of November 18, 1966, awarding the injunctive relief prayed for by such complaint; the petition for a citation of contempt filed November 26, 1968, and, the notice of December 10, 1968, requiring petitioners to show cause why they should not again be adjudged in contempt.

Exhibit 'A', the complaint, alleges that the Sayers as plaintiffs conduct certain retail businesses in the City of Logan and are business competitors of the petitioners who operate a similar business in Logan County but outside the corporate limits of the City of Logan; that the petitioners caused their place of business to be open for business on October 16, 23, 30 and November 6, 1966, all being the first day of the week commonly known and designated as Sunday, in violation of the laws of the State of West Virginia and particularly Chapter 61, Article 10, Sections 25, 26 and 27 of the Code of West Virginia; that the Sayers also opened for business on Sunday, October 16, but their store was immediately closed by city officials and the manager was arrested and fined; the Sunday openings of the petitioners have not been interfered with by county or state officials in Logan County; certain persons have at various times obtained warrants for the arrest of certain employees of the petitioners for violation of Chapter 61, Article 10, Sections 25 and 27 and hearings were held before a justice of the peace of Logan County who found all of the accused not guilty; the number of vehicles going to and from petitioners' place of business on Sunday increases traffic hazards which create and constitute a public nuisance; the zeal with which the city officials enforce Chapter 61, Article 10, Section 25 and failure of any enforcement on the part of county or state officials outside the corporate limits of the City of Logan denies to the plaintiffs the equal protection of the laws; the Sayers, being in a competitive business, are being irreparably damaged by the petitioners' Sunday operations; attempts by private individuals to have the law enforced by obtaining warrants would cause multiplicious litigation; and prays that petitioners be enjoined from any activity not specifically permitted by statute.

The respondents answered admitting the substantial averments of the petition and denying that the action of the Circuit Court of Logan County usurps any legislative power or exceeds the jurisdiction of such court to which petitioners demurred. Respondents also filed a motion to dismiss the rule to show cause on the grounds that: prohibition will not lie against the individual respondents; the petition and exhibits clearly show that the order complained of was entered on November 18, 1966, from which no appeal was taken and such order is now final and not subject to attack; various other orders also have been entered in the case from which no appeal was taken, all of which have become final and are not now subject to attack; the relief sought is barred by the doctrine of laches; petitioners have an adequate remedy at law by action against the respondents Sayers; and, petitioners are barred from maintaining this proceeding by their own misconduct and the doctrine of unclean hands. On April 22, 1969, the Honorable C. C. Chambers, who previously was replaced by Harvey Oakley as a party respondent, filed his separate answer in which he denies certain allegations of bias and prejudice against him made in the original petition but which were not incorporated in the amended petition substituting Oakley and attaches certain exhibits thereto. We have disregarded as being little more than frivolous the allegations of bias and prejudice against the presiding judge and consider his separate answer a complete refutation of the allegations of the original complaint.

There can be no question but what the Circuit Court of Logan County has jurisdiction by virtue of Article 8, Section 12, of the Constitution of this State of all suits and actions that may arise and specifically 'of all cases in equity.' Furthermore the injunction complained of having been issued on November 18, 1966, and no appeal having been granted or even sought in this Court is has long since become final unless the decree entered on that date was absolutely void, the time having passed for directly attacking the decree for errors, even gross errors. Thus petitioners in this Court must show that although the trial court had 'jurisdiction' it exceeded 'its legitimate powers' in the exercise thereof. Article 8, Section 3, of the Constitution of this State, in addition to the appellate jurisdiction therein granted this Court, further provides that 'It shall have original jurisdiction in cases of habeas corpus, mandamus, and prohibition.' The writers of the Constitution did not attempt to elaborate upon the powers of this Court in prohibition but left that duty and authority to the legislature. Prior to 1882 an examination of the statutes reveals that legislative authority of this Court in prohibition was not much, if any, greater than that of courts having such jurisdiction at the common law. There can be no doubt but what the scope of the writ of prohibition was enlarged by Acts of the Legislature, Regular Session, 1882, the language then adopted having not since been changed in any material manner. This is the language of Code, 53--1--1, as amended: 'The writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers.' In what may be considered a landmark decision following the 1882 amendment this Court held in Norfolk & W. Ry. Co. v. Pinnacle Coal Co., 44 W.Va. 574, 30 S.E. 196, 41 L.R.A. 414, that '(1) The writ is no longer a matter of sound discretion but a matter of right; (2) it lies in all proper cases, whether there is other remedy or not.' The sixth syllabus point states that in all cases of usurpation and abuse of power, even though the court has 'jurisdiction', prohibition 'now lies as a matter of right, and not as a matter of sound judicial discretion.' The dissenting opinion of President Judge Brannon is interesting indeed. He states, inter alia, 'I think this latter clause does not enlarge the scope of the writ, and is only declaratory of the common-law office of the writ.' He fervently warned of the danger that the new language of the statute might extend 'the writ to every case of...