State v. District Court of Eighteenth Judicial Dist. in and for Hill County

• Decision Date: 08 November 1926
• Docket Number: 6002.
• Citation: 251 P. 137,77 Mont. 361
• Parties: STATE ex rel. v. DISTRICT COURT OF EIGHTEENTH JUDICIAL DIST. IN AND FOR HILL COUNTY et al. STEWART
• Court: Montana Supreme Court

251 P. 137

77 Mont. 361

STATE ex rel. STEWART v. DISTRICT COURT OF EIGHTEENTH JUDICIAL DIST. IN AND FOR HILL COUNTY et al.

No. 6002.

Supreme Court of Montana

November 8, 1926

Application by the State, on the relation of Sims Stewart, for a writ of prohibition to the District Court of the Eighteenth Judicial District in and for the County of Hill, and Chas. A. Rose Judge thereof. Issuance of permanent writ of prohibition ordered.

W. F O'Leary, of Great Falls, and C. A. Spaulding, of Helena for relator.

L. A. Foot, Atty. Gen., I. W. Choate, Asst. Atty. Gen., and A. F. Lamey, Co. Atty., of Havre, for respondents.

CALLAWAY C.J.

Sims Stewart was convicted of the offenses of unlawfully possessing intoxicating liquor, and of unlawfully selling intoxicating liquor, in the district court of Hill county upon the 28th day of September, 1923. Judgment on the conviction was made and entered against him on October 2, 1923. Eight days later the court issued an injunction order in the cause. addressed to the defendant, giving him notice that, whereas he had been convicted upon September 28, 1923, of the offenses of unlawfully possessing intoxicating liquors, and unlawfully selling intoxicating liquors, upon which judgment had been pronounced against him, "now, therefore, you are hereby perpetually enjoined and ordered to refrain from hereafter violating any of the provisions of the laws of the state of Montana relating to the manufacture, sale and use of intoxicating liquors, and from violating any of the provisions of chapter 29, part 1, of the Penal Code of 1921, of the state of Montana, and each and every amendment thereto, including chapter 116 of the Acts of the Eighteenth Legislative Session of the Legislature of the state of Montana. Done in open court this 10th day of October, 1923." The minimum penalty for each of the offenses named therein was $200 fine and imprisonment in the county jail for not less than 60 days. Section 11075, as amended by Session Laws 1923, p. 287.

Upon the 1st day of July, 1926, the county attorney of Hill county filed in the district court of that county an information advising the court of the issuance of the injunction and of the fact that the same was served upon the defendant by the sheriff on October 11, 1923, and that on or about the 12th day of February, 1926, and on or about the 14th day of June, 1926, and on or about the 22d day of June, 1926, and on or about the 27th day of June, 1926, in Hill county, notwithstanding said injunction, the defendant "did then and there unlawfully, knowingly, willfully, and intentionally sell and dispose of certain intoxicating liquors, * * * and that on or about the 27th day of June, 1926, in Hill county, notwithstanding the injunction, the defendant did then and there unlawfully, knowingly, willfully and intentionally possess certain intoxicating liquors," which acts were then prohibited and unlawful. Thereupon the court issued a bench warrant for the defendant, pursuant to which he was brought before the court, and, upon the court's demand that he enter a plea to the information, he pleaded not guilty. His bond was fixed at $2,000, which he furnished.

It is admitted that the court threatened to try him upon the alleged contempts upon July 16, 1926. Thereupon the defendant applied to this court for an alternative writ of prohibition requiring the district court and its judge to desist and refrain from further proceeding in the cause until the further order of this court, and requiring the court and judge to show cause why they should not be restrained and prohibited from proceeding further in the matter. The application was granted, and in response thereto the defendant court and judge have made answer and return. No further recitation of the facts is necessary.

The basis for the injunction order is found in section 11075 as amended. That section provides that any person who manufactures, sells, barters, transports, imports, exports, delivers, furnishes, or possesses any intoxicating liquor, in violation of any of the laws of the state of Montana, relating to intoxicating liquors, shall be fined and imprisoned, etc.; makes it the duty of the prosecuting officer to ascertain whether the defendant has been previously convicted, and, if so, to plead the prior conviction; makes provision that a judgment for fine and costs shall be a lien upon the premises where a breach of the law takes place in certain cases, and concludes:

"If any person shall be convicted in a criminal action of violating any of the provisions of this act, an injunction shall be issued perpetually enjoining said person from thereafter violating the provisions of said act the same as though a formal application for an injunction had been applied for."

An extended search has not revealed a similar statute. Whether its draftsman took into consideration the fundamental principles which for centuries have called into action and governed the conduct of the strong arm of equity, or whether he had in contemplation the constitutional and statutory provisions adverted to hereafter, we have no way of knowing.

Injunction is an equitable remedy. The issuance of the writ always has been governed by the general principles which control the granting of equitable relief. 14 C.J. 175. Injunction is "proper only in cases of equitable cognizance." 14 R. C. L. 307. Aristotle defined the very nature of equity to be the correction of the law, where by reason of its universality it is deficient.

As a general rule, a court of equity will take no part in the administration of the criminal law, and may not enjoin either the commission of crimes or their prosecution and punishment. The legal remedies for the vindication of the criminal law and the enforcement of the public policy of the state are deemed fully adequate and peculiarly appropriate. 21 C.J. 155.

Ruling Case Law says it is an universally acknowledged principle that a court of equity has no jurisdiction in matters merely criminal or immoral. It leaves the correction of these matters to the criminal courts. The rule whch prevents a court of chancery from interfering with the administration of the criminal laws of the state is a wise one, founded upon sound principles of public policy. Any other would result in much confusion and embarrassment in preserving peace and order and enforcing the police power of the state generally. 10 R. C. L. 341, 342.

It is true that in the earliest period of its history the court of chancery assumed to exercise the power of preventing crimes, but this was because the ordinary courts were unable to protect the rights of the poor and weak from the encroachments of the powerful nobles. 32 C.J. 275. The necessity which impelled the exercise of the power did not long obtain, and in England any jurisdiction which the court of chancery ever had became obsolete long ago. 10 R. C. L. 342.

"It is elementary that, where the primary right of a party is legal in its nature, as distinguished from equitable, and one for which the law affords some remedy, equity does not relieve, if the legal remedy is full and adequate and does complete justice. No principle of equitable jurisdiction is more firmly established than this." 10 Cal. Jur. 463, 464. "It is now universally held that, except where there is express statutory authority therefor, equity has no criminal jurisdiction, and the acts or omissions will not be enjoined merely on the ground that they constitute a violation of law and are punishable as crimes." 32 C.J. 275.

These principles are crystallized in section 8710, R. C. 1921, which declares:

"Neither specific nor preventive relief can be granted to enforce a penal law, except in the case of nuisance, nor to enforce the penalty or forfeiture in any case."

While, in the absence of express statutory authority, a court of equity will not exercise jurisdiction to prevent the commission of a crime, its jurisdiction to abate a nuisance is undoubted, and it will, at the suit of the state, enjoin a public nuisance, although the act constituting the nuisance is also a crime. 10 R. C. L. 342; State ex rel. Collins v. Marshall, 100 Miss. 626, 56 So. 792, Ann. Cas. 1914A, 434; In re Wood, 194 Cal. 49, 227 P. 908. The criminality of the act neither gives nor ousts jurisdiction in chancery. 32 C.J. 278.

The right to enjoin a public nuisance is no new subject of equitable jurisdiction. 4 Pomeroy's Eq. Jur. 349. This power must not be confused with that of the common-law courts exercising criminal jurisdiction to abate a nuisance. 1 Bishop's Crim. Law, § 1079. The defendant, being found guilty, might be required as a part of his sentence to abate the nuisance, and, if he refused to do so, he might again be indicted for continuing it, or he might be compelled to do so by process for contempt, and, what is in effect the same thing, the judgment might provide that he stand committed until the nuisance be remedied, in analogy to the practice where a fine is imposed. Id., and 2 Bishop's New Crim. Procedure, § 868. But, so far as we are advised, no court in the exercise of its common-law jurisdiction ever assumed the right to issue an injunction, much less a right to do so when exercising its jurisdiction in a criminal case.

Section 11 of article 8 of our Constitution provides that the district courts shall have original jurisdiction in all cases at law and in equity, with certain limitations, and also in all criminal cases amounting to felony, and in all cases of misdemeanor not otherwise provided for.

As is generally known, prior to the adoption of the Code system the functions of courts of law and courts of chancery were distinct and separate; that dual system, if such it may be termed, was in practice slow, cumbersome, and...