177 Mich. 244 | Mich. | 1913
This cause was commenced by an information in the natur.e of a bill in equity filed by the prosecuting attorney of Berrien county, on the relation of certain property owners of the city of Niles in that county, praying for an injunction to restrain the defendant from continuing the retail liquor business in the city of Niles, and that his license be canceled and surrendered.
It appears that the defendant made the usual application under oath for a license to engage in the
The bill of complaint was filed on June 10, 1912, stating, among other things, that the defendant was not a citizen of the United States but was born in Germany and was and is a subject of the Emperor of Germany, and that he had never been naturalized as a citizen of the United States. The bill prayed for relief as follows:
(A) That the approval of the application of defendant to engage in the retail liquor business be by the court declared null and void.
(B) That the license issued upon said application be decreed illegal, unauthorized, and void, and that such license be canceled by the order and decree of the court.
(C) That the defendant be restrained and enjoined, by an order and decree of the court, from further carrying on or engaging in such business.
The defendant answered without oath, denying the allegation of the bill that he was not a citizen of the United States.
The cause being at issue, it was heard upon testimony taken in open court, and it appeared that the defendant had taken out his first naturalization paper at Ft. Wayne, Ind.; that in February, 1912, he went to St. Joseph, the county seat, for the purpose of taking out his second naturalization paper and was informed by the county clerk that there must be a publication, and that he would not be able to get his second paper or become naturalized as a citizen
Upon the hearing it appeared that authority was obtained by the prosecuting attorney from the attorney general to file the bill of complaint herein.
In the absence of evidence of the defendant, we think the evidence warrants the conclusion that defendant was not a citizen of the United States. It seems to have been the opinion of the learned circuit judge that, there being no evidence that the saloon kept by the defendant was a nuisance as matter of fact, and that it was not a nuisance per se,-a court of equity is without power to grant relief in such a case, and that the complainant should be relegated to the criminal law for his remedy.
The complainant urges that it is clearly established that the license to the defendant was obtained through and by his fraudulent and false representation of citizenship; and that under such circumstances a court of equity has the power to and should cancel the license and order its surrender, although the offense might be punished criminally under the provisions of the statute (section 36, Act No. 291, Pub. Acts 1909).
“An injunction will not issue to restrain a crime or a criminal prosecution. However, the fact that the acts complained of constitute a violation of the criminal law does not prevent their being enjoined” —citing Paulk v. Mayor, 104 Ga. 24 (30 S. E. 417, 41 L. R. A. 772, 69 Am. St. Rep. 128); Klein v. Livingston Club, 177 Pa. 224 (35 Atl. 606, 34 L. R. A. 94, 55 Am. St. Rep. 717); Vegelahn v. Guntner, 167 Mass. 92 (44 N. E. 1077, 35 L. R. A. 722, 57 Am. St. Rep. 443); Columbian Athletic Club v. State, 143 Ind. 98 (40 N. E. 914, 28 L. R. A. 727, 52 Am. St. Rep. 407); Hamilton-Brown Shoe Co. v. Saxey, 131 Mo. 212 (32 S. W. 1106, 52 Am. St. Rep. 622); monographic note to Crighton v. Dahmer, 35 Am. St. Rep. 670-681.
The authority of courts of equity to cancel certificates and other instruments executed by government officials or boards, and obtained by fraud, or obtained illegally, is well established. Vanderbilt v. Mitchell, 72 N. J. Eq. 910 (67 Atl. 97, 14 L. R. A. [N. S.] 304).
The Supreme Court of the United States has repeatedly held that bills in equity will lie to cancel patents obtained from the government by fraud of the patentee. Johnson v. Towsley, 13 Wall. (U. S.) 72, and cases there cited.
In the instant case an active fraud is charged and proved. We may well lose sight of the fact that the defendant might be prosecuted criminally, for we have frequently held that the jurisdiction' of a court
We think that the right of the prosecuting attorney to file this information upon the authority of the attorney general is recognized in Village of Wolverine v. Cheboygan Circuit Judge, 162 Mich. 713 (127 N. W. 744); State v. Zachritz, supra.
The decree of the circuit court is reversed, with costs of both courts to the complainant.
2 How. Stat. (2d Ed.) §5090.