CITY OF ASHLAND, Kentucky, et al., Appellants, v. HECK‘S, INC., and James McCann, Manager, Appellees.
Court of Appeals of Kentucky
April 29, 1966
401 S.W.2d 724
H. David Hermansdorfer, Diederich & Hermansdorfer, Ashland, for appellee.
PALMORE, Judge.
The core question in this case is whether the Sunday closing law,
Shortly after it was decided in Arlan‘s Dept. Store of Louisville v. Commonwealth, Ky., 369 S.W.2d 9 (1963), that a department store is not a “work of necessity” excepted by
“There has never been any desire to interfere with the operation of any business which, historically, has been in operatiоn here on Sundays and which has not had its ‘operation of a necessity,’ or lack thereof, argued before the Appellate Court of the Commonwealth of Kentucky.”
Heck‘s remained closed on the six Sundays between September 8, 1963, and October 13, 1963, inclusive, and although numerous other establishments of the kinds heretofore mentionеd continued to do business on those days, no arrests were made or citations issued against any of those so engaged. Heck‘s then opened on Sunday, October 20, 1963, and remained open on the following four Sundays. On each of these five Sundays citations were issued against various employes of Heck‘s. Citations were issued also against the operators of several of the other and previously unmolested businesses. As the chief of police testified, on the first Sunday Heck‘s opened, “that is the Sunday I enforced the law.” Some 50 or 60 cases, including six against Heck‘s personnel, came on for trial in the city police court on November 20, 1963. The six cases involving employes of Heck‘s were tried and the court pronounced a fine of $50 and costs in each. All the other cases were either dismissed (some for good cause, as in the instance of “filling stations,” which are specifically excepted from the operation of the statute) or continued indefinitely. One was continued even after the defendant, a grocery store clerk, had entered a guilty plea.
At the last hearing most of the cases still remained technically on the docket of the police court,4 but from the testimony of the police judge given on that ocсasion it is obvious that in the absence of some authoritative determination to the contrary he will regard the Sunday operation of car washes, drug stores, groceries and markets as “work of necessity.” Hence it is reasonably clear that if relief is denied in this action the employes of Heck‘s will be forced to comрly with the law and all of the others in question will be treated as exempt.
As in Yick Wo, there is no question with respect to the validity of the statute the city is attempting to enforce against Heck‘s and its employes. So it was also in the case of City of Covington v. Gausepohl, 250 Ky. 323, 62 S.W.2d 1040 (1933), in which the city was enjoined from discriminating in favor of farmers and hucksters and agаinst storekeepers in the enforcement of an ordinance prohibiting the placing of boxes, barrels, baskets and merchandise upon its sidewalks. If there is any distinction between this and the Gausepohl case we are unable to find it, and from the studious omission of any reference to it in their brief we assume the appellants labor under the same difficulty.
It was held in the Gausepohl case that instead of enjoining all enforcement of the ordinance involved the trial court “should only have enjoined the city from making discriminations in its enforcement.” Accordingly, the injunction decreed in this case was made subject to the express proviso that it “shall in no wise interfere with the arrest and prosecution оf plaintiffs or any of their employees when such arrest and prosecution are part of the just and equal enforcement of
Athwart the argument that injunctive relief cannot be had in this type of case lies the hard fact that in Gausepohl it was. See also Purnell v. Maysville Water Company, 193 Ky. 85, 234 S.W. 967, 23 A.L.R. 223 (1921), and City of Harrodsburg v. Southern Ry. Co. in Kentucky, 278 Ky. 10, 128 S.W.2d 233 (1939), in each of which criminal proceedings were restrained. Whether the proceeding is an attempt to enforce an invalid law or to enforce a valid law in an invalid manner makes no logical difference. “The rule that equity does not enjoin criminal proceedings is not an invariable one. Cases may and do arise which call for such relief. It may be justified by exceptional circumstances and by the necessity to afford adequate protection to constitutional rights.” 28 Am.Jur. 748 (Injunctions, § 238). How else is the guaranty of equal protection to be enforced? Rarely could it be done in the course of each individual prosecution, because, as it was remarked in Ex parte Commonwealth of Virginia, 100 U.S. 313, 319, 25 L.Ed. 667, 669 (1880), “the violation of the constitutional provisions, when made by the
With respect to the argument that as admitted violators of the law the plaintiffs do not have clean hands and thus are not entitled to equitable relief, we think the answer is that if a person singled out for prosecution under a law that is not being еnforced against anyone else could be denied relief because he stands in violation of that law, in practical effect the equal protection clause of the 14th Amendment could never be invoked against any arbitrary and wilful discrimination in the enforcement of criminal laws. That simply cannot be.
In Cohen v. Webb, 175 Ky. 1, 192 S.W. 828, 830 (1917), it was said that criminal рrosecutions cannot be enjoined unless property rights are involved and it is necessary in order to prevent a multiplicity of suits and consequent irreparable injury. In view of the later opinions heretofore cited it must be concluded that Cohen has been overruled.5
In Strand Amusement Co. v. City of Owensboro, 242 Ky. 772, 47 S.W.2d 710 (1932), the plaintiffs attacked a city ordinance imposing penalties for the operation of commercialized amusement on Sunday. This court held they had no standing in equity because, regardless of whether the ordinance was valid, they were in violation of the state law on the subject. The case did not, however, as in Gausepohl and this, involve a tenable and valid claim of unconstitutional discriminatiоn. The same distinction applies to Gastineau v. Bradley, Ky., 249 S.W.2d 529 (1952).
Appellants portray appellees’ theory of relief in terms of “two wrongs make a right,” that so long as any other violator goes unwhipped then appellees claim the right to go their merry way with impunity. No. It is the other way around. There are in fact two wrongs, one being the violation by appellees of the Sunday statute, and the other being appellants’ violation of the Constitutions of this state and of the United States. It is appellants who would use the appellees’ wrong to blot out their own. As we see it, the judicial problem presented by these circumstances resolves itself into a matter of weighing one policy against the other, and when that is done we find the constitutional right to be of greater importance than our reluctance to give succor to a passing law violator as an unavoidable incident to the preservation of that right.
Probably no law contrived by man for his own governance ever has been or will be enforсed uniformly and without exception. But the Constitution does not demand perfection. It is only the obvious and flagrant case that warrants relief, and unquestionably this instance, in which appellees are the only persons found guilty in Ashland in a quarter century, falls in that category. Certainly we do not construe the judgment, nor can it be construed, as аppellants say, to mean that the successful prosecution of any charge under the Sunday law will require proof that every other known violator has been or is being prosecuted.
In fairness to the municipal officers who are engaged in this litigation, let it be understood that there is no suggestion of a dishonest or opprobriоus motivation in their actions and policies. On the contrary, it is manifest that they are the innocent victims of a persisting legislative neglect, disinclination or inability (whichever it may be) to come to grips with the problem—indeed, the obligation—of bringing a poor law into conformity with the
It is suggested that against the backdrop of contemporary mores perhaps we ought to say the other businesses that are being allowed to operate on Sunday in Ashland are works of necessity. However, we do not believe they actually are. Food and drugs are necessities of course, but it does not follow that there is any more of a necessity for them to be kept on open sale for the general public, particularly in conjunction with a variety of strictly non-essential items, all seven days of the week than it is for them to be kept on sale all night. Clearly this is a legislative matter.
The judgment is affirmed.
MONTGOMERY, J., dissenting.
STEWART, J., not sitting.
MONTGOMERY, Judge (dissenting).
One of the appellants is the police judge in whose court prosecutions for violation of the Sunday closing law were entered against appellees and many others. There were a large number of these prosecutions with differing dispositions. The effect of the majority opinion is to hold that such judicial officer may be enjoined from proceeding in the trial of the prosecution under a constitutional statute in which it is his duty to exercise a discretion and to act.
The authorities cited in the opinion do not justify the holding therein against the police judge. The Yick Wo and Gausepohl cases, thе claimed authority for the majority opinion, did not involve judicial officers. The Purnell and City of Harrodsburg cases are not authority for the majority holding on this point although police judges were enjoined. In those cases the judicial officer was enjoined from enforcing an invalid ordinance.
Appellees were prosecuted under
The majority opinion would dismiss Cohen v. Webb, 175 Ky. 1, 192 S.W. 828, as being overruled, ostensibly by the Purnell, City of Harrodsburg, and Gausepohl cases. For the reasons pointed out, these cases are not justification for overruling Cohen v. Webb, which held that a criminal prosеcution of a violation of a Sunday closing law could not be enjoined. Cohen v. Webb is squarely in point with the objection I seek to make to the majority opinion and is in accord with the rule as stated in Stephens v. McCreary County, 258 Ky. 516, 80 S.W.2d 592:
“It is a settled doctrine that a criminal prosecution cannot be enjoined unless property rights are involved and it is necessary for a сourt of equity to interfere in order to prevent a multiplicity of suits and consequent irreparable injury.”
The Stephens case was decided after Gausepohl. See also United Steelworkers of America (AFL-CIO) v. Fuqua, 6 Cir., 253 F.2d 594.
In the Steelworkers case it was held that a labor union and its members could
In Strand Amusement Company v. City of Owensboro, 242 Ky. 772, 47 S.W.2d 710, and Gastineau v. Bradley, Ky., 249 S.W.2d 529, sought to be distinguished in the majority opinion, it was held that an accused who has violated a valid statute has no standing in equity to come into court with unclean hands and obtain relief against prosecution. The Strand Amusement Company сase involved a violation of a Sunday closing law and was cited with approval in the Gastineau case.
The majority opinion seems to say that as a matter of policy it is better to give relief to a violator with unclean hands than to uphold the hands of the appellants in law enforcement because all of the violators are not prosecuted. There is no question as to the guilt of the appellees. To state a parallel situation, the one rat caught in the trap, under the authority of the majority opinion here, could justifiably claim freedom because no others had been caught. Such reasoning cannot be justified.
This opinion is far-reaching. It is put within the power of every accused to say that he has been discriminated against when he is arrested. One possible effect is to outlaw on the basis of discrimination a conviction against an accused wherein an accomplice has testified. This decision places another stumbling block in the rocky road to law enforcement.
For these reasons I respectfully dissent.