City of Bisbee v. Arizona Insurance Agency
127 P. 722
Ariz.
1912
Check Treatment
ROSS, J.

This is an action of injunction instituted by appellees to restrain the city of Bisbee and its marshal from enforcing the terms of an ordinance of said city requiring fire insurance agents to pay a quarterly license before transacting any business, and prescribing penalties for its violation. The complaint alleges the invalidity of the ordinance, irreparable injury not susceptible of estimation, and a multiplicity of suits. The appellants demurred to the complaint for insufficiency in that it shows upon its face an adequate remedy at law.

As a genеral rule, the equity side of the court may not be invoked when the complainant has a plain, speedy, and adequate remedy at law. An examination of the complaint, with a view of ascertaining from its allegations whether it discloses that the appellees had an adequate remedy at law, is necessary. For a violation of the terms of the ordinance, the natural course, and the one provided by law, would be the arrest and trial of the transgressor in the municipal courts of the city of Bisbee. In that court and the superior сourt of Cochise county and the supreme court to which appeals may be had, the validity of the ordinance can be tested. The rem*315edy ordinarily for such cases is in the criminal side of the courts, and we must presume the courts will declare the law, and, if the ordinance is found to be void, so adjudge it. Should it, however, be found invalid, the defendants would be in no worsе position than if found innocent of violating a valid law. A party charged with crime has as much right to ask that equity pass upon the question of his innocence as to ask that it pass upon the validity or invalidity of the statute or ordinance denouncing the crime. The inapplicability of the writ of injunction to cases of this kind can be very forcibly illustrated by this case. Had the trial court found the ordinance valid, it could pronounce no judgment of conviction. The matter would have to be relegated to the courts of proper jurisdiction and the issuе there tried out. Had the court found the ordinance void, its judgment would become final,, but no one will contend that equity should take cognizance to declare an ordinance void and not to declare it valid. Should the ordinance be found valid upon a prosecution for its violation, the appellees cannot complain, no matter how it may affect their business. If it is invalid, that becomes a matter of defense to be interposed in the criminal prosecution.

“The legality or illegality of the ordinance is purely a question of law, which it is competent for a court at law to decide. We cannot assume that the courts in which the validity of the ordinance is presented ‍​​​‌​​‌​‌​​‌​​​‌​‌‌‌‌‌‌‌​‌‌​​​​‌​‌‌‌​‌‌‌​​‌‌​‌​​‍will not decide this question corrеctly. . . . The legal presumption is, that every court will decide questions presented for determination properly, and conduct proceedings before them fairly and impartially (Wolfe v. Burke, 56 N. Y. 115), so that it is at once apparent ' that the main question upon which appellee relies, namely, the invalidity of the ordinance, can be presented and determined in аny action which may be instituted against him for the violation of this ordinance; and as the law is well settled, by numerous well-considered cases, that, as a general rule, a bill in equity will not’lie to rеstrain prosecutions under a municipal ordinance upon the mere ground of its alleged illegality, for the obvious reason that the party prosecuted thereunder has a сomplete remedy at law, because he can avail himself of such illegality as a legal defense in prosecutions thereunder (Poyer v. Village of Des Plaines, 20 Ill. App. 30; Levy v. *316City of Shreveport, 27 La. Ann. 620; Dillon on Municipal Corporations, seсs. 906, 908, note; High on Injunctions, see. 1244), it follows that the averment in the bill of appellee, that the ordinance of which he complains is invalid, is not, of itself, sufficient to entitle him to the relief grаnted by the lower court. ’ ’ Denver v. Beede, 25 Colo. 172, 54 Pac. 624.

The injury complained of may or may not follow a prosecution of appellees. Should the court trying the ease declare the ordinancе void, no considerable injury would result, and, should it find the ordinance valid and inflict punishment for its violation, it would be performing a plain duty, and, while the result might be very injurious to the appellees, thе injury would be just what the law intends as a punishment for its transgression.

A multiplicity of suits may easily be avoided and could not follow, unless the appellees, pending the determination of the legality of the ordinance, choose to run the risk by repeating their acts. A temporary suspension of their business as insurance ‍​​​‌​​‌​‌​​‌​​​‌​‌‌‌‌‌‌‌​‌‌​​​​‌​‌‌‌​‌‌‌​​‌‌​‌​​‍agente during the time required to test the validity of the ordinanсe in the law side of the courts is not as important to them as it is to the general public that the usual and ordinary procedure common to all offenses be followed. As was said in Davis v. American Society for the Prevention of Cruelty to Animals, 75 N. Y. 362: “If this аction could be maintained in this case, then it could in every case of a person accused of a crime, where the same serious consequences would follow an arrest; and the trial of offenders, in the constitutional mode prescribed by law, could forever be prohibited.' A person threatened with arrest for keeping a bawdy-house, or for violating the excise law, or even for the crime of murder, upon the allegation of his innocence of the crime charged ' and of the irreparable mischief which would follow his arrest, could always draw the question of his guilt or innocence from trial in the proper forum. An innocent person, upon an accusation of crime, may be arrested and ruined in his character and property, and the damage he thus sustains is damnum absque injuria, unless the case is such that he can maintain an action for malicious prosecution or false imprisonmеnt. ' He is exposed to the risk of such a damage by being a member of an organized society, and his compensation for such risks *317may be found in the general welfare which society is organized to promote.”

We do not wish to be understood as laying down an unbending rule to the effect that equity will never interfere ‍​​​‌​​‌​‌​​‌​​​‌​‌‌‌‌‌‌‌​‌‌​​​​‌​‌‌‌​‌‌‌​​‌‌​‌​​‍and restrain the enforcement of ordinances criminаl in their nature, for, as was said by Mr. Justice Field in Re Sawyer, 125 U. S. 209, 222, 31 L. Ed. 402, 8 Sup. Ct. Rep. 482: “In many oases proceedings, criminal in their character, taken by individuals or organized bodies of men, tending, if carried out, to desрoil one of his property or other rights, may be enjoined by a court of equity.” This is not a case falling within the exceptions named by Justice Field. Here the city of Bisbee, through its officеrs, is in good faith endeavoring to enforce a penal ordinance passed under the belief that it was a bona fide exercise of legislative power. Had it been made to appear that the common council of the city of Bisbee, “under the pretense of seeking the good of that particular portion of society which is intrusted to its supervision,” wаs attacking the vested property rights of the appellees, a different solution of this case would be necessary—equity would disregard the form of the transaction and considеr its real purpose and substance. Before an injunction will issue to restrain officers from making an arrest for an alleged violation of law, the arrest must not only be illegal, but must be aсcompanied by interference with property rights. 22 Cyc. 905.

It might develop in a trial in the proper courts that foreign insurance companies that have paid to the state the percentage provided for in paragraph 813, Revised Statutes of Arizona of 1901, have a property right to carry on the business of insurance in all parts of the state without additional burdens in the way of licenses on their agents, yet it cannot be that appellees have a vested property right to transact that business. Their agency may be revokеd at any time. They have no investment in the insurance business that may be ruined or depreciated. Their sole stock in trade is the right to solicit insurance and collect premiums. The loss sustаined by the appellees by reason of a cessation of work during the time required to test the ordinance in the proper courts is purely speculative. In any event, at the end of such litigation they will have their property—the right to solicit insurance—unimpaired, save the contingency of its revocation *318by their principals. The only loss they are likely tо suffer is the commissions ‍​​​‌​​‌​‌​​‌​​​‌​‌‌‌‌‌‌‌​‌‌​​​​‌​‌‌‌​‌‌‌​​‌‌​‌​​‍on policies that they might have written in the interim.

The judgment of the trial court is reversed, and the ease remanded, with direction 'that the complaint be dismissed.

FRANKLIN, C. J., and CUNNINGHAM, J., concur.

NOTE.—As to injunction against the enforcement of an invalid ordinance, see note in 118 Am. St. Rep. 372.

As to injunction against the enforcement of penal laws and ordinances, sees note in 35 Am. St. Rep. 677.

As'to how equity jurisdiction is affected by a statute conferring ‍​​​‌​​‌​‌​​‌​​​‌​‌‌‌‌‌‌‌​‌‌​​​​‌​‌‌‌​‌‌‌​​‌‌​‌​​‍similar jurisdiction upon courts of law, see note in 55 Am. Dec. 77.

As to bills in equity to prevent multiplicity of suits, see note in 131 Am. St. Rep. 30.

As to injunction against prosecution under invalid ordinance, see notes in 6 Ann. Cas. 1013, and 10 Ann. Cas. 760.