Gaertner v. City of Fond du Lac, 34 Wis. 497

34 Wis. 497 | Wis. | 1874

Cole, J.

We are of the opinion that the complaint states no grounds for the equitable interposition of a court by way of an injunction. In the first place the allegations in regard to the threatened action of the police in arresting plaintiff for selling liquor without a license, and in closing up his place of business and destroying it, and about the insolvency of such police officers, are stated upon information and belief. These matters should have been positively stated in the complaint, or otherwise proven, under the rule upon this subject laid down in Dinehart v. The Town of La Fayette, 19 Wis., 677. But besides this formal or technical objection to the manner in which the material allegations are stated in the complaint, we think there is another still more satisfactory and conclusive ground for denying an injunction; and that is, the well established principle that when a party has an adequate legal remedy for the protection of his rights, a court of equity will not interfere, but leave him to his legal remedy. This principle is too elementary to require the citation of any authority in its support; and the only question is, Has the plaintiff a legal remedy which is adequate and sufficient for the protection of his rights?

The gravamen of the plaintiff’s complaint is, that the common council has illegally or without cause revoked his license, and that as a consequence he is liable to arrest for selling liquor without license, and is in danger of having his business broken up and destroyed by the police officers, who are unfriendly to him. If the proceedings of the common council in thus arbitrarily revoking the plaintiff’s license without cause, and without giving him any notice of the charges made against him by the police and an opportunity to be heard in his defense were — as they would seem to be, — unauthorized and illegal, he had an ample remedy to correct this action by means of a common law certiorari. It is not seriously questioned on the part of the plaintiff’s counsel, that such a writ would lie to bring before the circuit court for review the proceedings of the common council in revoking his license. But he contends that such a writ would not afford an adequate remedy, because it would not operate to stay proceedings under the resolution of the common council. The general rule is that a certiorari to a subordinate .tribunal operates as a stay of proceedings -from the time of its service, unless the judgment or order complained of has begun to be executed (Patchin v. The Mayor of Brooklyn, 13 Wend., 664, and authorities cited by C. J. Savage) ; and it is very obvious that the plaintiff might have readily obtained an order staying proceedings under the resolution of the common council until its validity was determined by the circuit court. No injustice could therefore have been done the plaintiff if he had resorted to this legal remedy. And upon the hearing on the return to the writ, the proceedings of the common council could be inquired into, and the resolution revoking the plaintiff’s license, if unauthorized and illegal, could be set aside. We shall not go into a discussion of the question whether the common council has the power under the charter to arbitrarily revoke a license granted, without cause and without giving a party an opportunity to be heard in his defense. That question will more properly arise when the action of the common council comes up for review in another proceeding. Our purpose now is to show that the plaintiff has mistaken his remedy, and that the facts stated in the complaint do not afford any ground for the relief he seeks. We have incidentally expressed the opinion that upon the case as presented by the plaintiff the action of the common council was very questionable. It would seem contrary to all legal principles for the common council to revoke the plaintiff’s license upon charges without affording him an opportunity to meet and disprove them. And if, upon a hearing, it appeared that the plaintiff persisted in keeping his saloon open on Sunday in utter violation of law and contrary to the provisions of the city charter, a case would seem to be presented for exercising the power of revoking the license.

These remarks are made in reply to some requests in the briefs of counsel on both sides that we should express a definite opinion upon the power of the common council to revoke a license at its pleasure, with or without cause. We do not deem it proper to indicate our views more fully upon those questions, and will decide them as they arise if we should ever have occasion for doing so. The question before us now is, whether, upon the matters stated in the complaint, the plaintiff is entitled to an injunction. It seems to us that he is not, since he has an adequate legal remedy for the protection of his rights. There may be some things in the case of Wood v. City of Brooklyn, 14 Barb., 425, which support the position of plaintiff’s counsel, that a court of equity should grant an injunction upon the facts stated in the complaint, and which are in conflict with the views we have above expressed. But the principle upon which our decision is based, that where a party has an adequate legal remedy equity will not interfere, is there plainly recognized. And tbis is the only comment we care to make upon that case.

By the Court. — The order of the circuit court refusing to dissolve the injunction is reversed, and the cause remanded for further proceedings according to law.