Joseph Triner Co. v. Shanks, 180 N.W. 955

Joseph Triner Co. v. Shanks

180 N.W. 955 | S.D. | 1921

Lead Opinion

POLLEY, J.

This is an appeal from the circuit court in Beadle county. Plaintiff is a private corporation with its principal place of business in the state of Illinois. The defendant Shanks is the state sheriff, and is charged, among other duties, with the enforcement of the prohibition law. The action was brought to secure an injunction, restraining and enjoining said defendant from instituting criminal prosecutions against persons who- may sell a certain proprietary medicine manufactured by plaintiff; it being claimed by the -defendant that said medicine is an intoxicating liquor as the same is defined by our statute. The gist of plaintiff’s cause of action is stated in his complaint as follows:

“That the plaintiff is and for many years has been the owner of a certain registered proprietary medicine known as “Triner’s American Elixer -of Bitter Wine-;” that it is and for many years has been engaged in the business of manufacturing and selling such medicine, at -wholesale, throughout the United States and in foreign countries; that there is a large demand for such -medicine in the state o-f South 'Dakota; that it has large sums of money invested in its said business and will derive large profits from- the sale of such medicine in the state of S'outh Dakota if permitted to sell therein; and that it desires and intends, if permitted so to do-, to- continue the sale of such medicine in 'said state.

“That said medicine is a 'bona fide medicinal preparation or compound containing no- more alcohol than is necessary for the extraction and preservation of the medicinal ingredients con*532tained therein, and that such preparation or compound is unsuitable for use as a beverage.

“That said preparation or compound contains valuable medicinal properties, and it is the desire and purpose of the plaintiff to sell the same in South Dakota for use as a medicine and not otherwise.

“That the defendant J. C. Shanks, as state sheriff, in excess of his authority as such officer and in direct violation of the laws of the state of South Dakota, has heretofore sent a notice to the state’s attorneys, sheriffs and police officers of said state that the sale of plaintiff’s said proprietary medicine within the state of South D'akota is strictly prohibited, will be prosecuted, and. asking the co-operation of the officex's to whom such notice is addressed to the effect that the law may be strictly enforced; that said defendant, in excess of his authority as state sheriff and in direct violation of the laws of South Dakota, has refused and continues to refuse to withdraw said notice, though repeatedly requested so to do; that he threatens to and, unless restrained by the process of this court, will carry out his said unauthorized and unlawful purpose of prohibiting the sale of plaintiff’s said preparation or compound for use as a medicine within the state of South Dakota; and that, unless restrained by the process of this coxxrt, the other defendants will co-operate with the said state sheriff in unlawfully prosecuting persons who sell plaintiff’s said px-eparation within the state of South Dakota for use as a medicine, notwithstanding the sale of said preparation for such purpose is expressly permitted and authorized by the laws of said state.

“That said unauthorized and unlawful threatened prosecutions, if not prevented by the process of this court, will cause a multiplicity of judicial proceedings; will cause great injury and loss to the plaintiff for which it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief; and that the plaintiff has xio adequate remedy by any action or proceeding at law to protect its rights in the premises.”

To this complaint, the ’Attorney General interposed a defflurrer on the grounds: First that the court was without jurisdiction of the subject-matter of the action; and, second, upon the ground that the complaixit does not state facts sufficient to consti*533tute a cause of action. The circuit court overruled the demurrer and the defendant appeals to this court.

It is the contention of the defendant that the said proprietary medicine known as “Triner’s American Elixer of Bitter Wine” is an intoxicating liquor as the same is defined by section 10237, Rev. Code 1919, and by their demurrer defendants admit that the state sheriff has directed the various subordinate peace officers throughout the state to arrest and prosecute any persons who may be found selling the said medicine. Section 10237, Rev. Code, 1919, reads as follows:

“Intoxicating Liquors Defined. — The term ‘intoxicating liquors’ wherever used in this article shall be construed to include whiskey, alcohol, brandy, gin, rum, wine, ale, beer, absinthe, cordials, hard or fermented cider, tincture or essence of ginger and all distilled, spirituous, vinous, m'alt, brewed and fermented liquors, and every other liquid, liquid mixture or compound containing alcohol, which mixture or compound is capable of being used as a beverage, whether or not the same is proprietary, medicated or patented.”

It is conceded that said medicine contains alcohol, and it is not alleged that it is incapable of being used as a beverage; therefore, so far as this section of the statute is concerned, the said proprietary medicine is within the definition of intoxicating liquor. But under the admissions by the demurrer of the allegations in the complaint, said medicine, plaintiff contends, comes within the provisions of section 10328, Rev. Code, and is absolutely excepted out of the statutes forbidding the manufacture and sale of intoxicating liquors. We are therefore, in this case, confronted with an admission by the defendants that the acts sought to be prevented do not constitute a' crime under any statute of this state, and that the threatened prosecution will result in damage that can be computed only with great difficulty, if at all.

■Section 10328 reads as follows:

“Nothing in this article shall be construed or shall operate to prohibit or regulate the manufacture, importation, sale or keeping for sale for other than beverage purposes, by any person, partnership or corporation, of any bona fide medicines, toilet articles, extracts, tinctures, preparations or similar compounds containing alcohol; provided, that such medicines, toilet articles, extracts, *534tinctures, preparations or similar compounds are unsuitable for use as a beverage.”

[1,2] The validity of the law- and the provisions thereof, under which the state sheriff is threatening to proceed, is not questioned. Do the facts' alleged in the complaint and admitted by the demurrer entitle the plaintiff to injunctional relief? The demurrer admits that 'the “said medicine is a bona fide medicinal preparation or compound containing no more alcohol than is necessary for the extraction and preservation of the medicinal properties -contained therein, and that such preparation or compound is unsuitable for use as a -beverage. * * * That plaintiff manufactures and sells the same for use as a medicine and not other.wise.” There is no question but that, under the allegations of the complaint, Triner’s Elixer is an intoxicating liquor. It comes within the clause “proprietary, manufactured or patented,” and is a liquid mixture containing, alcohol, and is capable’ of being used as a beverage. But while Triner’s Elixer is an intoxicating liquor, section 10328 excepts it from the operation of the prohibition statute when the sale is for nonbeverage purposes, unless the Legislature intended the clause “unsuitable for use as a beverage” to mean the same as the negative of “capable of being- used as a beverage,” found in section 10327. By the common use of terms a thing may be “unsuitable” for use as a beverage, and still “capable” of use as a beverage, while if it is incapable of use as a beverage -it is certainly unsuitable for such use. We are of the opinion that the Legislature intended the word “unsuitable,” in said section 10328, to -have its usual and ordinary meaning, and that therefore, while Triner’s Elixer is an intoxicating liquor, still, where it is manufactured, imported, sold, or kept for sale for other than beverage purposes, it is excepted from the operation of the prohibition law. The allegations of the complaint admitted by the demurrer bring this case within the exception in .section 10328, and no question is presented upon this appeal as to how far and when public officers may be prevented by injunction from- proceeding to prosecute criminal actions.

[3] It being admitted by the demurrer that the manufacture, sale, or keeping for sale of Triner’s Elixer is not an unlawful or criminal act, the state sheriff is -without any justification whatever for acts which constitute a wrongful interference with *535and an irreparable injury to plaintiff’s business. The primary purpose of the action therefore is-, not to enjoin criminal prosecutions, but is for the protection of plaintiff’s property rights from irreparable injury through threatened wrongful acts of a public officer.

The prevention of such injury by injunction is within the well-recognized jurisdiction of courts of equity.

The demurrer was properly overruled, and the order appealed from is affirmed.

Mo'COY, J., took no part in this decision.

Concurrence Opinion

WHITING, J.

(concurring specially.) I concur in result. As the record stands, defendants threaten to bring criminal prosecution where, under the admitted facts, there is no- statute authorizing same. Defendants misconstrue the word “unsuitable” as used in section 10328. As to what is the proper construction of this word presented a question of law which the trial court had a right to determine. It does not follow that, if defendants had, by answer, raised an issue of fact as to whether the alleged medicine was “unsuitable for use as a beverage,” the trial court could rightfully have proceeded to the trial of such issue. I am clear that, if such issue had been raised, the trial court would have been bound to dismiss the action.