107 P. 79 | Idaho | 1910
— On Aug. 25, 1909, a special election was held in Idaho county, under the act of Feb. 20, 1909 (Laws of 1909, p. 9), known as the local option statute. At the time such election was held, and on Nov. 23d thereafter, the appellant herein was engaged in the business of retailing intoxicating liquors in the town of Cottonwood in said county, under a license granted to him by the board of county commissioners of said Idaho county in July, 1909, said license to be in effect for a period of one year from said date. Subsequent to the holding of such election and prior to the commencement of this action, the respondent, J. M. Gilmore, prosecuting attorney of Idaho county, notified the plaintiff that by virtue of the result of such election and from and after Nov. 23, 1909, his license under which he was doing business in said county would be canceled and. revoked; and that in the event the said plaintiff continued in said business
Tbis action was instituted by appellant, after tbe appellant bad received sucb notice from tbe prosecuting attorney, to restrain tbe respondents from taking any steps, or in any way interfering with tbe plaintiff conducting his business at tbe town of Cottonwood in said county, linder or by virtue of said license, and from making any order revoking or canceling tbe said license. Tbe matter was beard by tbe judge of tbe district court in and for said.county, whether a temporary injunction should issue as prayed for in tbe complaint. After bearing tbe judge made an order “and adjudged and tbis does order and adjudge that tbe application of tbe plaintiff for a temporary restraining order herein be and tbe same is hereby denied.” From tbis order tbis appeal was taken.
Appellant presents two questions: First, is tbe act of Feb. 20, 1909, known as tbe local option statute, constitutional? Second, has sucb statute been adopted by tbe electors of Idaho county in tbe manner provided therein and therefore become a law in said county?
Tbe first question, including objections made by appellant to tbe validity of several separate sections of tbe local option statute, has been answered by tbis court in tbe decision in tbe case of Gillesby v. The Board of Commissioners of Canyon County, ante, p. 586. As to tbe second question, counsel for appellant contends that inasmuch as tbe law has not been complied with in petitioning for tbe election, calling and giving notice of sucb election, and tbe bolding of an election in certain precincts, that therefore tbe local option statute has not been adopted by tbe electors of Idaho county and has not become operative in sucb county; and by reason of which fact appellant’s license is in full force and effect, and protects him in tbe sale and disposition of intoxicating liquors, and to carry out the threats and purposes of tbe prosecuting attorney of said county would be to deprive him of bis legal rights and cause him to sustain irreparable injury to bis business, and for which there is no adequate remedy at law.
It will thus be seen that the purpose of this action, after the constitutionality of the statute is determined, is an effort to enjoin the institution and prosecution of criminal suits against the appellant for violations of an alleged statute.
It may be stated as a general proposition of law that courts of equity will not, as a general rule, interfere to restrain criminal or qwsi-criminal prosecutions, or take jurisdiction of any case or matter not strictly of a civil nature. (2 Story’s Equity Juris:, sec. 893; 2 Daniel Ch. Pr. 1620; 1 Spelling on Injunctions, 2d ed., see. 71; Moses v. Mayor etc. Mobile, 52 Ala. 198; Fitts v. McGhee, 172 U. S. 516, 19 Sup.
“If, because they were law officers of the .state, a ease could be made for the purpose of testing the constitutionality of the statute by an injunction suit brought against them, then the constitutionality of every act passed by the legislature could be tested by a suit against the governor and the attorney general, based upon the theory that the former as the executive of the state was, in a general sense, charged with the execution of all its laws, and the latter, as attorney general, might represent the state in litigation involving the enforcement of its statutes. That would be a very convenient way for obtaining a speedy judicial determination of questions of constitutional law which may be raised by individuals, but it is a mode which cannot be applied to the states of the Union consistently with the fundamental principle that they cannot, without their assent, be brought into any court at the suit of private persons. If their officers commit acts of trespass or wrong to the citizen, they may be individually proceeded against for such trespasses or wrong. Under the view we take of the question, the citizen is not without effective remedy when proceeded against under a legislative enactment void for repugnancy to the supreme law of the land; for, whatever the form of proceeding against him, he can make his defense upon the ground that the statute is unconstitutional and void. And that question can be ultimately brought to this court for final determination.”
We are satisfied that the trial court committed no error in denying the injunction. The judgment is affirmed. Costs awarded to respondent.