26 Colo. 386 | Colo. | 1899
Lead Opinion
Mary Henderson, president of the Lead ville Women’s Christian Temperance Union, as such president, and for herself as an individual, and all others similarly situated, instituted an action in the district court of Lake county against G. A. L’Abbe and some forty others, to restrain gambling .in the city of Leadville. The grounds upon which she predicates her right to this relief are, in substance as follows:
Upon the filing of the complaint, a temporary injunction was issued, ex parte. A demurrer to the complaint was interposed and overruled, and a motion to dissolve the injunction denied; whereupon the relators applied to this court for a writ of prohibition to restrain respondents from further proceeding with the case. The respondents resist the application upon the ground that the district court, having jurisdiction in equity in a proper case, to enjoin the commission of a criminal offense, and the complaint attempting to present such a case, its sufficiency cannot be inquired into in this proceeding ; and the question as to whether or not the court below erred in granting, or refusing to dissolve, the writ, can only be determined on writ of error, after final judgment is rendered in the cause.
The logic of this contention .is, that because the district court is vested with jurisdiction to issue injunctions, its right to exercise such power in a particular case cannot be inquired info on an application for a writ of prohibition, or its action interfered with except on appeal or by writ of error, notwithstanding it clearly appears from the facts alleged that no grounds, for equitable interference existed. To this we cannot agree. ( While it is undoubtedly true that a court of equity has jurisdiction by injunction to prevent the violation of public law when necessary to prevent an irreparable injury to personal or property rights, it is equally true that it is not within its jurisdiction to prevent a criminal act, merely because it is criminal, and when it in no way violates a property dr-civil right t and before such jurisdiction can be exercised,
“ Jurisdiction in the court is power to hear and determine the particular case involved. If this power to hear and determine the particular case does not exist in the court in point of law, then there can be no jurisdiction in the case.”
If, therefore, it appears upon the face of the complaint itself, that the court below assumed unwarranted jurisdiction, or exceeded its legitimate powers, in issuing the injunction complained of, and the defendants are without any other speedy and adequate remedy through the ordinary modes prescribed by law, we entertain no doubt of our power and duty to compel the respondents to desist from further enforcing the order, or proceeding with the further consideration of the case, and to this end grant a writ of prohibition.
While the complaint is very voluminous, we think it fails to state a case cognizable in a court of equity. While it contains general averments that the plaintiff is the owner of property (without in any way describing its character or situation) and that the gambling complained of, and the renting of houses for that purpose, constitute a common nuisance which injures the public, and the plaintiff’s special interests as well, yet it fails to disclose any such special injury to herself as would justify her in maintaining this action; or any injury that is not common to the entire community; and, in fact, fails to show that the conduct of defendants in any way injures property or property rights. fBut, from its’ whole tenor and import, its manifest purpose is to restrain the commission of the crime of gambling in the city of Lead-ville, because of its corrupting and vicious influences, and its deteriorating effect upon the morals of the community. In other words, it is a plain attempt, through the aid of a court
“ That the law against this offense is not enforced and observed is no ground for the interposition of a court of equity, for, as has been observed, such a court has no jurisdiction to restrain the commission of crime, nor to enforce moral obligations or the performance of moral duties as such, nor can it rightfully interfere with the perfomance of an illegal act merely because it is illegal, in the absence of an injury to property or civil rights.”
The case presented by the complaint is one, if the facts alleged therein are true, where the defendants are guilty of a criminal offense pure and simple, for which the criminal law furnishes ample remedy, and the only one that courts are required to enforce. There are over forty defendants joined in an action, each charged with the separate and distinct offense of carrying on gambling, or renting houses for that purpose, at different localities in the city. Each is answerable only for his individual conduct, and yet he can obtain no final adjudication of lfis case, as these petitioners have elected to do upon demurrer to the complaint, but must suffer the delay incident to the mailing up of the issues and the trial of the cause as to the other defendants. It is therefore manifest that there is no other plain, speedy or adequate remedy that the petitioners can avail themselves of, and in our opinion, this is a proper ease for granting the relief prayed for Let the writ of prohibition issue accordingly.
Rehearing
PETITION EOR REHEARING.
The object of a petition for rehearmg is to
Speaking generally, a judicial opinion is not the place for airing or emphasizing the personal views of members of the court on the ethical phase of pending questions. If public morality, or the advancement of a certain legislative policy' is the object of a valid statute, it is the duty of the court to enforce it in the manner provided by the lawmaking power, irrespective of the notion of the judges as to the wisdom of the enactment, or the appropriateness of the remedy. When this court prohibits an inferior tribunal from proceeding in violation of law against those charged with gambling, or restricts such tribunal to the procedure which the constitution and statutes have provided for that purpose, it cannot
No argument is now presented which was not made, and but one authority cited that was not before the court, at the original hearing. Blagen v. Smith, 56 Pac. Rep. (Ore.) 292, is said to he, except as to the specific description of property in the complaint, not so strong as the case at bar for equitable relief, which was there granted, but which in effect we have said was not proper in the injunction suit whose further prosecution we have stopped. In the Oregon case an injunction was granted to plaintiff restraining the use by the defendant of the latter’s real estate for a bawdy house, on the ground that such use constituted a public nuisance, and as such, inflicted upon the plaintiff, in his property right, an injury different in kind from that which resulted to the public generally. Even assuming that the object of the prohibited injunction action was to protect the property right of the plaintiff therein, which, as we have already said and shall hereinafter repeat, was not its object at all, the difference between it and the Oregon case is very marked. Here there is no showing or claim that plaintiff’s injury is any different, either in degree or kind, from that suffered by every other citizen and property holder in Leadville. There the evidence, supporting that very claim, was that plaintiff’s property was so depreciated in value and his enjoyment thereof so interfered with, that his resultant injury was different in kind from that which all others sustained. This
“All property in a city is affected by the maintainance of a bawdy house, just in proportion to its contiguity thereto, and the damage which such property sustains, while differing in degree, does not differ in kind; and, such being the case, the owner of any such property affected in the same general way as other property therein could not successfully invoke equitable relief to enjoin its continuance. But where, by reason of the proximity of such property to the public nuisance, disgusting scenes and sounds shock the sense of those whose property, or the enjoyment thereof, is affected thereby, the injury sustained is necessarily different in kind from that suffered by the public at large, and, this being so, such persons are entitled to an injunction restraining the same.”
Moreover, the reasoning of that opinion is- authority for the principle enunciated in the original opinion in the case at bar; that, where the object of the action is solely to enjoin the commission of a crime and not the protection of a property -right, the case is not one of equitable jurisdiction.
Further examination of the complaint in the injunction suit but serves to strengthen our conviction that the claim made in argument -that its object was to protect plaintiff’s property is utterly unfounded. Such position, we venture to assert, could plaintiff herself be heard aside from the allegation of her pleading, would be emphatically repudiated as placing her in a false light. And when we read her complaint, the only expression of her object which we are authorized to consider, it is clear that the real and only object she had in view was to put a stop to public gambling in Leadville by the aid of a writ of injunction. Had her desire been to protect her property from irreparable injury different in kind from what others suffered, she would have had no difficulty in indicating the same to counsel so that the complaint would have been cast upon that theory. And if such was her object, why did astute counsel, at such great length
True it is, there are indefinite allegations of injury to plaintiff’s property, buf/we~ are satisfied that these were inserted as a subterfuge under cover of which counsel might avoid the effect of the argument against a court of equity restraining crime, and, as it were, a hook upon which a court so disposed might hang an excuse for favorable actiomj The object of that action was solely to enjoin public gambling, and not to protect a property right. Therefore, not only did the district court greatly abuse its discretion in granting a temporary writ of injunction, but would intensify the wrong by perpetuating it. But more than this, it had no jurisdiction, under the complaint as filed, to grant equitable relief. It was not a ease of defective pleading. The case as made belongs to a class of which a court of equity has no cognizance, and should it proceed further, its orders would be entirely void.
We have adverted to a misjoiner of parties defendant, not that we may pass upon any such question in this proceeding, but as a strong circumstance tending to show the nature of the action, and as quite conclusive proof of a lack of good faith on the part of plaintiff, if her object was really such as her counsel would now have us believe. A plaintiff must go into equity with clean hands; if not, he is not entitled to equitable relief, which otherwise he might ask.
The granting of a writ of prohibition rests in the sound discretion of the court. The writ is not a writ of right. Aside from the considerations mentioned, counsel say we should withhold the writ upon the grounds that an appeal lies from
In .this connection counsel cites section 297 of the code which provides that “ the writ shall be granted in all cases where an inferior tribunal * * * has exceeded the jurisdiction or greatly abused the discretion of such tribunal; * * * and there is no appeal, nor in the judgment of the court any plain, speedy and adequate remedy.” This language in its terms applies to certiorari.
Our jurisdiction in the premises, being directly conferred by the constitution, does not depend upon the statute; but if the procedure in this*court was subject to the code provision quoted, the mere fact that an appeal lies to the final judgment is not conclusive against the right to issue the writ. Notwithstanding that fact, it may be granted, if, in the judgment of the court, the remedy by appeal is not plain, speedy and adequate. An appeal is not always, and in all circumstances, adequate. The code does not mean that the writ shall not issue except when the two contingencies com-' bine, of an absence of appeal and inadequate remedy. The language is, “No appeal, nor plain, speedy and adequate remedy.” This means if, in addition to the lack of jurisdiction, either element, the absence of an appeal or inadequacy etc., of remedy, is present, the writ of prohibition may go.
We appreciate what force there is in an argument upon the second ground, and were not expeditious in issuing the writ. Gambling, it is true, is a misdemeanor under the laws of this state, but that fact, and the additional one that we áre opposed to it, constitute no reason why we should compel gamblers to submit to a court of equity the question of their guilt or innocence upon a charge of gambling brought against them, rather than to a trial by jniy upon an indictment regularly preferred. To a gang of robbers, burglars, holdups, or saloon keepers selling liquor without a license, against whom an inferior court of equity, in the absence of a statute expressly authorizing such remedy, was about to issue a writ
Suppose the defendants are gamblers; should we, on that account, take from them the protection the law throws around every citizen, guilty and innocent alike? Does that fact alone, irrespective of the consideration of plaintiff’s property rights, authorize a chancellor to determine their guilt merely for the purpose of enjoining them from continuing criminal practices ? Should we sit supinely by when appealed to, and permit an inferior court to proceed, wholly without jurisdiction, to inflict summary punishment for a violation of its illegal orders ? Gamblers, as such, are not entitled to the protection of the law, it is true. Neither are murderers nor thieves the objects of the law’s solicitous care; but one charged with any crime is, by the constitution and laws of the state, entitled to have his case tried by a jury of his peers, and not by a single judge, .however exalted such official may be. We have already said that where an act, the commission of which constitutes a crime, also produces a certain kind of injury to the property rights of a citizen, it may be enjoined, although it does constitute a crime; not upon the latter ground, but upon the ground that the act injures a private property right. We know of no case in the books where a similar perversion of justice has occurred, where such an unwarranted abuse of the process of injunction has been perpetrated, as was threatened in this case in the district court.
However desirable or convenient it might appear to put a stop to criminal practices by invoking the extraordinary writ of injunction, we cannot permit the constitutional and statutory rights of individuals to be thus violated. We cannot allow the writ of injunction to usurp and take the place of the orderly processes of the criminal law which the constitution and. the legislature have provided. Such a course as the district judge adopted, if approved by us, would make of
“ If it be true that ho direct precedent can be found, it is time that one should be created; and, as Murat declared himself to be his own ancestor, this court will be its own precedent. It is time the increased use of injunctions in certain directions should at least be so extended that relief may be afforded in cases like this.”
Whether the ancestor was proud of his offspring, or the maker of this precedent is entitled to credit for its creation is not strictly a legal question. We can only add that this remarkable declaration must speak for itself. As for this court, its highest obligation is to observe and enforce the con
The petition for rehearing should be denied, and it is so ordered.