284 P. 725 | Cal. Ct. App. | 1930
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *308 This is an appeal from a judgment of dismissal following an order sustaining a demurrer to the complaint without leave to amend.
The purpose of the action was to obtain an injunction restraining the defendant from continuing to pursue the occupation of usurer. The complaint contains the following allegations: That the city attorney and city prosecutor of the city of Los Angeles bring the action as such on behalf of the People of the state of California; that the defendant has on two separate occasions been convicted of the misdemeanor of "demanding and receiving usury"; "that many other complaints have been made to plaintiff" charging the defendant with violation of the Usury Law (Stats. 1919, p. lxxxiii), and that "plaintiff has filed and prepared to file many criminal complaints" against defendant charging him with violations of the same law; that defendant conducts a money loaning business and has violated and intends to continue to violate the Usury Law as a continuous course of conduct; that "many thousands" of the population of Los Angeles, which exceeds a million persons (latest estimates of the Chamber of Commerce are over *309 a million and a half), borrow money and do business with money lenders; that those doing business with the defendant "are persons of limited means and are necessitous borrowers," and are forced to pay him usury because of their great need for obtaining money; that unless restrained defendant "will carry out his said continuous course of conduct and will thereby not only injure persons so forced to pay usury to the said defendant, but will also cause a loss and detriment to the community and to the economic and financial well-being of said community, and also thereby cause a loss of income to the State of California and the city of Los Angeles, under its revenues, taxes and laws"; and that the People of the state of California "is without adequate remedy of law to prevent the defendant from carrying out and continuing said continuous course of conduct and from doing said unlawful acts" except by injunction.
[1] It appears to have been the theory of the pleader and is the theory of the city prosecutor, whose signature is appended to the briefs filed on behalf of appellant, that sanction for the institution of the action is to be found in the last sentence of section
Section
Criminal conduct may of course be coupled with the maintenance of a nuisance, as, for example, the maintenance of a factory giving forth noisome gases which not only offend the sense of smell of those residing in the vicinity, but also imperil their health in a district where the law prohibits and penalizes the maintenance of such establishments. But as a nuisance may exist without a concomitant crime, so may criminality exist without the criminal act or course of conduct constituting a nuisance as defined by the laws of this state. [5] It follows that where the action is for abatement of a nuisance by injunction or otherwise, facts which bring the act or course of conduct within the definition of a nuisance must be pleaded, and it is not sufficient to allege merely that the defendant has committed and intends to commit additional criminal acts. [6] The only attempt in the complaint before us to allege facts which would go to show that the course of law violation which it is averred the defendant intends to continue to pursue will obstruct the free use of property and thus amount to a nuisance is found in the statement "that unless restrained by this court, defendant and his agents, servants and employees will carry out his said continuous course of conduct and will thereby not only injure persons so forced to pay usury to the said defendant, but will also cause a loss and detriment to the community and to the economic and financial well-being of said community, and also thereby cause a loss of income to the state of California and the city of Los Angeles, under its revenues, taxes and laws." Themanner in which the persons forced to pay usury to the defendant will be injured or in which the free use of their property will be obstructed is not stated, nor are there anyfacts alleged from which a court could determine as a conclusion of law that defendant's continued violation of the Usury Law will cause a loss or detriment, by an obstruction of the free use of its property, to the community or a loss of income to the state or to the city. As to the latter, the income of both city and state is derived from taxation of property therein, and while the allegation of the defendant's usurious conduct might warrant the conclusion that some of the property of his victims has been or will be wrongfully acquired *312 by him, it is difficult to see in what way that circumstance is calculated to cause any loss of income to city or to state, since such property would be equally subject to taxation in whoever's hands it might be. A very similar allegation was contained in the complaint in Ellis Landing etc. Co. v. Richmond, supra, in which the court affirmed a judgment for the defendant following an order sustaining a demurrer without leave to amend, it being there averred that unless the carrying out of an alleged void agreement by the officials of the city of Richmond be restrained "the income of said city will be reduced and the taxable burden of plaintiff will be increased to his irreparable injury and damage."
The pleading here is of a similar nature to that in State v.Johnson,
[8] The greater part of appellant's brief is taken up by a discussion of the legal proposition that equity will not *313
withhold the remedy of injunctive relief merely because the acts constituting a nuisance are also of a criminal nature. There is no question of the correctness of this statement (Pierce v.Stablemen's Union,
People v. Gold Run etc. Co., supra, involved the dumping of tailings from mining operations into the American and Sacramento Rivers, thereby shallowing and widening them, increasing the liability of overflow with consequent danger of disastrous floods, and affecting their navigability, a clear case of that type of nuisance within the purview of clause (d) of section
[9] But where the acts or conduct complained of constitute merely a crime or series of crimes, the rule as laid down in section
The judgment is affirmed.
Craig, Acting P.J., and Thompson (Ira F.), J., concurred. *315