| Ill. App. Ct. | Jun 19, 1886
There is no claim made by the bill, that the ordinance in question was not enacted by the proper authority of the village of Des Plaines, or that the subject-matter of it was not within the scope of the police powers conferred upon that corporation. While some of the provisions of the ordinance may be of questionable validity, there are others, which seem to us to be undoubtedly valid. The bill fails to show that the prosecutions which have been instituted, or which are threatened, were not prosecutions under the valid portion of said ordinance. If attempts to show instead, that the plaintiff below was not, in fact, guilty of having public picnics on his grounds of such a character as that disorderly persons would be gathered in and about said village, and that therefore he had not violated that portion of the ordinance, which, we think can not be successfully assailed. The question whether or not plaintiff had been guilty of such violation, can not be withdrawn from the courts of law into a court of equity for determination. It would be against fundamental principles to do so. Davis et al. v. American Society et al., 75 New York, 362. In that case, the defendants, whom the plaintiffs sought to have restrained from enforcing a penal or criminal law, were acting under a statute which the court held to be valid, but the plaintiffs placed their right to relief on the ground, among others, that they had not, in fact,, violated the statute. But the Court of Appeals held that to bc^ no ground for relief, because the only proper tribunal for the determination of that question was a common law court and ai jury. In that case, counsel for the plaintiffs cited the case of Wood v. The City of Brooklyn, 14 Barbour, 425, which has, been relied on by counsel for appellant in the case at bar. And the Court of Appeals made one distinction betweeen the' case in Barbour and that in Davis et al. v. American Society, supra, which will be found to exist between it and the case at bar. It was this: that in the Jatter the statute was valid ; but in the case of Wood v. City of Brooklyn, the ordinance, so far as it applied to Wood and his business, was wholly void. He had a license under the statute of the State, as an inn keeper, which authorized him to sell intoxicating liquors on Sunday to liis guests and to travelers.
The city of Brooklyn passed an ordinance so general in terms as to prohibit even inn keepers duly licensed under the State law from selling to their guests. Wood having a vested right under his license to sell to his' guests, and the city of Brooklyn being by statute without authority to pass so unqualified an ordinance, the latter was held void so far as Wood was concerned. His case presented special circumstances. He was intruded upon by the police, arrested on Sunday, ' locked up without the privilege of bail, and tried summarily, without jury, on Monday, although he applied for jury trial. He showed, by facts and circumstances, a clear case of irreparable injury. There are two distinguishing features between that case and the one at bar. First, in the former the ordinance, so far as it related to the class of persons to whom Wood belonged, was unauthorized by law and void. Secondly, irreparable injury was shown by facts and circumstances in a peculiar degree. In the case at bar, a part of the ordinance, and applicable to plaintiff’s business and conduct, was legal and valid. But plaintiff avers that he did not violate that part. Thirdly, the bill here contains only a general allegation of irreparable inj ary, without stating the facts and circumstances to show it. Such general allegation is not sufficient in such a case. Johnson v. Kier, 3 Pittsburgh R. 204 ; Amelung v. Seekamp, 9 Gill & J. 468; 1 High on Inj., § 34.
There is no allegation that the persons charged with the instituting or carrying on the prosecution under the ordinance were, or any of them, insolvents. Davis v. American Society, etc., 6 Daly, 85.
It is a general rule, supported by the prevailing current of authority, that a bill in equity will not lie to restrain prosecution under a municipal ordinance, upon the mere ground of alleged illegality of such ordinance. And the reason is obvious. The party prosecuted has a complete remedy at law. He can avail of such illegality as a legal defense in the respective prosecutions. If his rights of person or property are infringed by such prosecutions, he has his action at law against any person participating in the act. Yates v. The Village of Batavia, 79 Ill. 500" date_filed="1875-09-15" court="Ill." case_name="Yates v. Village of Batavia">79 Ill. 500; West v. The Mayor, etc., of New York, 10 Paige Ch., 539" date_filed="1844-01-16" court="None" case_name="West v. Mayor of New-York">10 Paige, 539; 2 High on Inj., §1244, and cases cited in notes. Kerr v. Corporation of Preston, 6 L. R. Ch. Div. 463; Saull v. Brown, 10.
But the counsel for appellant cites the case of Third Avenue R. R. Co. v. The Mayor, etc., of New York, 54 N.Y. 159" date_filed="1873-06-05" court="NY" case_name="Third Ave. R.R. Co. v. . the Mayor, Etc., of N.Y.">54 N. Y. 159, and insists that that case establishes a qualification of the above rules and is an authority in support of the bill in the case at bar. That case was decided upon a ground, and upon a principle wholly wan ting here, and, in our opinion, leaves the general rules above stated as unaffected. Every case of a bill for an injunction, which is an application addressed to the sound discretion of the chancellor, must depend upon the particular facts and circumstances set out. How, in the case last cited, seventy - seven suits had been commenced at the same time, by the corporation of New York, in a justice’scourt, against the railroad company, for an alleged violation of a municipal ordinance, whose validity the latter assailed. The railroad company applied to the court of equity to restrain the city from prosecuting all but one of said suits, until the validity of the ordinance could be tested at law. The bill was demurred to, and, at sp ecial term, the demurrer was overruled and judgment went for plaintiff, from which the city took an appeal to the Court of Appeals, where the judgment below was affirmed. The decision of the case, as we understand it, was placed upon the ground that if the seventy-seven suits had been brought in a court of record, the law would entitle the railroad company to ask for and have them all consolidated, since the circumstances would bring them within the rule for consolidation. But, having been brought in a justice’s court, which had no power to effect such consolidation, the defendant was thus deprived of the right, and subjected to unnecessary expense and vexation thereby. The court regarded the application to a court of equity, as simply to secure to the defendant, in such suits, the same result or benefit to which it would have been entitled as a matter of course, if the suits had been brought in a court of record; and, in that view, that case was distinguishable from West v. Mayor, etc., 10 Paige, 539. We can perceive no application that can be made of that case to the one in hand. Ho such element or circumstances exist here.
We are of the opinion that the decree of the court below sustaining the demurrer to the bill was right; and, perceiving no error in the matter of the assessment of damages on dissolution of the temporary injunction, the decree will, in all respects, be affirmed.
Affirmed.
Mobah, J., took no part in the decision of the case.