115 N.W. 675 | N.D. | 1908
On the 3d day of October, 1907, certain manufacturers of flour whose mills are located within this state commenced an action against Pure Food- Commissioner E. F. Ladd in the -district court of Cass county for the purpose of enjoining him from issuing or causing to be issued further circulars or bulletins condemning the flours manufactured by the plaintiffs in that action in the manner described in their complaint, and particularly the flour in the manufacture of which the process known as the-"Alsop process” was employed, and from certifying to- the county auditors the flours so manufactured by them as adulterated, and from seizing or -causing 1 to be seized 'such flours, and from in
We deem it altogether unnecessary to set out the affidavit of Prof. L.add in support of his application, and of his contention that the process used by the millers referred to is harmful and deceptive, or ■the numerous and lengthy affidavits of the experts named, submitted on behalf of the defendant in this proceeding to the contrary. Many points were raised by both the relator and the defendant and argued in this court, which we shall not determine, because, from the view we take of the law and the rights of the parties, their determination is unnecessary, and would be improper. The ground which underlies the relator’s demurrer interposed in the district court, and 'his application for the writ in this court, is that the courts of this state have no authority to entertain an action having for its purpose the enjoining of a public official while executing or claiming to execute a public statute for the public benefit. He construes paragraph 4, § 6631, Rev. Codes 1905, as a prohibition upon courts from entertaining .suits of this kind. That statute is as follows: “An injunction cannot be granted * * * (4) to prevent the. execution of a public statute by officers of the law for the public benefit. * * *” We do not so construe this provision of the code. Rather we construe it to mean that when a suit is tried wherein it is sought to enjoin an officer from executing a statute he shall not be enjoined when found to be regularly and lawfully executing the statute for the public benefit. If acting in excess of, or without, authority, he is not executing a public statute. There must be some method to protect people and property against the unlawful execution of statutes by public officials, and we think the provision referred to was not in-, tended to preclude an inquiry on the part of courts in a suit to enjoin as to the legality of official' acts. The contention in this case is that the food commissioner has misinterpreted the law, and that the products of the millers interested do not come within the condemnation of the pure food law, and that, instead of the district court exceeding its jurisdiction, Prof. Ladd' is the party who is acting in excess .of the. authority conferred upon him by the statute. It is the property interests of the millers and others that are at stake
It follows that the temporary writ issued -by this court must be vacated, and the relator’s application denied.