65 W. Va. 700 | W. Va. | 1909
On a bill, purporting to be that of the State of West Virginia, not signed, however, by the attorney general, nor showing, in any way, that that officer authorized the filing of the same, but signed by. the prosecuting attorney of a county, and an individual, describing himself as attorney for the state, the circuit court of Brooke county awarded a preliminary injunction, inhibiting the defendants, George Ehrlick and others, from carrying on, or conducting, what is known as a “Turf Exchange” in said county, extensively resorted to by people from other counties and states,
The first objection to the bill is its failure to disclose any direction by the attorney general to institute the suit, his employment of counsel therefor, or his assent to the prosecution thereof, the record being entirely silent as to his attitude. Much authority is cited, indicating power and authority in the attorney general to institute suits on behalf of the state, in proper cases, and the propriety of his doing so, but none indicating that such suits cannot be instituted by the prosecuting attorney of the county, either by virtue of his office, considering it as being independent of, and not subordinate to, that of the attorney general, or regarding it as a subordinate office in the executive department of justice of the state. The relation of the two offices to one another, their respective powers and duties and the nature of the litigation all enter into the solution of this question. The office of attorney general is of very ancient origin and its duties and powers were recognized by the common law. That of proscuting attorney is of modern creation, it seems, and its powers and duties are given, imposed and prescribed by statutory law. 4 Cyc. 1028; Attorney-General v. Forbes, 2 Myl. & C. 129. Prosecuting attorneys are generally described as deputies or assistants of the attorney general, 4 Am. & Eng. Ency. Law 1026; but they are not dependent upon him for their powers in all cases nor in all respects subject to his control. 23 Am. & Eng. Ehcy. Law 275. In the exercise of his common law powers, the attorney general may, no doubt, advise the prosecuting attorney, as he does other officers, since he is regarded as the chief law officer of the state. As the constitution and laws of the state make the two offices separate and distinct and vest in the prosecuting attorney certain powers and impose upon him certain duties, it seems clear that the attorney general cannot strip him of the powers expressly given, nor increase the burdens laid upon him. The sense in which the local officer is subordinate to the general one seems to be that they are engaged in the same branch or department of the public business. This makes the relation theoretical, rather than practical. The business, once pertaining
The conclusion just stated implies that the authority of the prosecuting attorney to institute this suit depends upon its character. • If it is a criminal proceeding, he had such authority, but, if it is a civil one, he had not, unless it was given by the auditor, and, in the latter case, an inquiry might arise as to whether the auditor is chargeable with any duty or given any authority respecting a matter of this kind. As the bill was framed and is now regarded by its defenders, it is a criminal information, filed for the purpose of enforcing the criminal law. If it can be maintained as such, the filing and prosecution thereof are within the statutory jurisdiction and power of the prosecuting attorney; but, if the procedure is not authorized by the criminal law, nor its object within the auditor’s power of direction, it should have been instituted by the attorney general. Whether the absence of the signature of the latter to the bill, or the lack of disclosure in the bill of his direction to institute the suit, makes the pleading bad on demurrer, is the question most extensively discussed in the briefs, but no authority for any of the contentions is cited. It seems to us, however, that such an objection ought to be raised by a plea in abatement or motion to dismiss. It is not the bill of the attorney general. The State of West Virginia is the plaintiff and there is a presumption that no attorney would institute such a suit without authority. It would be inconsistent with his duty and obligation as an officer of the court. When the question is properly raised, the authority of the attorney must be shown, Mullin v. United States, 118 U. S. 271; Railroad Co. v. United States, 108 U. S. 512; but we think the question was not properly raised.
The charge against the defendants is the keeping and conducting of a gaming house, constituing a public nuisance. iTothing of detriment to the community or the public at large is alleged against them other than the unlawfulness of the enterprise. The bill says they take dishonest profits from the betting and carry
Jurisdiction in equity to abate nuisances is undoubted and of universal recognition. It is equally well settled that the state may institute suits for that purpose in proper cases. But it is * nowhere asserted that either the state or a private individual may maintain such a suit in any and .all cases of nuisance. In other words, relief in equity by abatement is not the necessary sequence of the establishment of the charge of nuisance. Some nuisances are criminal while others' axe not. Criminal nuisances are abatable by criminal process, and, where this process is adequate, jurisdiction in equity fails,- either because adequate legal remedy precludes jurisdiction in equity, or the subject matter is beyond the scope of equity jurisdiction. If a nuisance, purely criminal, injures or affects a private plaintiff in certain respects, he may resort .to equity for relief, but the existence of neither a civil nor criminal public nuisance necessarily calls for interposition by a court of equity. A private person cannot abate it, unless it is specially injurious or prejudicial to him, and the state cannot proceed against it in equity, if it be merely a criminal nuisance, unattended by injury to a personal or property right of some sort, creating necessity for prevention of irreparable injury.
“The cases in which chancery has interfered by injunction, to prevent or remove a nuisance, are those in which the nuisance has been erected to the prejudice or annoyance of a right which the other party had long previously enjoyed. It must be a strong and mischievous case of pressing necessity, or the right must have been previously established at law, to entitle the party, to call to his aid the jurisdiction of this court.” Van Bergen v. Van Bergen, 3 Johns. Chy. Rep. 287; Fisk v. Wilber, 7 Barb. 395; Kingsbury v. Flowers, 65 Ala. 479. “To obtain relief in equity for a private nuisance, the threatened injury must be irreparable, incapable of compensation in damages, and not doubtful or contingent.” Green v. Lake, 54 Miss. 540. “There is no case for equity, unless the charge be for injury to the enjojrment of property or other personal rights.” Sparhawk v. Railway Co., 54 Pa. St. 401. “It is elementary law that the subject matter of
The text in Story’s Equity Jurisprudence, sections 921 to 924, according equity jurisdiction great latitude to interfere, by injunction, to abate nuisances, is to be taken and understood not literally, but subject to the principles above stated. Although the language of these sections is very broad, it does not import in terms jurisdiction in equity to enforce the criminal laws or to interfere where the purpose is other than the vindication of personal and property rights. The English decisions referred to by Story as showing the ancient origin of such jurisdiction, at the suit of the attorney general, all had such objects. Eone
By far the greater number of cases cited by Story are those of purpresture. All the balance involved injuries to property or' to the health of individuals. Of course a direct injury to the health of an individual is not remedial by anything other than' a preventive process. Besides; offensive trades or pursuits, poisonous and injurious to the health affect the property of citizens in the vicinity thereof, detracting from the right of enjoyment of dwellings, and interfering with trade in business houses, and sequentially impairing the value of the properties. All these elements enter into the cases holding it to be within this branch of equity jurisdiction.
Such has been the interpretation by the American courts, including the Supreme Court of the United States. Mugler v. Kansas, 123 U. S. 623, is relied upon by counsel for the appellee as having interpreted it otherwise, but it does not do so. The statute, involved, expressly conferred the jurisdiction exercised in that case, namely, to prevent the use of real estate in the manufacture of intoxicating liquors. ■ It declared all places where intoxicating liquors were manufactured, sold, bartered or given awajq in violation of the provisions of the act, to be common nuisances, and authorized the attorney general, county attorney. or any citizen of the county, in which such nuisance existed, to sue in the name of the state to abate and perpetually enjoin it. Plainly this was a jurisdiction created by statute. It is true that Mr. Justice Harlan, in the discussion of the case, refers to the text in Story as justifying such use of the writ of injunction, but the main purpose of that argument was to sustain the constitutionality of the statute giving the remedy. In Commonwealth v. McGovern, 116 Ky. 212, the court granted an injunction to prevent the use of certain premises for the holding of
That criminal procedure and remedies are adequate to maintain and uphold the public right in so far as moral and political principles and general state policy are involved, is perfectly obvious. In cases of criminal nuisances, there may he, on conviction of the defendant, a judgment of abatement, effectually preventing repetition. 1 Bishop Or. Law, sec. 1079; State v. Noyes, 10 Foster (N. H.) 279; Wroe v. State, 8 Md. 416; Rex v. Stead, 8 Term Rep. 142; Barclay v. Commonwealth, 25 Pa. 503; Crippen v. People, 8 Mich. 117. It is also competent for the legislature, within the constitutional limits of its power, to declare any act criminal and make the repetition or continuance thereof
| It would be a waste of time to examine and discuss the numerous cases, declaring the maintenance or operation of a gaming-house a criminal nuisance, and as such indictable. Its criminality gives no right to injunction. An additional element, not shown by this bill, is required, namely, some injury to property or person. Immorality is not enough. There is a broad distinction between immoral acts and those injurious to health. A man can keep himself pure in an immoral atmosphere, but he cannot keep himself well in a poisonous atmosphere. Immorality does not kill, or injure the body. Toul air or poisonous water does. If we should sustain an injunction on the ground that the act is immoral as well as criminal, we would be bound to award it in all criminal cases, for, in every instance, there is some reason, affecting tíre body politic, for prohibiting acts and. making the commission thereof criminal, and soon there would be no distinction between courts of law and courts of equity in respect to criminal jurisdictionTj
Trom the principles and conclusions stated, it results that the decree, complained of, must be reversed, the preliminary injunction dissolved and the bill dismissed.
Reversed, and Bill Dismissed.