155 Ind. 526 | Ind. | 1900
— This was an application on behalf of the State for a restraining order forbidding the defendants from keeping and maintaining a gambling house in the town of Roby, in Lake county, Indiana. To render the injunction effectual, the appointment of a receiver, to take possession of the room and building where the gambling was alleged to be carried on, was asked for. Prayer for a permanent injunction on the final hearing of the cause.
The proceeding was by information filed in the Lake Circuit Court, by the Attorney-General and the prosecuting attorney of that county, which was duly verified.
The information charges, in substance, that all of the defendants, except Annie O’Leary, are, and since September 1, 1898, have been, unlawfully engaged in the business of selling pools, and keeping a room in which to sell pools, and in recording and registering bets and wagers upon the results of trials of skill, speed, and power of endurance of man and beasts in a certain room and building in Lake county, and State of Indiana, owned by the defendant, Annie O’Leary, but the real ownership of which is believed by plaintiff to be in J ames O’Leary; that' the -defendants on every day since September 1, 1898, up to and at the time of
That for the purpose of preventing prosecutions against them and deterring witnesses from giving evidence, whenever prosecutions are threatened or begun, the defendants circulate and publish reports that such proceedings are taken with a view of extorting blackmail from them; that the defendants claim to have organized a club, and are insisting upon the right to gather together gamblers and vicious persons, and to bring them in train loads to the said room and building to violate the criminal laws of Indiana, and to prevent persons coming into the room and building from furnishing testimony or identifying the persons for whom warrants are issued upon indictments and affidavits, and that the defendants have excluded, and claimed the right to exclude, from said room and building others than the sheriff and his deputies; that the defendants come on the same special trains with crowds of gamblers, criminals, and immoral persons to the said room and building, and leave on the same trains, so that the sheriff has no opportunity to make arrests except while the defendants are either in said room or with said crowds; that said room has never been used for any other purpose than for pool selling and other forms of gambling; that the room and building are provided
It is further charged that the room and building so used are entered from another building near by, so that it is necessary, in order effectually to enjoin and prohibit the doing of the things alleged in said room, and to prevent others from entering and using said building, to appoint a receiver with authority to take possession of the said room and building; that there is no adequate or effective remedy at law for the redress of the grievances set forth, and that said acts have become a public nuisance, and will continue to be and grow still more obnoxious unless the same be enjoined.
On the motion of the appellees, a change of venue was granted, the cause was sent to the Porter Circuit Court, and lion. Robert Lowry was appointed a special judge to try it. All of the defendants appeared, and filed an answer in denial. The cause having been submitted for trial, and the evidence heard, a general finding was made for'the defendants. The appellant filed motions, in various forms, for judgment in its favor, all of which were overruled, and there was judgment for the appellees on the finding. The appellant moved to modify the judgment, and also filed a motion for a new trial, both of,which motions were overruled. The errors assigned and discussed embrace these rulings.
The sufficiency of the information is not challenged, and the question to be determined on this appeal arises upon the proof alone. The evidence fully sustained the charges of the information as to the nature of the resort, the unlawful
There was no proof that any person had been annoyed or disturbed by reason of the maintenance of the gambling house,' or that any property rights of the State, were likely to be, in any manner, injuriously affected. The gambling house was remote from any other building, and was situated upon the open and uninhabited plain or prairie. The prem-, ises described were within the corporate limits of the town of Roby, and had been so located and operated for a considerable period of time. It was not shown that any of the inhabitants of Lake county, in any way, or under any circumstances, came in contact with the persons who frequented the gambling house. Nothing prevented the enforcement of the ordinances of the town, and the- statutes of the State against gambling and the maintenance of gambling houses, excepting the indifference or sympathy of the community, or the indolence or faithlessness of the public officers of the town and county charged with that duty. ,
The question, therefore, for decision is whether an in-j unction may be had on the application of the State to suppress a gambling house, where no injury to property is shown; where no person has been annoyed or disturbed; where gambling in all of its forms is made a criminal offense by statute, and the ordinary criminal process for its punishment and suppression is in full force and available to the State.
While it is probably true that every indictable nuisance may, under particular circumstances, be enjoined, it cannot be said that a court of equity is bound, in every case, to award the extraordinary remedy. of injunction, uponjhe naked proof of the existence of such a nuisance.} The cir"-"” cumstance that the acts constituting the nuisance are crimes
Unless it appears, not only that a public nuisance exists, but that the public is subjected to actual annoyance or injury by it, the courts generally refuse to interfere by injunction, at least before indictment and- a trial and conviction at law. Another element is usually found in the cases where an injunction has been granted to suppress an indictable nuisance, and that is the existence of some circumstances which seemed to render the immediate interference of the court necessary to prevent a real injury to the public, —proof of an exigency which the ordinary process of the court was not adequate to meet generally being required. In the present case, every unlawful act charged in the information as constituting the nuisance complained of is a crime or a misdemeanor, and is subject to indictment and punishment under the criminal code. The premises where the gambling is alleged to be carried on are not in a populous neighborhood, but out upon a prairie, the nearest house being nearly a quarter of a mile distant. The place has not been recently established, so that time was not afforded within which to present the offenders before the grand jury, but its existence has been of long standing and notorious. So far as the record discloses, no private person has made complaint of any injury sustained, or likely to be sustained, by himself or his property. Under these circumstances, we can see no legal reason why resort should not be had to criminal proceedings to punish and suppress acts, every one of which is expressly forbidden by the code as a crime or a misdemeanor, instead of casting the burden of
Injunctions have been granted at the instance of the Attorney-General of the State to prevent the destruction of a bridge upon a public highway. Attorney-General v. Forbes, 2 Myl. & Cr. 123.
To prevent the deposit of filth and noxious refuse matter upon a private vacant lot in the city of London. Attorney-General v. Heatley, L. R. 1 Ch. Div. (1897) p. 560.
To prevent obstructions to the freedom of interstate commerce. In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, 39 L. ed. 1092.
To prevent nuisances upon public highways. Green v. Oakes, 17 Ill. 249; Craig v. People, 47 Ill. 487.
To prevent the obstruction of rivers, harbors, or other navigable waters. People v. Vanderbuilt, 28 N. Y. 396; Davis v. Mayor, etc., 4 Kern. 506, 526.
To prevent the pollution of streams. Attorney-General v. Cockermouth Local Board, L. R. 18 Eq. 172.
To restrain a corporation from exercising a franchise not granted to it by law. People v. Third Ave. R. Co., 45 Barb. 63.
It is said in High on Injunctions, §23: “The subject-matter of the jurisdiction of equity being the protection of private property and of civil rights, courts of equity will not interfere for the punishment or prevention of mere' .criminal or immoral acts,, unconnected with violations of private rights. Equity has no jurisdiction to restrain the commission of crimes, or to enforce moral obligations, and the performance of moral duties, nor will it interfere for the prevention of an illegal act merely because it is illegal. And, in the absence of any injury to property rights, it Avill not lend its aid by injunction to restrain the violation of public or penal statutes, or the commission of immoral and illegal acts. Thus, the relief has been refused to prevent persons from carrying on the business of banking in violation of a statute restraining unincorporated banking associations. So, where it was sought to enjoin defendants from running their street cars on Sunday, in violation of a statute making it a penal offense, the relief was refused, although the action was brought by pewholders and property owners on the line of defendants’ track. In all such cases, ample remedy may be had by proceedings at law, and the offense being damnum absque mjv/ña, courts of equity will not. interfere. And, in accordance with the well-settled doctrine that equity will not interfere with the administration of the criminal laws of the State, an injunction will not be granted against the enforcement of executions for costs issued against an unsuccessful party to a criminal proseen* tion. Nor will a court of equity enjoin a judgment imposed for violating a law of the State. Nor will it enjoin suits of a criminal nature.” See, also, Wood on Nuisances (2nd ed.) §788; Hamilton-Brown Shoe Co. v. Saxey, 131 Mo. 212, 32 S. W. 1106; State v. Patterson, 14 Tex. Civ. App. 465, 37 S. W. 478; Attorney-General v. Tudor Ice Co., 104 Mass. 239; State, ex rel., v. Uhrig, 14 Mo. App. 413.
Judgment affirmed.