47 S.W.2d 710 | Ky. Ct. App. | 1932
Affirming.
The Strand Amusement Company and six of its servants sued the city of Owensboro and its officials charged with the duty of enforcing the laws of the state and the ordinances of the city to enjoin them from attempting to enforce a certain city ordinance, recently adopted. The ordinance assailed was entitled "An ordinance defining commercialized amusements, prohibiting the operation of any such commercialized amusement on Sunday, and providing an annual license fee for such business and providing a method for the cancellation of such license or privilege of doing business, and a penalty for the violation of this ordinance." The legislation was embodied in seven sections. The first section defined commercialized amusements so as to embrace all places or forms of amusement operated for gain. The second *773
section made it a misdemeanor, punishable as therein provided, for operating on Sunday. Section 3 regulated the form and contents of applications for the licenses required by the ordinance. The fourth section set forth grounds upon which such licenses could be revoked. By section 5 the city was authorized to refuse electric service to any one while engaged in violation of the ordinance. The next provision declared the sections of the ordinance to be severable and not interdependent, so that the possible invalidity of one provision should not affect any of the others. The final section required that all licenses issued under the ordinance should be subject to its terms, conditions, and limitations, and any and all conflicting municipal legislation was repealed. The petition averred that: "In obedience to many requests and a large popular demand that moving pictures be exhibited by it at its places of business on Sunday the Strand Amusement Company did, on May 4th, 1930, open its two moving picture houses and furnish therein public entertainment in the form of moving pictures on the afternoons and evenings of each Sunday, and has continued to do so down to this date." It further averred that the plaintiff had been arrested and rearrested for violating the statute of the state of Kentucky forbidding unnecessary work on the Sabbath day, and had been fined frequently for that offense. It then alleged that the defendants were proceeding to enforce the ordinance against them because the plaintiffs proposed and intended to continue operating the picture shows on Sunday. It is the position of the plaintiffs that the ordinance is invalid because it imposes upon commercialized amusements a higher penalty for violating the Sunday law than is imposed upon other violators thereof (Stratman v. Com.
The circuit court dismissed the action on demurrer to the petition, and the plaintiffs have prosecuted an appeal.
We do not deem it necessary to investigate the validity of the ordinance or to intimate an opinion concerning that subject. The plaintiff's have no standing in a court of equity to aid or to protect them in the violation of a law of the state. It is settled that the operation of a moving picture show in this state on Sunday is unlawful. Ky. Stats., sec. 1321; Capital Theatre Co. v. Com.,
The principles announced are obviously sound, comport with public policy, and are sustained by abundant and unassailable authority. Turning first to the text-books, we find the rule thus succinctly stated in 32 C. J. sec. 57, page 83, under the title of Injunctions: "A court of equity will not grant an injunction, the effect of which *775 would be in aid of an act which if done would be criminal or illegal." See, also, the same title in 32 C. J., sec. 411, page 261, and 21 C. J., sec. 178, p. 191, under the title of Equity.
In 14 Rawle C. L., sec. 68, page 367, we find:
"It is a general rule that equity will not interfere with the police in the enforcement of criminal statutes, nor extend its help for the purpose of aiding one to commit a crime, and hence it will refuse an injunction when the evident purpose thereof is to prevent police interference in the conduct of an unlawful business, it being held that, if the plaintiff has been oppressed and injured by any unlawful acts on the part of the public authorities, he must seek redress, either under the provisions of the penal law, if any remedy is thus afforded, or by an action at law for damages. This doctrine has frequently been applied in the case of hotels alleged to be disorderly."
In 14 Rawle C. L., sec. 130, page 426, it is said:
"The general rule is that a court of equity has no jurisdiction or power to interfere to arrest the authorities charged with the execution of the criminal law, whether it pertains to the state at large, or to the municipalities, which are agencies in the administration of civil government. This interference has been held so completely beyond the jurisdiction of courts of chancery that their decrees in such eases have been disregarded as absolutely void in collateral proceedings, and persons arrested for contempt for violating their injunctions discharged on habeas corpus. The principle applies, even though the injunction is not asked against the prosecuting official, where, if granted, it will operate to enjoin criminal prosecutions."
The quotation is supported by a veritable avalanche of authority. The only exception to the rule or modification thereof is that an injunction may be issued to protect a lawful property right from an unlawful invasion. The principle applies with equal force to an application for an injunction to prevent the enforcement of a city ordinance. 14 Rawle C. L., sec. 132, p. 430. See also, 10 Rawle C. L., sec. 139, p. 389. *776
Coming now to the cases decided by the courts, it is discovered that equal vigor has been displayed in emphasizing the duty of courts of equity to refrain from lending any aid or comfort to those engaged in violation of the law. In Delaney v. Flood,
*778"Somewhat analogous are cases involving violations of the Sunday laws. Thus it has been held that equity will not by injunction interfere with the police in enforcing the Sunday laws, or in their inspection of moving picture or other shows, or with their right to arrest for any violation of the law either in the character of the exhibition or the method in which it is given. This rule has been applied in the recent cases to a Sunday performance of a moving picture show, Shepard v. Bingham,
125 A.D. 784 ,110 N.Y. S. 217 ; Keith, Etc., Amusement Co. v. Bingham,125 A.D. 791 ,110 N.Y. S. 219 ; Schimkevitz v. Bingham,125 A.D. 792 ,110 N.Y. S. 219 ; Yorkville Amusement Co. v. Bingham,64 Misc. Rep. 636 ,118 N.Y. S. 753 ; Edwards v. McClellan [Sup.] 118 N.Y. S. 181; a Sunday exhibition of waxworks, Eden Musee American Co. v. Bingham,125 A.D. 780 ,110 N.Y. S. 210 , reversing58 Misc. Rep. 644 ,108 N.Y. S. 200 ; roller skating on Sunday, Olympic Athletic Club v. Bingham,125 A.D. 793 ,110 N.Y. S. 216 ; billiard rooms kept open on Sunday, Kenny v. Martin,11 Misc. Rep. 651 ,32 N.Y. S. 1087 ; trading on Sunday, Anonymous, 12 Abb. N. Cas. (N.Y.) 455; Anonymous, 12 Abb. N. Cas. (N.Y.) 458; playing baseball on Sunday, Brighton Athletic Club v. McAdoo,47 Misc. Rep. 432 ,94 N.Y. S. 391 ; and interference with property rights in threatening to close a ballroom leased for Sunday entertainments, Suesskind v. Bingham,125 A.D. 787 , 110 N.Y. S. 213."
See, also, Joyner v. Hammond,
"Equity withholds her aid from those who transgress the law in and about a matter in which redress is sought." Headley v. City of Chester, 22 Pa. Dist. R. 900.
The maxim that he who comes into equity must come with clean hands applies with peculiar force to cases of this character. Dunscombe v. Amfot Oil Co.,
There are many decisions of this court on analogous questions that constitute authority for the principles applied. Cohen v. Webb,
It is upon like principle that public service corporations operating without right to occupy city streets with their equipment are not permitted to invoke the arm of the chancellor to aid them. East Tennessee Tel. Co. v. Anderson County Tel. Co.,
The audacity of the application suggests a comment of this court in referring to the case of Everett v. Williams, 9 L. Q. B. 197, reviewed in Central Trust Safety Deposit Co. v. Respass,
"Taken as a whole, we do not believe the books disclose a parallel in audacity to the case at bar, saving always the history of the dark-lantern firm of Houndslow Heath, detailed above. That a like judgment did not overtake the parties litigant here, as dissolved the ancient partnership, marks the lapse of our modern procedure from that vigorous integrity with which the ancient judges administered the common law in its primitive virtue."
The opinion of Judge Carroll in reinstating an injunction in Jones v. City of Paducah,
The judgment is affirmed.
Whole court sitting.