Wiegand v. West, 144 P. 481

Wiegand v. West

144 P. 481 | Or. | 1914

Mr. Justice Burnett

delivered the opinion of the court.

1. It is a vital principle of popular government that every person within the state is subject to its Constitution and laws, be he Governor or groundling. It is equally true that the mere circumstance that an individual occupies at the time an official position in the state will not protect him from the consequences of his violation of its laws or the infringement of the rights of another: Salem Mills Co. v. Lord, 42 Or. 82 (69 Pac. 1033, 70 Pac. 832); Taylor Sands Fishing Co. v. State Land Board, 56 Or. 157 (108 Pac. 126); Corvallis & Eastern R. Co. v. Benson, 61 Or. 359 (121 Pac. 418); *254Franks v. Smith, 142 Ky. 232 (134 S. W. 484, Ann. Cas. 1912D, 319).

2. It is fundamental law in this state that:

“No court shall be secret, but justice shall be administered openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property or reputation”: Article I, Section 10, of the Constitution.

Under the precedents above cited, in every proper case an injunction is as available as any other remedy against public officials who violate private rights. In other words, the individual who for the time being is a public officer is quite as. amenable to the law as any private person.

3. The question is whether the plaintiff has properly conceived his remedy in the present case, diving the allegations of the complaint their full value, yet it appears that the trespass complained of happened before the commencement of the suit. Injunction is a preventive remedy, and is designed in general to stay the lawless hand before it strikes the blow. We do not, however, impound the water for the wheel after it has run by the mill. It is vain to lock the door of the stable after the horse has been stolen, and it is equally useless to insure a house after it is burned. The trespass having been accomplished before the commencement of the suit, it would be of no utility for a court to enjoin what has already passed.

Ewing v. Rourke, 14 Or. 514 (13 Pac. 483), was a case where the defendant had trespassed upon real property of the plaintiff to enjoin'which a suit was commenced afterward and a claim of damages incorporated in the complaint. Mr. Justice Thayer there said:

*255“If lie [referring to the plaintiff] had shown that the respondent was committing or continuing some act which would produce injury to the appellant, it would have been sufficient; but here the act had already been done; the damages had been incurred and were ascertainable. The conduct of the respondent in the premises was, according to the allegations of the complaint, lawless and high-handed; but, from all that appears therefrom, his acts were only a temporary affair, and the law affords an ample remedy for redress in damages. It is evident that the wrong has spent its force, though the appellant alleges that ‘the respondent still continues and threatens to continue to trespass on said premises, and to keep his stock running thereon.’ This is no allegation of any fact — is only a conclusion. ’ ’

Again, as said in City of Alma v. Loehr, 42 Kan. 368 (22 Pac. 424):

“The function of a writ of injunction is to afford preventive relief. It is powerless to correct wrongs or injuries already committed. This is alphabetical law. The injunction provided by our Code of Civil Procedure ‘is a command to refrain from a particular act.’ ”

We note in passing that our own Code contains substantially the same definition of injunction: See, also, Brownfield v. Houser, 30 Or. 534 (49 Pac. 843); Sears v. James, 47 Or. 50 (82 Pac. 14); Smith v. Davis, 22 Fla. 405; Pensacola etc. Co. v. Spratt, 12 Fla. 26 (91 Am. Dec. 747); Georgia Pac. R. Co. v. Douglasville, 75 Ga. 828; Mead v. Cleland, 62 Ill. App. 294; Heinl v. Terre Haute, 161 Ind. 44 (66 N. E. 450); Cole v. Duke, 79 Ind. 107; East Saginaw Ry. Co. v. Wildman, 58 Mich. 286 (25 N. W. 193); Carlin v. Wolff, 154 Mo. 539 (51 S. W. 679, 55 S. W. 441); Sherman v. Clark, 4 Nev. 138 (97 Am. Dec. 516); Attorney General v. New Jersey etc. R. Co., 3 N. J. Eq. 136; United N. J. R. Co. v. Standard Oil Co., 33 N. J. Eq. 123; Dixie *256Grain Co v. Quinn, 181 Ala. 208 (61 South. 886); Parkinson v. Building Trades Council, 154 Cal. 581 (98 Pac. 1027, 16 Ann. Cas. 1165, 21 L. R. A. (N. S.) 550).

4. It is true the plaintiff alleges that the defendants will destroy and confiscate his property, ruin his business, and render it impossible for him to conduct the same in the town of Copperfield. No fact is stated as a foundation for this fear thus expressed. Laying aside as negligible fustian the proclamation of martial law and the like, the essence of the answer is found' in the allegation:

‘ ‘ That none of the property of said plaintiff has been destroyed but is being held by the militia to be disposed of as directed by the commander-in-chief of the military forces of the state.”

5. This is a sufficient answer to the plaintiff’s fear of confiscation, and must be admitted to be true when assailed by the demurrer. However we may characterize the occurrences described in the pleadings, yet we cannot presume that the defendants will do any unlawful act in the future. Some fact must be alleged showing that such result is the purpose of the defendants. Moreover, if all the fears of the plaintiff as expressed in his complaint were realized, it would be only a part of the single trespass described in his complaint. Concerning such a situation, Mr. Justice Lord, in Smith v. Gardner, 12 Or. 221 (6 Pac. 771, 53 Am. Rep. 342), states the principle thus:

“All the cases fix the rule to be that the injury must be of that peculiar nature that it cannot be adequately compensated in damages or atoned for in money. There must be some equitable feature or incident to take it out of this rule, or equity will not interfere; as where the injury, although susceptible of pecuniary compensation, yet in the particular case, if the party is insolvent, and on that account unable to atone for it, *257it will be considered irreparable. But where the facts present no matter requiring equitable relief, and the remedy at law is adequate to do full and complete justice, the court itself should reject such jurisdiction as not within its legitimate province.”

To the same effect is Moore v. Holliday, 43 Or. 243 (72 Pac. 801, 99 Am. St. Rep. 724).

In the present case it is manifest that the plaintiff kept his goods for sale, and that some amount of money would reasonably satisfy him if he parted with the entire business. Under such circumstances, the remedy at law whereby in some manner damages could be awarded to him is fully adequate for the redress of his grievances. This being the case, equity, which always uses the remedy sparingly, will not countenance government by injunction which, in some respects, is as little to be desired as the arbitrary exercise of military power.

For these reasons, the decree of the Circuit Court is affirmed. • Affirmed.