McDermott v. Hamilton

11 F. Supp. 235, 1935 U.S. Dist. LEXIS 1565

• Court: District Court, W.D. Washington
• Decided: June 17, 1935
• Docket: No. 548
• Status: Published

Opinions

BOWEN, District Judge

(after stating the faats as above).

From the reord now before the court, it appears that the defendants have no in- . tention of committing any of the acts which plaintiff seeks to enjoin, and counsel for defendants upon the argument point out that the facts stated in the complaint with reference to the relation of plaintiff with his associate barbers being taken as true, obviously plaintiff would not be amenable to punishment under the statute.

Defendants also oontend that plaintiff cannot invoke the equitable jurisdiction of this court to prevent the enforcement of a criminal statute. We find that the amended motion to dismiss must be sustained as the bill of complaint fails to state a cause of action within the equitable jurisdiction of this court. Our decision is rested on the case of Spielman Motor Sales Co., Inc., v. Dodge, etc., 55 S. Ct. 678, 680, 79 L. Ed. 1322, in which the court makes use of the following language :

“The general rule is that equity will not interfere to prevent the enforcement of a criminal statute even though unconstitutional. Hygrade Provision Co. v. Sherman, 266 U. S. 497, 500, 45 S. Ct. 141, 69 L. Ed. 402. See, also, In re Sawyer, 124 U. S. 200, 209-211, 8 S. Ct. 482, 31 L. Ed. 402; Davis & Farnum Manufacturing Co. v. Los Angeles, 189 U. S. 207, 217, 23 S. Ct. 498, 47 L. Ed. 778. To justify such interference there must be exceptional circumstances and a clear showing that an injunction is necessary in order to afford adequate protection of constitutional rights. See Terrace v. Thompson, 263 U. S. 197, 214, 44 S. Ct. 15, 68 L. Ed. 255; Packard v. Banton, 264 U. S. 140, 143, 44 S. Ct. 257, 68 L. Ed. 596; Tyson & Bro. United Theatre Ticket Offices v. Banton, 273 U. S. 418, 428, 47 S. Ct. 426, 71 L. Ed. 718, 58 A. L. R. 1236; Cline v. Frink Dairy Co., 274 U. S. 445, 452, 47 S. Ct. 681, 71 L. Ed. 1146; Ex parte Young, 209 U. S. 123, 161, 162, 28 S. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764. We have said that it must appear that ‘the danger of irreparable loss is both great and immediate’; otherwise, the accused should first set up his defense in the state court, even though the validity of a statute is challenged. There is ample opportunity for ultimate review by this Court of federal questions. Fenner v. Boykin, 271 U. S. 240, 243, 244, 46 S. Ct. 492, 493, 70 L. Ed. 927.”

The interlocutory injunction prayed for will be denied, and the amended motion to dismiss the bill of complaint will be granted.

The order embodying the foregoing ruling will be tentatively settled upon notice before Judge Cushman at Tacoma in the forenoon of any motion day, subject to consideration by other members of the court.

The clerk is directed to notify the attorneys appearing herein of the filing of this decision.

GARRECIIT, Circuit Judge, concurs.