Nation v. Chism

1931 OK 763, 6 P.2d 766, 154 Okla. 50, 1931 Okla. LEXIS 485

• Court: Supreme Court of Oklahoma
• Decided: December 8, 1931
• Docket: 22680
• Status: Published

Opinions

ANDREWS, J.

This is an appeal from a judgment of the district court of Oklahoma county in favor of the defendants; in error, defendants in the trial court, against the plaintiffs in error, plaintiffs in the trial court. Hereinafter the parties will be referred to as plaintiffs and defendants.

The trial court sustained a general demurrer to the petition of the plaintiffs and from that order an appeal was taken to this court. There is but one proposition presented by the plaintiffs and that is, that the trial court erred in sustaining the demurrer of the defendants to the petition of the plaintiffs.

The petitioners sought to enjoin the defendants from enforcing the provisions of House Bill No. 23, Session Laws of 1931, commonly called the “Barbers Bill.” Among other things the plaintiffs, in their petition, alleged:

“That said purported act of the Legislature was never enacted by the Legislature never became an act of the Legislature, was nevei approved by the Governor, and is wholly void.”

As against a demurrer, a petition must be liberally construed and all of its allegations of fact must be taken as true. If any fact stated therein entitles the plaintiff to any relief the demurrer should be overruled. Schlingman v. Wells, 122 Okla. 275, 254 P. 716. Under that rule the petition in this case stated a cause of action if an action can be maintained to enjoin the enforcement of provisions of an act that was not enacted by the Legislature. If the facts stated in the petition are true, there is no act of the Legislature and the defendants are assuming to act without authority of law. Such is the admission of the defendants by their demurrer. Under the provisions of the act in question, a violator thereof is subject to the payment of a fine of not to exceed $100 for each violation thereof, and each day’s practice of the trade of bartering without compliance with the provisions of the act is made a separate offense. In other words, a barber in a city of over 600 population must refrain from the practicing of his trade, conform to the provisions of the act, or be subject to arrest, fine, trial, and imprisonment for each day that he continues to practice his trade. We are not dealing with an ordinary criminal statute which provides a punishment for the doing of a wrongful act, but with an extraordinary act, which recognizes the lawfulness of the barter trade, hut which, for public health purposes, attempts to regulate the carrying on of that trade and which requires performance of conditions on the carrying on of that trade, makes the practicing of the trade without performance of those conditions a misdemeanor, and provides a penalty of a fine of not to exceed $100 for each day the trade is carried on. A literal enforcement thereof would result in the arrest of each of the plaintiffs every day that he attempted to practice his trade of bartering, unless he complied with the terms of the act by doing the things therein required to be done. The plaintiffs allege, and by their demurrer the defendants admit, that the act was never enacted by the Legislature.

Nothing herein said is intended as a determination of whether or not the act is constitutional. We are limiting our consideration of the act to the allegation of the petition hereinabove quoted. If the act was never enacted by the Legislature, it is immaterial whether or not it is constitutional.

The right to practice the trade of bartering is one of the common occupations of life. The barber has a legal right to practice his trade without hindrance. See State ex rel. Sampson v. City of Sheridan (Wyo.) 170 P. 1, and Butchers’ Union Slaughter House Co. v. Crescent City Live Stock Co., 28 L. Ed. (U. S.) 385. That that right may be regulated by valid legislation is not disputed. The allegation of the petition is that no regulatory statute was enacted by the Legislature. We quote from 14 R. C. L., page 434, section 136, the following:

“* * * As a void statute affords no protection to those who execute it, such persons may be enjoined from^ acting thereunder, when there is no adequate remedy at law. The well-recognized exception to the general rule, supported by the great weight of authorities, is that where some irreparable injury will be occasioned to a private individual by the acts of a public officer or board by virtue of some alleged unconstitutional law, courts of equity will take jurisdiction and issue an injunction to restrain the commission of the act complained of.”

In support of the text the following cases are cited: Regan v. Farmers’ Loan, etc., Co., 154 U. S. 362, 14 S. Ct. 1047, 38 L. Ed. 1014; Scott v. Donald, 165 U. S. 107, 17 S. Ct. 262, 41 L. Ed. 648; Wilson v. Lambert, 168 U. S. 611, 18 S. Ct. 217, 42 L. Ed. 599; Prout v. Starr, 188 U. S. 537, 23 S. Ct. 398, 47 L. Ed. 584; Ludwig v. Western Union Tel. Co., 216 U. S. 146, 30 S. Ct. 280, 54 L. Ed. 423; Louisville, etc., R. Co. v. Garrett, 231 U. S. 298, 34 S. Ct. 48, 58 L. Ed. 299; Ellingham v. Dye, 178 Ind. 336, 99 N. E. 1, Ann. Cas. 1915C, 200; Pennsylvania R. Co. v. Ewing, 241 Pa. St. 581, 88 Atl. 775, Ann. Cas. 1915B, 49 L. R. A. (N. S.) 977; Bradley v. Powell County, 2 Humph. (Tenn.) 428, 37 Am. Dec. 563; Missouri, etc., R. Co. v. Shannon, 100 Tex. 379, 100 S. W. 138, 10 L. R. A. (N. S.) 681; Wadhams Oil Co. v. Tracy, 141 Wis. 150, 123 N. W. 785, 18 Ann. Cas. 779; Benz v. Kremer, 142 Wis. 1, 125 N. W. 99, 26 L. R. A. (N. S.) 842.

The defendants contend that the appeal should be dismissed for failure of the plaintiffs to comply with Rule No. 26 of this court. They say that the plaintiffs seek to attack the trial court’s ruling under several specifications, none of which are separately stated or numbered. We do not agree with that statement. The plaintiffs attack the trial court’s ruling under one specification, that is, that there was error in sustaining the demurrer of the defendants to the petition of the plaintiffs. The many reasons set forth by the plaintiffs as to why the trial court should not have sustained the demurrer are but partó of one specification of error within the meaning of Rule No. 26, supra.

The defendants contend that the appeal should be dismissed for the reason that the final action of the trial court was to dismiss the action and that the plaintiffs have not appealed from the order dismissing the cause, but from the order sustaining the demurrer to the plaintiffs’ petition.

This court has frequently held that an appeal may be taken from an order sustaining a demurrer to a petition. Ashley Silk Co. v. Oklahoma Fire Ins. Co., 33 Okla. 318, 125 P. 449; Knebel v. Rennie, 87 Okla. 136, 209 P. 414. The defendants contend that In those eases the cause was not dismissed. No authority is cited as to that distinction. We know of none. Under the provisions of section 780, C. O. S. 1921, the Supreme Court may reverse, vacate, or modify an order sustaining a demurrer to a petition. “Any of the following orders” therein refers to any of three subdivisions therein-after stated. The first subdivision refers to a final order; the second subdivision refers, among other things, to an order overruling a demurrer. An appeal may be had from either. It is not necessary that there be a dismissal of the action before an appeal to the Supreme Court may be taken from an order sustaining a demurrer to a petition, where the pleader elects to stand on the petition, and on appeal it is not necessary to allege error in dismissing the action where the action of the trial court in sustaining the demurrer to the petition is alleged to be erroneous.

The defendants contend that the plaintiffs have an adequate and speedy remedy at law. They do not state what that remedy is. If the plaintiffs have such a remedy, we do not know what it is. The defendants, to a considerable extent, rely upon the decision of the Territorial Supreme Court in Thompson v. Tucker, 15 Okla. 486, 83 P. 413, and the decision of this court in Turner et al. v. City of Ardmore, 41 Okla. 660, 130 P. 1156. The rule stated in the latter case and other cases to the same effect is overruled in so far as it is in conflict with the rule herein stated and we decline to follow the holding in the territorial case. To do so would require the plaintiffs to discontinue a lawful occupation, conform to the provisions of the act in question, or subject themselves to arrest, with all the trouble and inconvenience incident thereto, until a determination of a criminal prosecution and a decision by the county court or by the Criminal Court of Appeals as to the validity of the act could be had. To abandon a lawful occupation is certainly not an adequate and speedy remedy at law. To pay out money, as required by the provisions of the act, to individuals unauthorized to collect the same as a condition to the carrying on of a lawful occupation is not an adequate and speedy remedy at law. If the plaintiffs have any remedy at law, it is to defend the criminal prosecutions which, under the admitted allegations of the petition, are to be instituted against them.

Under the provisions of section 2, art. 2, of the Constitution of Oklahoma, all persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry. Where an attempt is made by any individual, without lawful authority, to deprive them of any of those rights, the courts of justice of this state ate open to them, and speedy and certain remedy must be afforded them for such a wrong. Section 6, art. 2, of the Constitution. This court will not close its ears when citizens of the state, compelled to abandon a lawful occupation, pay out money to prevent prosecution, or submit to arrest, plead that there is no authority for such interference with their rights and that the asserted authority therefor was never enacted by the Legislature.

We are aware of the fact that many courts hold that injunctive relief will not be granted to prevent the enforcement of a criminal statute. Many of those decisions are based on statutes and procedure not applicable in Oklahoma. The distinctions between actions at law and suits in equity have been abolished in Oklahoma. Section 178, C. O. S. 1921. Section 405, C. O. S. 1921, provides for injunctive relief not only to prevent “injury to the plaintiff,” but injury to “the plaintiff’s rights respecting the subject of the action.” Under the provisions of that section, it cannot he said that injunctive relief in Oklahoma is limited to protection of property. Notwithstanding the statements heretofore made by this court in some cases, we hold that the Legislature intended by the- provisions of section 405, supra, to provide for injunctive relief against injuries to a plaintiff as well as injuries to a plaintiff’s property. The case at bar furnishes sufficient reason for the enactment of such a legislative provision. Workmen engaged in the carrying on of a lawful occupation are threatened with arrest for refusal to conform to the demands of individuals. They seek relief at the hands of a court of justice and ask that such interference with their rights be enjoined. They assert as a reason therefor that the defendants are without authority to act for the reason that the legislative act under which they claim authority was never enacted by the Legislature. They are entitled to the relief sought where the defendants- by a demurrer admit that they are without authority to act.

We quote from Fitzhugh v. City of Jackson, 132 Miss. 585, 97 So. 190, wherein that court said:

“While there are some authorities. to the contrary, the great weight of authority and the better-reasoned cases hold that, where a municipal ordinance is void and its provisions are about to be enforced, or are being enforced, any person who is injuriously affected thereby, either in his person or the use of his property, may go into a court of equity to have the enforcement of the ordinance stayed by injunction.”

See, also, San Diego Tuberculosis Association v. City of East San Diego (Cal.) 200 Pac. 393.

In the language of Yee Gee v. City and County of San Francisco, 235 Fed. 757,

“If the enforcement or threatened enforcement of the act involves or will involve a direct invasion of property rights, equity will interfere to restrain the perpetration, of the wrong, notwithstanding the enforcement is through a criminal prosecution. Dobbins v. Los Angeles, 195 U. S. 223, 25 Sup. Ct. 18, 49 L. Ed. 169, and cases there cited.

“The present case, I think, falls within this exception. .The right to labor or., earn one’s livelihood in any legitimate field of industry or business is a right of property, and any unlawful or unreasonable interference with or abridgment ofsuch right is an invasion, thereof, and a restriction of the liberty of the citizen as guaranteed by the Constitution. Lochner v. New York, 198 U. S. 45, 25 Sup. Ct. 539, 49 L. Ed. 937, 3 Ann. Cas. 1133. That the industry here involved is in its essential nature a perfectly harmless, legitimate, and even necessary one, as viewed in its. relation to our domestic and social economy, no question is or can be made. In re Hong Wah (D. C.) 82 Fed. 623; In re Quong Woo (C. C.) 13 Fed. 231; In re Tie Loy (C. C.) 26 Fed. 611; Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220. If, therefore, the ordinance, as a whole, or in either of the particular features attacked, be in contravention of plaintiff’s rights under the Constitution, its enforcement as to him in such obnoxious respect would in legal contemplation constitute an unauthorized invasion of his property.”

Mr. Justice Field, concurring in the decision of the Supreme Court of the United States in the case of Butchers’ Union Slaughter-House & Livestock Landing Co. v. Crescent City Livestock Landing & Slaughter-House Co., 111 U. S. 746, 28 L. Ed. 585, said:

“The common business and callings of life, the ordinary trades and pursuits, which are innocuous in themselves and have been followed in all communities from time immemorial, must, therefore, be free in this country to all alike upon the same conditions. The right to pursue them, without let or hindrance, except that which is applied to all persons of the same age, sex, and. condition, is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright.

“It has been well said that, ‘The property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands, and to hinder his employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper.’ Adam Smith, Wealth of Nations, bk. 1, ch. 10.”

Mr. Justice Williams, speaking for the court in Yale Theater Co. v. City of Lawton, 35 Okla. 444, 130 P. 135, said:

“It also seems to be settled that equity will restrain, by injunction, criminal proceedings under an invalid ordinance, which, if allowed to proceed, would destroy property rights and inflict irreparable injury”

—and cited a long list of authorities in. support of that rule.

In the Law of Injunctions, by Lewis & Spelling, section 110, the authors state:

“That the bare privilege of' working for wages, doing or conducting a business, or pursuing one’s occupation or trade is a property right, or any thing more or other than a privilege, must be conceded to be legal doctrine, by all who will take the trouble to investigate the subject. And yet that doctrine, by repeated and cumulative adjudications, has become firmly established in the jurisprudence of the United States.

“Broadly stated, this right to conduct one’s business, without wrongful or injurious interference of others is asserted to be property, or property right, which will be lprotjected, when necessariy, by injunctive process. And the doctrine has been approved by the Supreme Court of the United States. The doctrine has two aspects ; First, as related to business, or the right to do or continue to do business, that it is a property right; and, secondly, that the right to labor or to- seek employment, or to continue the relation of employer and employee, is also a property right.’ And injunctions are now often granted to protect both.”

In section 10 the same authors state:

“It is equally clear that the wrong about to be done • a party, affecting his property and civil rights should be stayed or prevented, where he has no adequate legal remedy, notwithstanding that the'wrongful act or conduct complained of possesses elements of criminality. It follows that a court of equity will not withhold preventive relief because such act is criminal, it also appearing that tbe act or conduct will result in a violation of property rights and that the applicant for relief has no other adequate remedy.”

The judgment of the trial court is reversed and the cause is remanded to that court, with directions to overrule the demurrer of the defendants to the petition of the plaintiffs and for further procedure not inconsistent herewith.

HEFNER, CULLISON, and KORNEGAY, JJ., concur. LESTER, C. J., concurs specially. CLARK, V. C. J., and SWINDALL and McNEILL, JJ., dissent. RILEY, J., not participating.