Sherod v. Aitchison

142 P. 351, 71 Or. 446, 1914 Ore. LEXIS 196

• Court: Oregon Supreme Court
• Decided: June 16, 1914
• Status: Published

Opinion

Mr. Justice Moore

delivered the opinion of the court.

It will be assumed that the complaint alleges such an injury to property rights as will authorize the intervention of equity to enjoin the maintenance of criminal actions, if it be conceded that the averments of the primary pleading bring the case within the rule which permits a party to challenge a statute or an ordinance on the ground that it is void.

1. Where a party has a plain, adequate and complete remedy at law for the enforcement or protection of a a private right or the prevention of or redress for an injury thereto, a court of equity will not intervene, and hence the threatened prosecution of a criminal action will not usually be enjoined.: Section 389, L. O. L.

2. The mere alleged invalidity of a statute or an ordinance is not a statement of facts sufficient to authorize equitable intervention, since such void enactments may be interposed as and constitute complete defenses to the prosecution of criminal actions, and for that reason they are available in a court of law: Thompson v. Tucker, 15 Okl. 486 (83 Pac. 413, 6 Ann. Cas. 1012, and notes).

3. One of the exceptions to this general rule is where an attempted enforcement of an invalid ordinance or statute would result in irreparable injury to property rights, in which case a court of equity may restrain the maintenance of criminal actions: New Orleans Baseball & Amusement Co. v. City of New Orleans, 118 La. 228 (42 South. 784, 118 Am. St. Rep. 366, 10 Ann. Cas. 757, 7 L. R. A. (N. S.) 1014). To the same effect, see, also, the notes to Telegraph Co. v. Powers, 1 Ann. Cas. 119; Sullivan v. San Francisco Gas & Electric Co., 7 Ann. Cas. 574. This departure from the ordinary precept has been recognized and followed in Oregon: Sandys v. Williams, 46 Or. 327, 336 (80 Pac. 642); Hall v. Dunn, 52 Or. 475, 481 (97 Pac. 811, 25 L. R. A. (N. S.) 193); Portland Fish Co. v. Benson, 56 Or. 147, 155 (108 Pac. 122); Spaulding v. McNary, 64 Or. 491, 497 (130 Pac. 391, 1128).

4. A case in which a party seeks to have determined in a judicial proceeding an abstract question which does not arise upon existing facts or involve conflicting rights, so far as he is concerned, presents a moot inquiry which will not be considered. An action, in order to be bona fide, must present an actual controversy, having adverse interests, and be instituted and maintained to redress the grievance of the plaintiff and not to affect third persons: Ward v. Alsup, 100 Tenn. 619 (46 S. W. 573).

5. Under the decisions of this court, to entitle a party to invoke equitable intervention to restrain the enforcement of an alleged void penal statute, on the ground that it would injuriously affect his property rights, he must allege in his complaint that the business in which he is engaged is clearly interdicted by the provisions of the enactment, or he may aver that, although the law has no application to his business, yet he is threatened with its attempted enforcement by a criminal action, in which latter case his complaint must, in the description of such business, traverse each specification of the statute or ordinance that is conditionally or ultimately prohibited.

Section 1 of the statute in question reads:

“For the purposes of this act a commission merchant is defined to be a person, firm or corporation whose principal business is the sale of farm, dairy, orchard or garden produce on account of the shipper or consignor, or solicit consignments of any character. No person shall sell or receive or solicit consignments, of such commodities for sale, on commission without first obtaining a license from the State Railroad Commission to carry on the business of a commission merchant and executing and filing with the Secretary of State a bond to the state for the benefit of his consignors ; the amount of the bond to be fixed and sureties to be approved by the commission, who may increase or reduce the amount of the bond from time to time.”

The complaint herein traverses the several classes of businesses enumerated in the part of the statute quoted, except the receiving or soliciting of consignments of any farm, dairy, orchard or garden produce for sale upon commission.

This specification is by the statute made a prohibited class of business, separate and distinct from the sale of such commodities; and, not having been denied in the complaint, the facts stated therein are insufficient to authorize equitable interference. Such being the case, no error was committed in sustaining the demurrer. The decree should therefore be affirmed, and it is so ordered. Affirmed.