M. BCHANI>LER BOTTLING CO. 11. WELCH.
561
shall interpose, and confer upon the state the right to regulate this matter, loyalty to the supreme law of the land, and the obligation of good citizenship, demand that the state and its ministerial officers should forbear to provoke the for the federal judiciary to assert their jurisdiction to see that the federal constitution is recognized and obeyed. The most august thing in government is law. and the higheet duty of citizenship is obedience to and respect for the law. My opinion is that sufficient appears to entitle the petitioner to the temporary writ of injunction. FOSTER,
J' t concurs.
M.
SCHANDLER BOTTLING
Co.
1I.WELCHetal.
(Oircuit 001£rt, D: Kansas. Jl11y 18, 1890.) , IN'1'OXIOATING'LiQuORS-SALBS IN ORIGINAL PACXAGBS-CRnnNAL PROSEOUTION-INJUNC!I'lON,. ' ,
Though a court of equity has no jurisdiction to enjoin purely criminal proceedings, injunction will lie against proceedings by a prosecuting attorney to prevent a non-resident importer from llelling" intoxicating liquors in the inai packagell in which they Were imported, under a ,sta1;e law whicl1. ,in so far as It prohibits lluch sales, is in violation of the interstate commerce clause 'of the federal cOllstitution, since such proceedings are an interference with complainant's property rights \luder the constitution, tor Which, as provided by Rev. St. V. 5 1979, an action at law or suit in equity may be maintained.
e.
In Equity. Bill for injunction. The complainant is u corporation of the state of Missouri. The respondents are residents of the state of Kansas. The respondent Welch is the acting county attorney of Shawnee county, in Kansas, and the respondent Wilkerson is the 'acting' sheriff of said county. The bill alleges that complainant is engaged in the business of a wholesale and reta.illiquor dealer at the City of Kansas, in Missouri; that it owns and has in possession a large amount of whiskies, wines, and beer, , and other articles of merchandise, in said last-named city, and sells the same to various customers in other states as merchantable commodities; that on or about the month of May, 1890, it established an agency at the city of Topeka, in Kansas, for the sale of such articles, and engaged and employed as agents, at said place, Carl Jockneck and J. R. Deisher, to receive and sell for it at said point such merchandise as it might ship to them for said purpose; that said agents were and are also citizens resident of the state of Missouri; that in establishing such agency the complainant invested a large sum of money at said city of Topeka, and shipped to said agents large quantities of such liquors, wines, beer, etc., amounting to several thousand dollars; that said articles were shipped by express'and otherwise, at great expense, securely packed and sealed, in packages consisting of several hundred in number, each of which packages was securely boxed up, sealed, and numbered, in distinct, separate v.42F.no.11-86
FEI;>ERALREPORTER,
vo1.42,
from Kansas City" Mo., thebueit\tlS/J point ,and of complainant, consigned to said agents, tQ:ba,teceivedby them, for· and on. behalf, of complainant, .in: thEloriginal .packages in which they so shipped, and not otherwise; and that said goods were ,bejng so sold by said agents in tbe original packl!.ge!\j,and not otherwise, ltsthe.y hl,tda right .todo under,the constitutiORQHhe United States,' ,Tpe that said respondents, afterthe said shipment of sai,d gqqds, ,beginnjpg of said agents .tp ,jlomake sales of the same, conspired' and confederated together to unlawfully oppress, impede, and obstruct the complainant and said agents in conducting said .aforesaid,and business, and to drive them out of the county prevent them from conducting said business therein; and, in pursuance of said conspiracy, the respondents, under the garb and color of their said offices, were to cause the arrest, imprisonment. and prosecution, of said agents,and, as often as they might be released.. fr?,p1 such arrests, they would·t!lnlSe'tluiirreariest anO' itilprisonn'lenWat1d i by exacting, or causing to be exorbitant and unr{lasonable bail, compel their confinement in jl1il; a'nd ,as' often 'discharged there'from by the writ of Coryu.sI,tO. ,prefer in diffe:rent, forln app,arently ;,ne:w ,f but,in effect, for s9 business seemof the. teJaw, well .knew ,under the laws and constitution of the said Welch,;C'lUlPJ,1 ,certain criminal proceedings to be instituted Iigainstthetn in .the district court of said arrested' ,by $aid and .Shawnee county',Ulider a bail-bond of $3,000 demanded and required of them, which bond was wholly unwarranted by the character of the alleged offense, oppressive, time, and as: a part of said conspl:racyapd crimiplll proceeding, they caused, to be: filed and instituted agents au injunction suit to preventtbem from selling said as they had a right to 'do under the constitution of the United States. That !\Ilid order of injunction was served on said agents at the sl!:m!l time they were so placed under arrest in sliid cri,:ninal proceedings, which said order was issued without any previous notice to said.agents, 'ol'opportunity to be heard thereon. Thereupon, said agents applied to the United States circuit court fQr their discharge from said arrest under the writ of habeas corp1l.$j and, after full hearing anil. investigation of the law and facts,said United States court did discharge them under such .. That said officers, under the garb and color of their said offices, propose and threaten to continue to so harass and vex said agents with like trumped-up charges and prosecutions for continuing to so seUsuch goods.in the original packages in which they were imported a.s aforesaid, The object of said prosecutions and persecutions is to pre,and complainant fl'Om pursuing. said lawful business in , saidcounty,apdto break up its trade, anddesUoy, its property. That saiq charges and;, prosecutions l1-reto be made before'thesaid district court ofShawne.ecounty, on the, ground and under the pret6xtthat said acts of Bliid agents .are in violation of what is known as the "Prohibitory ,
as
M. SCHANDLERBOTTLll\G CO. II.
WELCH.
563
Liquor Law of the State of Kansas," and is in fact designed to prevent the importation of such goods into the state from other states, and ,their sale in the original pa<lkagesiri. which they are shipped. ' The prayer of the bill is for a provisional injunction temporarily restraining and prohibiting respondents, their deputies, assistants, etc., from instituting or prosecuting civil or criminal actions against said agents, and preventing them from receiving and selling such goods so shipped to them in the original packages to such persons as may apply for the same, and from molesting them in their said business so conducted, and for a perpetual injunction, if, upon a full hearing, the facts shall so appear as alleged, and for all proper relief. At the preliminary hearing of this application the respondents appeared, and demurred generally to the bill. The cause was heard by Judge PHILIPS, of the western district of Missouri, under order of the circuit jUQ,ge, in conjunction with ,Judge FOSTER. E. Hagan, for complainant. L. B. Kellogg, Atty. Gen., for defendants. PHILIPS,J., (after stating tite facts as above.) The objection made to this proceedillg, that it is practically a suit against the state, has been considered hyus in the case of Tuchman v. Welch, ante, 548, in the opinion just filed. See, also, Hagood v. Southern, 117 U. S. 70,6 Sup. Ct. Rep. 608. The remaining question, not disposed of in that discussion, is whether or not this suit is obnoxious to the objection that a court of equity never extends its jurisdiction to the enjoining of criminal proceedings. This is, unquestionably, a well-settled general rule of equity jurisprudence. Railway Co.v. Kansas Oity, 29 Mo. App. 89, and we. cit. This question underwtmt extended discussion in Re Sawyer, 124 U. S. 200, 8 Sup. Ct. Rep. 482. Mr. Justice GRAY, who delivered the majority opinion, said, inter alia: co The office and jurisdiction of a court of equity, unleslil enlarged by express statute, arfl limited to the protection of rights of property. It has no jurJsdiction ovel' the prosecution, the punishrnpnt. or the pardon of crimes or misdempanors. '" '" '" To assume such a jurisdiction. or to sustain a bill in equity to restrain or relieve against proceedings for the punishment of offenses, '" '" '" is to invade the domain of the courts of common law." . Without stopping here to consider whether this general rule is limited to criminal proceedings alrel;ldy begun in the court of criminal jurisdie-: tion, it iss)lfficient to the matter in hand to say, as indicated in the quotation above made, that the rule has its exceptions. One of these is where a threatened criminal proceeding is hostile, vexatious, and unwarranted, and involves the wanton destruction of or injury to property interests of the accused; and especially so under circumstances where, if permitted to proceed, the party injured would have no adequate remedy at la", Mr. Justice GRAY recognizes this. He quotes III. 237: ' "It is elementary law that the SUbject-matter of the jurisdiction of a court of chancery is civil property. ,The court is conversant only with questions of
564
FEDERAL REPORTER,
vol. 42.
property. and the maintenance Qf'civil rights. Injury topropert} ",hether oot1\$1 or prospective, is the foundation on which the jurisdiction The CloUrt has no jurisdiction in matters merely or merely immoral. which do not affect any right to property." . Again he says: "No question of property is suggested in the allegation of matters of fact in .the bill, or would be involved in any decree that tbe court could make thereon." So Mr. Justice FIELD, in his concurring opinion, said: ; ,"In many cases, proceedings criminal in their character, .taken by individuals or organized bodies of men, tending, if carried out, to despoil one of his pr9perty or other rights, may be enjoined by a cou rt of equity." ': In the case of bmpe:ror of Austria v. Day, 3 De Gex, F. & J. 217, Lord Justice TURNER observed: ' "I agree that the jurisdiction of this coilrtin a case of this natu re rests upon injury to property, actual or prospective, and that this court has no jurisdiction to prevent the commissioli of merely illegal, and which do not affect any right of property; but I think there are here rights of property quite sufficient to found jurisdiction in this court. I do not agree to the proposition that there is no remedy in th,is'court 'if there be no remedy at law,and still less do I agree to the proposition that tbis court is bound to send a matter of tbis description to be tried at 'law. The highest authority upon the jurisdiction .of this cOli,rt, in enumerating the cases to which the jUrIsdiction extends, mentions cases of this class, .where .the principles of law by which the ordinary conrts are guidedgive no right, but, UpO!1 the principles of uni \'ersal j usUce. the judicial power is necessary to prevent a wrong, and the positive law is silent." .In Spinning 00. v. Riley. L,. R. 6 Eq. 558, the said: "The jurisdiction of this court is to protect property; and itwill interfere by injunction to stay any proceedings, whether connected withcri.me or not, which gb to the itl1mediate, or tend to the ultimate, destruction of property, or to make it less valuable for use or occupation." In Lottery 00. v.. Jilitzpatrick, 3 W ocids, 222, the CQurt was. called upon, in the its equity jurisdiction, to meet and counteract the of the state, through unfriendly and hostile legislation, to drive the obnoxious concern and its businessfroDl' the state, through' penal enactments and criminal prosecutions. The: court says: "Nor, is there anythingi!) the fact that the defendant is an officer, and supposes he is performing an otlicial duty, which would constitute areason fOt; withijolding the exercise of this jurisdiction., The is conservatory, 81,1.d is llmployed where a wrong is attempted nnder colqrof law, 'and w.ithan appearance of right, to intlid permanent and incurable mischil'f. The reme-' dies of law are not generally adequate to defend persons from violence and lawlessness. The unoffending citizen is entitled to be protected by the state through its punitive laws. .But when the state itself elTs, and its legislature alaw constantly recurring penaltiesnpon all the ofticllrs aud ageuts of a gi ves rise to a question of the rightfulness of the hw, viewed. in its operation' upon franchises,-upon property; for. since a. corporation is an artificial being. and can on I>' act through its representatives, any law \vhich sanction, every conceivable corporate act of officerii alid !'.saall ,tile value and existence. of itspriyileges, and.Jfthe law'
M. SCHANDLER BOTTLING CO. tI. WELCH.
565
be unauthorized, its ,operation may be restrained, and property whichi,s 'by the constitution exempted from this power may be protected by the proper process of the court$." Again he says: "The officers of every state of the United states, whether executive or judicial, owe to the constitution of the United States a fealty and homHge and obedience SUl'passing that which they owe to their constituents of the state. The people of the United States, composed of all the penples of the separate states, have adopted the constitution, and have ordained that the terms of that instrument, and the laws and treaties made pursqant to it, shall have obedience, anything in the constitution and laws of any state to the contrary notwithstanding." Citing Gibbons v. Ogden, 9 Wheat. 1; Dodge v. Woolsey, 18 How. 331. In the latter case, the circuit of the United States for the district of Ohio having granted an injunction upon the office'l,'s of the state from enforcing the state enactments, the supreme cO,urt ,said: . "Thejnrisdiction of chancery extends to inquire into and enjoin. as the case may req\lire to be done, any proceedings by individuals, in Whatever character they may profess to, act, if the subject of complaint is an impllted violation 'oia 'Corporate franchise, or a denial of a right gri>wing out oiIt, for which there is not an adequate remedy at law." , , . So in 08born v. Bank, 9 Wheat. 738, the court "The counsel for applellants are too intelligent, and have too much self'respect, to pretend that a void act can afford any protection to officers to ex·ecute it. The circuit court 01 the United States has jnrisdiction of a bill ;brought by the United States for the purpose of protecting the bank in the .exercise of its franchises which are threatel!edto be in:vaded under the uncon;/ltitutionallaws of the state." And in that case the order of restraint went against the officers threat.ening the injury to the franchise. It is scarcely needful to be obsE-rved that the corirts would not any the less extend their protecting .arm over the property rights of the individ ual .citizen than over those ofa corporation. . In Litle-Stock,eic., A88'nv. CresclYfl,t City, etc., 1 Abb. (U. S.) 388·406, Mr. Justice BRADLEY, while, as shown in the opinion in 'l'uchman v. Welch, supra, declining to restrain proceedings already instituted in the .state court, nnder his conception of the civil rights bill as it then existed, Jnot obviating the applicability of section 720, Rev. St. U. S., proceeded to enjoin and restrain the delendants "from commencing or prosecuting .any other suits UpOll their act of incorporation than such as are now pending against the said complainants, or either of them, from doing or performing ll-ny act expressed in the declarative clause of this decree, or from suing for,any fine or penalty imposed.in said act, or from doing or performing any of the acts aforesaid, and from interfering with them in the prosecution of their lawful occupations as live-stockdealers .ers, or as vendors of animal food or animals." The declared object and purpose of the respondent.sis to ohstructand prevent the right of complainant and its agents to pursue a lawful avoca-, 11ion jl} .between th.e. In short, in)nten.t;.
566'
FEDERAV REPORTER,vol.
42.
saidhusiness,and expel his prop· the state for mercantne purposes, from the state. Certainly, such condition of affairs call into activity the equity powers of the court to protect the property rights of the complainant, secured to him·..b y tbeeonstitution olthe United States. Such an emergency, we thinkris: provided for by section 1979, Rev. St. U. S., which declares that...;.,;.: i, " , ..Every PEll'SOtl, who" under ¢olor of any statute, ordinance, regulation, cusstate or, subjects, or causes t9 be subjected, any tom. or citizen the jurisdiction thereof, to the deprlvatfott of any right!l,:privileges, or immunities,secured by the constitution aild' ia:wS,shal1 belilible to the party injured in ari' action at law, luit in equity, or other proper proceeding. for redress. It Nothing,: or:course, 'said or enjoined, if! to be construed as extending to at(y prosecution to which the complainant or its agents may be lawfully subject for selling sucb articles otherwise than as importers, in the original packages inwpichthey may be imported, within the protecting termso( the federal constitution, as interpreted by the supreme '. With this limitation, the temporary writ of court ofthe qniWd injunction sh6u1d be granted. FOSTER,
J.,
WOOlSTEIN
et at.
tl. WELCH.
(C4rcuttOowrt, D. Kamas. July 18, 1890.)
Persons have been indicted 101' the sale 01 intoxicating liquors ia the original packages ib which they were imported, and separately enjoined from making such sales, cannot maintain a joint suit for Ilin injunction against such proceedings, though they are, respectively, the agent and subagent of the same im, ' , ll', ,
In Equity., ,Bill for injunction. The complainantM. Wollstein is a citizen of the state of Missouri, engaged there ih the business of a wholesale liquor dealer, and since the 13th day ofMay last past has been engaged in shippingfronl said state, into the state: of KanllRs,such liquors, in orig;inal packages. Said liquors were shipped to Topeka, Kan., consigned to the co-complainant Sichel', as his agent, to sell the Same in the original' packages in which they were so shipped. SaidSicher, being empowered by said principal to employ'any subagent, to 'assist in and about the said business, did on the 20th.day of May;>.1'$90, employ the other complainant, Schmidt, as such subagent or assistant. The said Sicher and: the said subagent received said packages, and proceeded to sell the slbne at Topeka. On the 28th day of May, 1890, the respondent, Welch, acting as county attorney,of Shawnee county, in which said sales were being made, caused