
    REMEDY OF ONE ACCUSED UNDER. THE JONES LAW.
    [Common Pleas Court of Greene County.]
    H. E. Schmidt et al v. William F. Brennan et al.
    Decided, May, 1906.
    
      Seizures — Under the Jones Daw — Discretion of Officials can not be Interfered with by Injunction — Remedy of Defendant — Pleading.
    1. A court of equity will not undertake to determine in advance whether or not vessels and fixtures are being used for the unlawful sale ot intoxicating liquor, as alleged by municipal officers who are about to seize and destroy them under authority found in 98 Ohio Laws, page 12.
    2. An allegation that an act is unlawful does not make it unlawful, and a demurrer to a petition containing such an allegation does not admit the truth of the allegation in the sense that it thereupon becomes the duty of the court to act upon the petition as though its truth were established.
    3. The proper remedy l'or one unlawfully arrested and whose vessels and fixtures are about to be seized under this act, is in a petition in error, or a suit against the officials and their bondsmen for damages, or for a writ of habeas corpus, and not in an action for an injunction.
   Belden, J.

This action is before the court for determination of a demurrer filed by the defendants to the petition of the plaintiffs, on the ground that the allegations set forth in the petition do not constitute a cause of action.

The plaintiffs in their petition set out that the defendant, William F. Brennan, is the duly elected, qualified and acting mayor of the city of Xenia, in this county, a municipal corporation, and that the other defendants, E. M. Smith, William B. McAllister, Edward Williams and Michael Graham are duly appointed, qualified and acting officers and members of the police force of said city.

- It is further averred that the plaintiffs are the owners of a certain four-story brick building in said city, together with the ground on which the same is located, and the plumbing, and all other fixtures in said building. That the above named defendants maliciously and unlawfully threaten and are about to, unless enjoined from so doing by this court, forcibly enter upon said property, and under the false pretense that a certain room therein is used for the unlawful sale of intoxicating liquors as a beverage, break, destroy, damage, injure and carry away a portion of said building and fixtures, destroy and injure the floor tiling and plumbing, and damage and destroy the fixtures attached to the freehold, to the great and irreparable injury of the plaintiffs, and against which they have no adequate remedy at law.

It is further alleged that each and all of said defendants named are execution proof, and no damages could be collected from them, or either of them; and that the acts named herein and injuries contemplated by defendants, will be a permanent injury to the freehold and property of these plaintiffs. That no part of said property is used for the unlawful sale of intoxicating liquors as a beverage,’ and that the property so about to be forcibly seized, damaged and destroyed, does n.ot consist in whole or in part of any vessel, or furniture used for the sale of intoxicating liquors as a beverage. That said defendants are about to act without law or authority, and arbitrarily to injure and destroy the plaintiffs’ property.

Wherefore, the plaintiffs pray that the defendants, and their agents, servants and employes may be enjoined from injuring, destroying or carrying away any portion of plaintiffs’ freehold and fixtures, and that until the final hearing of this cause, they may be so restrained and enjoined, and plaintiffs pray for such other and further relief as they may be entitled to in law or equity.

A temporary restraining order was granted when the petition was filed.

No mention is made in this petition of the law under which the defendants act, or assume to act. But in the briefs filed by counsel reference is made to what is known as the “Jones law,” passed by the General Assembly of this state February 23, 1906, and found in Vol. 98 O. L., pp. 12 to 18, inclusive. That this law has something to do with the case is evident from the averments contained in the petition as to intoxicating liquors, vessels, etc.

Counsel for defendants claim that the demurrer should be sustained upon three grounds, namely:

1. That the court is without jurisdiction to enjoin the police department and the mayor from acting within their discretion in the enforcement of the law.

2. That the facts stated in the petition are not sufficient to warrant a court of equity in interfering.

3. That this court can not determine in an equity proceeding whether or not there is an unlawful sale of intoxicating liquors as a beverage.

Counsel for plaintiffs state in their brief that the constitutionality of the Jones law is not assailed, and that without violating the injunction, defendants may enter upon the real estate described in the petition, make diligent search, and, if any intoxicating liquor be found, seize it, together with any vessels containing it and any furniture kept for illegal selling, and that the defendants are enjoined merely from violating the limitations of their lawful powers by damaging the real estate of plaintiffs under a claim of right.

Several eases are cited on behalf of plaintiffs which support the doctrine that a court of chancery has jurisdiction to interfere by injunction when public officers are proceeding illegally or improperly under a claim of right, to do an act to the injury of others. Not one of the decisions cited, however, is to the effect that a criminal proceeding can be enjoined by a court of equity.

In my opinion, the first reason assigned on behalf of the demurrer is well taken.

“A municipal corporation being a political body, clothed with certain legislative and discretionary powers, equity is ordinarily averse to interfering by injunction with the exercise of those powers at the suit of a private citizen. And no principle of equity jurisprudence is better established than that courts of equity will not sit in review of the proceedings of subordinate political or municipal tribunals, and that where matters are left to the discretion of such bodies, the exercise of that discretion in good faith is conclusive, and will not, in the absence of fraud, be disturbed.” High on Injunctions, Section 1240 (2d Ed.).

It is sought by this petition to have this court determine in advance of any trial in the mayor’s court, that the vessels and fixtures in the building are not used for the unlawful .sale of intoxicating liquors. This would be the question for trial in the mayor’s court. The arrest of the plaintiffs and seizure of their property are matters within the discretion of the officials who are clothed by law with the duty of deciding whether or not there has been a violation of any statute law of this state; and the judge of a court of equity will not substitute his judgment for ■ the judgment of an official invested by the Legislature with authority to decide all questions of this nature.

“No court has jurisdiction to interfere with the public duties of any of the departments of the government, or to override the policy of the state; and a court of equity is without power to enjoin the exercise of the police powers given by law to the officers of a municipal corporation, so as to prevent such officers from preserving the public peace. Nor will an injunction issue to restrain an interference by the police authorities with the business of a liquor dealer by arresting him and his employes. If the arrests are illegal, habeas corpus and suits for damages afford him ample remedy.” Spelling on Extraordinary Relief, Section 628.

The allegation in his petition that the defendants are insolvent, is not sufficient to establish the -plaintiffs’ right to an injunction.

Under the law of this state all officials of municipal corporations are required to give bond for the faithful performance of their duties. Section 1536-997, Revised Statutes.

“The law presumes that public officers have faithfully performed all the duties of their offices, until it is otherwise made to appear.” Mitchell v. Treas. Franklin Co., 25 O. S., 143.

“Where the defendant is an officer who has given bond with sureties, it is not sufficient'to allege that he is insolvent in a suit to enjoin him from performing his official duties, but it must be alleged that his sureties are insolvent.” Wells v. Dayton, 11 Nev., 161.

In 'the case at bar it is not stated how valuable the property is which it is alleged the defendants are about to seize unlawfully. But it is not to be presumed that it is of such great value that the sureties upon the bonds of the officials could not respond' in damages so as to give adequate relief to the parties injured.

It also seems to this court that the facts stated in the petition are not sufficient to warrant a court of equity in interfering. It is alleged in behalf of the right to an injunction that the demurrer admits the truth of the petition — that defendants are acting maliciously, in violation of the law, and beyond the limits of their powers, and are about to injure and destroy property not specified as subject to seizure in any law, and property not used in violation of law.

An allegation that an act is unlawful is not sufficient. In the case of Rutter v. Henry, 46 O. S., 272, our Supreme Court has said:

“It is assumed by counsel for defendant that the plaintiff admitted, by not'denying, that the horse was ‘unlawfully'running at large, ’ as it is alleged in the answer. This view magnifies the legal significance of this averment. It means no more than that the horse was running at large — whatever that is. The meaning is not enlarged by the epithet employed. It involves no issuable fact. Whether it was unlawfully running at large depends upon the facts, and these are not stated. Beyond the fact that the horse was ‘at large,’ the averment is a mere conclusion of the pleader. ’ ’
“The use of the words ‘unlawfully,’ ‘maliciously,’ and ‘wantonly’ adds no force to the complaint. In considering the complaint and in determining the rights of the parties, the court looks to the nature of the acts alleged, and if such acts are lawful within themselves, such epithets are of no avail.” Tyner v. People’s Gas Co., 131 Ind., 408. Cited, 10 E. P. & P., 956, note.
‘ ‘ A court of chancery will not interfere to prevent a mere trespass. Where adequate compensation can be had in an action at law, there is no ground to justify the interposition of a court of equity.” Bank v. Debolt, 1 O. S., 592; McCoy v. Chillicothe, 3 Ohio, 371; Ross v. Page, 6 Ohio, 166.

It is true, in later decisions of our Supreme Court they have held that repeated acts of trespass which in time would ripen into prescriptive right will entitle the aggrieved party to an injunction. But it is not claimed in- this petition that there will be any repeated acts of trespass.

The third point made in behalf of the demurrer is also, in my opinion, well taken. If every one who is arrested, or whose property is seized by an official, can apply to a court of chancery for an injunction against the official, alleging that he is innocent, our courts would soon be clogged with cases of this kind.

Writs of habeas corpus, petitions in error and suits against the officials and their bondsmen for damages afford, in my judgment, ample remedy to any person who is injured by an unlawful arrest or seizure of property.

‘ ‘ The ground upon which the interference of a court of equity is invoked is, that the mischief to complainant’s property is irreparable, and that actions at law furnish no adequate relief.
“While this is an admitted ground of equity jurisdiction, courts of chancery will carefully abstain from interference, where the injury will support an action at law, unless the party seeking such aid brings himself within the clear principle of equitable relief. But, in cases, of this sort, equity will not interfere until the rights and the facts have been established beyond doubt at law.” McCord v. Hunt, 12 Ohio, 387-389.

“A court of equity will not enjoin criminal proceedings.” Bispham’s Equity, Section 412, p. 470; Section 424, p. 480 (4th Ed.)

“A court of equity is not as a general thing a proper place to enforce the provisions of the criminal law.” Boiler & Engine Co. v. Benner, 14 L. D., 357-361.

“An injunction which would operate as a restraint upon the governmental and discretionary powers of the municipal authorities can not be allowed.” Schlemmer v. Steinman, 2 N. P. — • N. S., 293, 298.

“Courts of equity are governed by fixed rules equally with courts of law, and there is no rule or principle of equity that warrants the interference by injunction to restrain the exercise of a function of a co-ordinate branch of the government.” Railway Co. v. Vickery, 11 Dec., 629.

For the reasons above stated, the demurrer is sustained, and the temporary restraining order heretofore allowed vacated and dissolved.

H. G. Armstrong and Sprigg, Fitzgerald & Sprigg, for plaintiffs.

W. L. Miller, for defendants.

If plaintiffs desire to amend, .they may have leave to do so and apply for a new restraining order. If appeal is desired, bond will be fixed at the sum of one hundred ($100) dollars.  