Opinion
No. 28226
Decided December 24, 1940.
Injunction — Criminal prosecution not restrained, when — Adequate remedy by defense to criminal charge — Operation of lottery or scheme of chance — "Bank night."
Injunction will not lie to restrain criminal prosecution under a constitutional and valid statute making it an offense to carry on a lottery or scheme of chance where the person seeking the injunction has a full, adequate and complete remedy in the defense he may make to the charge of violating the statute.
APPEAL from the Court of Appeals of Miami county.
The Troy Amusement Company, a corporation, on June 27, 1939, began an action in injunction in the Court of Common Pleas of Miami county, Ohio, against Andrew Attenweiler, Michael E. Norris, George Hollopeter, justice of the peace in and for Newberry township, and Frank O'Roark, constable in and for such township, as defendants, seeking to enjoin defendants Hollopeter and O'Roark from molesting or interfering with the business of the plaintiff and from making any searches or seizures of any equipment used in connection with the operation of "bank night" in plaintiff's motion picture theater, to enjoin defendant Attenweiler from filing any further affidavits for such searches of premises or seizures of equipment of the plaintiff and to enjoin the defendant Norris from advising, encouraging, instituting or causing to be instituted any further affidavits of that nature.
Plaintiff sets out in its petition the manner of operating "bank night" in its theater. It alleges that "bank night" is not a lottery but a legitimate part of the business of operating a motion picture theater and is held for the purpose of creating good will among the patrons of the theater.
Plaintiff further avers that at the start of "bank night" over three years ago it placed in the lobby of its theater in Troy, Ohio, known as the "Mayflower," a registration book in which every adult member of the public was invited to register his name so as "to be eligible to participate in winning the bank account given each week"; that no charge of any kind was ever made for the privilege of registering in this book and every person who registered was given a number which has remained his as long as "bank night" has continued; that each week a ticket bearing a number identical with one in the registration book was withdrawn from a wheel containing the numbers of all patrons who had ever registered at the theater and the person having the number drawn was then required to be present within three minutes after the announcement of the number and claim the bank account; that such announcement was made inside and outside the theater and if the person who held the number announced was outside he was allowed to enter the theater and make the claim within the allotted three minutes; that no charge or fee was ever exacted for the privilege of participating in the drawing; and that the only condition attached to the drawing was that the person whose number was called must appear within the allotted time and claim the bank account.
Plaintiff further alleges that he has been subjected to vexatious and harassing prosecution and litigation by the defendant Attenweiler and his attorney, defendant Norris, which has injured plaintiff's business; and that the defendant Attenweiler filed a civil action to recover admissions paid by him to the plaintiff together with punitive damages which action resulted in a verdict for the defendant, plaintiff herein.
The petition also sets forth the following: "Plaintiff further says that said defendant, Andrew Attenweiler, on the tenth day of June 1939 filed an affidavit before J.D. Boak, mayor of Troy, for the arrest of Christian F. Pfister, manager of the Troy Amusement Company, claiming therein that said Christian F. Pfister, as manager of said company, was guilty of running a lottery and gambling device known as 'bank night.' That on the twenty-sixth day of June 1939 said criminal action was set for preliminary hearing before said J.D. Boak, mayor, at which time said Christian F. Pfister plead not guilty, waived preliminary examination and was bound over to the grand jury in Miami county, Ohio, which matter is now pending in the Common Pleas Court of this county.
"That at said hearing before J.D. Boak on the twenty-sixth day of June 1939, said Andrew Attenweiler filed an affidavit for a search warrant. That upon hearing before J.D. Boak, said mayor refused to issue such warrant. Thereafter on the same day and date, said Andrew Attenweiler appeared before George Hollopeter, justice of the peace in and for Newberry township, Miami county, Ohio, and filed another affidavit for a search warrant against the plaintiff as well as a warrant for the arrest of Christian F. Pfister, manager of said plaintiff company. Said defendant, Frank O'Roark, constable in and for Newberry township, came and entered the place of business of the plaintiff at about 9:30 p. m., on the night of June twenty-sixth, while said theater was operating with a large number of patrons present, and sought to arrest Christian F. Pfister, the manager of said theater, on said warrant and to search said Mayflower theater, owned by this plaintiff, and seize all equipment and utensils used in connection with the operation of 'bank night.' That said search warrant was unsigned and therefore was not enforced by said defendant constable, nor was Christian F. Pfister at that time arrested, but plaintiff says that said search warrant and warrant for arrest will be corrected and will be enforced against this plaintiff unless restrained by this court."
The petition proper concludes with the following allegations:
"That the only purpose of the defendant, Andrew Attenweiler, in the filing of the numerous affidavits for arrest and affidavits for search warrant and seizure and the harassing and instituting of vexatious litigation is solely to injure plaintiff's business, good will and reputation. That the loss of business to this plaintiff if said searches and seizures are continued, said utensils and equipment taken and retained, and numerous affidavits filed will amount to thousands of dollars and said defendant, Andrew Attenweiler, does not have sufficient property to compensate plaintiff for its said damages in the event the courts determine that said affidavits were wrongfully filed, and plaintiff, therefore, has no adequate remedy at law for said injuries. That unless said defendant, Andrew Attenweiler, is restrained from the filing of further affidavits in any court on his said claim that 'bank night' is a lottery, and if said defendants, George Hollopeter and Frank O'Roark, are not enjoined from the search and seizure of said equipment and utensils belonging to said plaintiff and used in connection with 'bank night,' said plaintiff's business will be greatly and irreparably damaged, and no adequate remedy at law will be afforded to plaintiff.
"Plaintiff further says that the defendant, Michael E. Norris, has acted as attorney for the said Andrew Attenweiler through all of said litigation herein detailed, and as such attorney has advised and encouraged said litigation for the sole purpose of vexing, harassing and causing injury to the business of said plaintiff, and has further threatened to and will, unless restrained, continue to issue or cause to be issued through himself or other sources warrants for searches and seizures to the irreparable damage and injury to this plaintiff, for which it has no adequate remedy at law."
These allegations of fact are followed by a prayer for injunction as heretofore indicated.
The Court of Common Pleas sustained the demurrer upon the ground that the petition failed to state facts sufficient to entitle plaintiff to the relief prayed for, and dissolved the temporary restraining order theretofore allowed. The plaintiff not desiring to plead further, final judgment was entered for the defendants and the petition was dismissed.
On appeal to the Court of Appeals on questions of law and fact, that court entered a like judgment.
In the courts below written opinions were handed down, which disclose that in each instance the decision was placed upon the ground that "bank night," as shown to be operated by the allegations of plaintiff's petition, was a lottery or scheme of chance.
This court allowed a motion to certify the record.
Messrs. Faust, Faust Faust, Messrs. Shipman Shipman and Messrs. Rocker Schwartz, for appellant.
Mr. Michael E. Norris, for appellees.
The demurrer raises the question of the right of plaintiff to an injunction to restrain criminal prosecutions for conducting "bank night" in its theater. The plaintiff maintains it is entitled to injunctive relief on the facts alleged in the petition for two reasons: (1) "Bank night" as carried on prior to the commencement of its injunction suit is lawful and not a lottery or scheme of chance within the meaning of Sections 13063 and 13064, General Code, which make the selling of tickets in, and the promoting of, schemes of chance punishable by fine or imprisonment, or both; and (2) the acts of the defendants causing civil and criminal actions to be instituted against plaintiff and its manager amount to vexatious litigation.
It is a general rule that a court of equity will not interfere by injunction to prevent the enforcement of criminal statutes at the instance of an alleged law violator. 1 High on Injunctions (4 Ed.), 85, Section 68. The legitimate place for the trial of criminal cases is in the courts established for that purpose and courts of equity will not oust the proper forum by drawing to themselves litigation which will prevent criminal courts from exercising their jurisdiction. So long as the defense which may be made in impending criminal prosecution is adequate to protect the rights of the accused, equitable relief by injunction is not available to him.
This principle has found especial application in actions to enjoin prosecution for violation of penal laws prohibiting lotteries and schemes of chance. Meadville Park Theatre Corp. v. Mook, 337 Pa. 21, 10 A.2d 437; Harvie v. Heise, Sheriff, 50 S.C. 277, 148 S.E. 66; Barkley, Dist, Atty., v. Conklin (Tex.Civ.App.), 101 S.W.2d 405; Earhart v. Young, Sheriff, 174 Tenn. 198, 124 S.W.2d 693; Wellston Kennel Club v. Castlen, Pros. Atty., 331 Mo., 798, 55 S.W.2d 288. In each of the cases cited injunction was denied.
In this jurisdiction an exception to the general rule is recognized in those cases in which public authorities or private persons seek to enforce unconstitutional and invalid legislation whereby vested property rights will be interfered with to the extent of causing irreparable injury for which there is no adequate remedy at law. Olds v. Klotz, 131 Ohio St. 447, 3 N.E.2d 371.
The plaintiff makes no claim that the statutes forbidding lotteries and schemes of chance are unconstitutional and void; nor do the facts pleaded show that vested property rights would be unlawfully interfered with.
What is the rule with respect to enjoining prosecution under a valid statute on the ground that the litigation is instituted for the sole purpose of harassing and vexing a person?
By token of what has been previously stated property rights will be protected by injunction against vexatious litigation arising from prosecutions under an invalid criminal statute. If injunction lies against one prosecution, a fortiori, like remedy will lie against repeated prosecutions. But where the criminal statute is valid, injunction will not lie against prosecutions merely on the ground that they are vexatious. A multiplicity of prosecutions does not of itself warrant interference in equity, nor does the threat of repeated prosecutions. Sullivan v. San Francisco Gas Electric Co., 148 Cal. 368, 83 P. 156; City of Douglas v. South Georgia Grocery Co., 178 Ga. 657, 174 S.E. 127. Moreover insolvency of a party instigating prosecution will never warrant the interposition of equity to restrain the administration of criminal justice. But insolvency may be of makeweight importance when other elements coupled with such financial inability justify relief as against harassing prosecutions under a void law. See 28 American Jurisprudence, 255, Section 58, and Walsh on Equity, 318, Section 63.
As long as the criminal statute, under which the prosecutions are instituted are enforcible, the protection of personal rights lies in the guaranties surrounding the defense of an accused person and in his action at law for damages for wrongful prosecution, arrest or imprisonment. Sullivan v. San Francisco Gas Electric Co., supra. See, also, 14 A. L. R., annotation, pages 296 and 300. Even an innocent person thus finds protection in the normal processes of the courts, without the intervention of chancery. At any rate the allegations of the petition herein do not show harassment which warrants the granting of an injunction. It does not even appear from the pleading that a single criminal prosecution has been carried to a conclusion on the merits.
The guilt or innocence of the plaintiff, its officers and agents, in connection with the operation of "bank night" cannot be determined in this action. The plaintiff and those acting in its behalf must await a test in the criminal courts since the facts alleged in the petition do not warrant chancery in stepping in to prevent the administration of criminal justice in the ordinary and usual way.
Solely for the reason that the remedy by injunction will not lie, this court holds that the Court of Appeals did not err in sustaining the demurrer, dissolving the restraining order and dismissing the petition.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TURNER, MATTHIAS and HART, JJ., concur.
It is the opinion of the writer that the acts, with the commission of which plaintiff is charged in the criminal prosecutions herein complained of, do not come within the provisions of Sections 13063 and 13064, General Code.
The facts alleged in the petition, which for the purpose of the demurrer are to be treated as true, convince the writer that the criminal proceedings are vexatious and threaten destruction of and irreparable injury to plaintiff's vested property rights, for the redress of which his remedy at law is entirely inadequate. In such case, equity should intervene and exercise its preventive powers for the purpose of affording to plaintiff adequate protection against the threatened harm. The fact that the validity of the statutes invoked is not challenged is wholly immaterial where the offenses charged do not come thereunder.
A writ of injunction should have been issued and the judgment of the Court of Appeals should be reversed.