People ex rel. L'Abbe v. District Court

Per Cubiam.

Mary Henderson, president of the Lead ville Women’s Christian Temperance Union, as such president, and for herself as an individual, and all others similarly situated, instituted an action in the district court of Lake county against G. A. L’Abbe and some forty others, to restrain gambling .in the city of Leadville. The grounds upon which she predicates her right to this relief are, in substance as follows:

*388 That she is a citizen and resident of the city, and a property owner therein, and is interested in the moral, material and financial welfare of said city; that she is the mother of two boys now reaching manhood, and is interested in their moral welfare; that she is president of the Leadville branch of the Women’s Christian Temperance Union, an organization having for its object, among other things, the preservation and protection of the morals and character of the people of the city of Leadville; that said organization has a reading room in said city, and that the unlawful practices complained of are being committed within a few doors of its reading room; that the population of said city is composed of men, women and children, aggregating about fifteen thousand; that it is to her interest that said city be made, so far as possible, a peaceable, law loving and order abiding comnyinity, to the end that the husbands and fathers may not be led astray by the unlawful devices and practices carried on by the defendants, and that her moral and financial interests may be protected; that the defendants are the owners, and engaged in the operation, of gambling rooms at various localities in the city, used for the purpose of gambling openly, in direct violation of the statutes .of the state of Colorado, and to the detriment of the well-being and good order, and to the deterioration of the moral tone, of said community, and the detriment and destruction of plaintiff’s financial and moral interests ; that the sheriff of Lake county, the district attorney of the fifth judicial district, and the police, and other city officers, in violation of their official duty refuse to interfere with such gambling, or in any manner enforce the laws of the state of Colorado, or the ordinances of the city of Leadville, relating thereto; that by reason thereof, the plaintiff and all other good citizens are without any remedy at law, and are obliged to stand by and see their property depreciate, and the morals of the community constantly deteriorate by reason of the lawless acts of defendants ; that the gambling complained of, and the renting of houses for such purposes, constitutes a common nuisance, and one which *389 materially injures the public, and this plaintiff’s special interests as well, and is being carried on in the immediate vicinity of where plaintiff resides and lives ; that the order and well-being of the community, and the protection of the lives and property of its good citizens, imperatively demand that said gambling practices shall at once be stopped, and the common nuisance of gambling be abated in said city; and’ to this end, invokes the equitable interposition of the court.

Upon the filing of the complaint, a temporary injunction was issued, ex parte. A demurrer to the complaint was interposed and overruled, and a motion to dissolve the injunction denied; whereupon the relators applied to this court for a writ of prohibition to restrain respondents from further proceeding with the case. The respondents resist the application upon the ground that the district court, having jurisdiction in equity in a proper case, to enjoin the commission of a criminal offense, and the complaint attempting to present such a case, its sufficiency cannot be inquired into in this proceeding ; and the question as to whether or not the court below erred in granting, or refusing to dissolve, the writ, can only be determined on writ of error, after final judgment is rendered in the cause.

The logic of this contention .is, that because the district court is vested with jurisdiction to issue injunctions, its right to exercise such power in a particular case cannot be inquired info on an application for a writ of prohibition, or its action interfered with except on appeal or by writ of error, notwithstanding it clearly appears from the facts alleged that no grounds, for equitable interference existed. To this we cannot agree. ( While it is undoubtedly true that a court of equity has jurisdiction by injunction to prevent the violation of public law when necessary to prevent an irreparable injury to personal or property rights, it is equally true that it is not within its jurisdiction to prevent a criminal act, merely because it is criminal, and when it in no way violates a property dr-civil right t and before such jurisdiction can be exercised, *390 it should be made to appear, from the facts and circumstances of the particular case, that it is one in which the equitable interposition of the court may be properly and legitimately invoked; and in the absence of such a showing, the court has no authority to hear and determine that particular case. As was said by this court in Bassick M. Co. v. Schoolfield, 10 Colo. 46:

“ Jurisdiction in the court is power to hear and determine the particular case involved. If this power to hear and determine the particular case does not exist in the court in point of law, then there can be no jurisdiction in the case.”

If, therefore, it appears upon the face of the complaint itself, that the court below assumed unwarranted jurisdiction, or exceeded its legitimate powers, in issuing the injunction complained of, and the defendants are without any other speedy and adequate remedy through the ordinary modes prescribed by law, we entertain no doubt of our power and duty to compel the respondents to desist from further enforcing the order, or proceeding with the further consideration of the case, and to this end grant a writ of prohibition.

While the complaint is very voluminous, we think it fails to state a case cognizable in a court of equity. While it contains general averments that the plaintiff is the owner of property (without in any way describing its character or situation) and that the gambling complained of, and the renting of houses for that purpose, constitute a common nuisance which injures the public, and the plaintiff’s special interests as well, yet it fails to disclose any such special injury to herself as would justify her in maintaining this action; or any injury that is not common to the entire community; and, in fact, fails to show that the conduct of defendants in any way injures property or property rights. fBut, from its’ whole tenor and import, its manifest purpose is to restrain the commission of the crime of gambling in the city of Lead-ville, because of its corrupting and vicious influences, and its deteriorating effect upon the morals of the community. In other words, it is a plain attempt, through the aid of a court *391 of equity, to-preveurt — the—viol-atiou-ef—the-penal statutes-of -4he state, and to confer upon that court the administration of the criminal lawjjsolely because the sworn officers neglect or refuse to perform their duty in this regard. The failure of these officers to perform their duty constitutes no ground for the interference of a court of equity. As was said in State v. Patterson, 14 Texas Civil App. Rep. 465, a case also involving the right of a court of equity to restrain the crime of gambling:

“ That the law against this offense is not enforced and observed is no ground for the interposition of a court of equity, for, as has been observed, such a court has no jurisdiction to restrain the commission of crime, nor to enforce moral obligations or the performance of moral duties as such, nor can it rightfully interfere with the perfomance of an illegal act merely because it is illegal, in the absence of an injury to property or civil rights.”

The case presented by the complaint is one, if the facts alleged therein are true, where the defendants are guilty of a criminal offense pure and simple, for which the criminal law furnishes ample remedy, and the only one that courts are required to enforce. There are over forty defendants joined in an action, each charged with the separate and distinct offense of carrying on gambling, or renting houses for that purpose, at different localities in the city. Each is answerable only for his individual conduct, and yet he can obtain no final adjudication of lfis case, as these petitioners have elected to do upon demurrer to the complaint, but must suffer the delay incident to the mailing up of the issues and the trial of the cause as to the other defendants. It is therefore manifest that there is no other plain, speedy or adequate remedy that the petitioners can avail themselves of, and in our opinion, this is a proper ease for granting the relief prayed for Let the writ of prohibition issue accordingly.