State Board of Barber Examiners v. Blocker ( 1932 )

Gilbert, J.,

concurring specially. This concurrence is based upon the facts alleged in the petition. These facts must be construed most strongly against the pleader. The petition shows that the petitioners for the harsh remedy of injunction have not been molested in any way, either as to their person or property. The suit is instituted plainly and solely for the purpose of restraining a criminal prosecution, expressly inhibited by the Code of 1910, § 5491, and numerous decisions of this court. See dissenting opinion in Dasher v. Valdosta, 172 Ga. 539, 541 (158 S. E. 34); Montgomery & Atlanta Motor Freight Lines v. Georgia Public Service Commission, 175 Ga. 826 (166 S. E. 200). Petitioners allege that they have been given notice that they should report to the Board of Barber Examiners for physical examination and should make application for certificates of registration and otherwise comply with the statute; and that unless these requisites are complied with, petitioners would be prosecuted for misdemeanor under the barbers act of 1931. They then allege "that the plaintiffs will be detained by the defendants under threat of arrest and prosecution, and that plaintiffs will suffer a loss of time and incur burdensome expenses in their business, and will be deprived of the opportunity of complying with their contracts with their employees to perform their services, and the loss to the plaintiffs will be irreparable, unless the defendants are enjoined as hereinafter prayed; that the threats and acts of defendants aforementioned are predicated upon the- enforcement as against the plaintiffs by reason of the barbers act of 1931.” Thus it will be seen that no property rights are threatened or in any way affected. Of course it is obvious that if they violate a penal statute, and the statute is valid, they should be prosecuted. It is just as plain that any person who is indicted and prosecuted will be “detained,” and that such prosecution will necessarily cause loss of time and the burden of more or less expense. These things, we must assume, were known to the General Assembly as necessary results of a criminal prosecution when they enacted the statute forbidding courts of equity to enjoin criminal prosecutions.