State Ex Rel. Valley Distributors, Inc. v. Oakley , 153 W. Va. 94 ( 1969 )

Calhoun, Judge,

dissenting:

Respectfully, I dissent from the Court’s decision in this case. The reasons for my disagreement were stated with supporting legal authorities in considerable detail in my dissenting opinion in Aldrich v. Aldrich, 147 W. Va. 269, 285, 127 S. E.2d 385, 394.

Basically my dissent in this case is based upon my contention that the Circuit Court of Logan County is a constitutional court of general jurisdiction, including jurisdiction to award injunctions; that jurisdiction in a court includes jurisdiction to decide incorrectly as well as to decide correctly; that mere errors of law committed by a court in the exercise of its jurisdiction can be corrected only by direct proceedings such as by appeal; that whether the trial court erred in granting the injunction in this case is by no means clear from a legal standpoint, but, at most, it was a mere error in construing and applying legal principles in the exercise of its admitted general jurisdiction; that the trial court’s action in awarding the injunction has become final by the failure to prosecute a timely appeal; and the judgment of the trial court having become a finality in this respect, its validity cannot be legally assailed either in that court, in this Court, or in any other court of the United States, unless it be established that the trial court’s judgment was procured by fraud. The contentions thus made in my dissenting opinion were, I believe, fully sustained on appeal. Aldrich v. Aldrich, 378 U. S. 540. Comments on the Aldrich case appear in 65 W. Va. L. Rev. 89 and 68 W. Va. L. Rev. 103.

Authorities cited in my dissenting opinion in the Aldrich case in support of my contentions stated above in this opinion included St. Lawrence Co. v. Holt and Mathews, 51 W. Va. 352, pt. 1 syl., 41 S. E. 351; Stewart v. Tennant, 52 W. Va. 559, pt. 8 syl., 44 S. E. 223; Blankenship v. Mongini, 105 W. Va. 530, pt. 2 syl., 143 S. E. 301; Adkins v. Adkins, 142 W. Va. 646, 97 S. E.2d 789 (in which case quite numerous cases are cited and discussed); 21 C. J. S., Courts, Section 27, pages 38-39; 11 M. J., Jurisdiction, Section 10, page 436-37. See also Pyles v. Boles, 148 W. Va. 465, pt. 12 syl., 135 S. E.2d 692. The following language is included in a statement of the general rule in 20 Am. Jur. 2d, Courts, Section 90, page 451: “The distinction between lack of jurisdiction and any other error affecting a decision of a court is of practical importance in that where a court has jurisdiction, a wrong decision is not void, and therefore not subject to collateral attack. Similarly, writs such as prohibition and habeas corpus may be available only where a court has acted without jurisdiction, and not on the ground that it acted erroneously.” (Italics supplied.) Following is the first point of the syllabus of St. Lawrence Co. v. Holt and Mathews, 51 W. Va. 352, 41 S. E. 351: “An adjudication that a particular case is of equitable jurisdiction is not void, even if erroneous and cannot be disturbed by a collateral attack.” I believe additional authorities to the same effect, almost without limit in number, could be cited to sustain that which I consider very fundamental and important principles of law.

The Aldrich case, to which reference was made in the early portion of this dissenting opinion, involved a suit for divorce previously instituted by a wife against her husband in the Circuit Court of Dade County, Florida. The parties, though subsequently divorced, for the sake of convenience may be referred to hereafter in this opinion as the wife and the husband. The Florida court granted a divorce to the wife and directed the husband to pay alimony to her at the rate of $250 a month, which amount was subsequently reduced by court order. The divorce decree further provided that if the husband should predecease the wife, the alimony would continue to be effective and would become a charge upon his estate during her lifetime. The husband predeceased the wife while he was a resident of Putnam County, West Virginia. Thereafter she instituted a civil action in the Circuit Court of Putnam County against the estate of her former husband to recover the aggregate sum of the monthly alimony installments which accrued from the date of the death of the husband to the date of the institution of the action. The plaintiff appealed to this Court from an adverse judgment of the Circuit Court of Putnam County.

On the appeal to this Court, the primary question for decision was whether the Florida judgment was a valid judgment such as to be entitled to full faith and credit by courts of this state under Article IV, Section 1 of the Constitution of the United States. This Court, after reviewing the statutes and pertinent court decisions of the State of Florida, stated in the tenth point of the syllabus: “* * * but, in the absence of any agreement between the parties, that court did not have jurisdiction to award alimony to extend beyond the death of the husband and to make such alimony a charge against his estate. For that reason the judgment awarding such alimony was void and of no force and effect under the law of the State of Florida and will not be given full faith and credit in the courts of this state.” (Italics supplied.)

From the decision of this Court, a writ of certiorari was granted by the Supreme Court of the United States, which, pursuant to a Florida statute, certified certain questions to the Supreme Court of Florida.

After ably discussing in considerable detail the questions certified to it for decision, the Supreme Court of Florida summarized its decision as follows: “In summary, it is our opinion that the Circuit Court of Dade County in 1945 had ‘subject matter’ jurisdiction of the cause and that, in exercising such jurisdiction, its decision as to alimony after the death of the husband was erroneous. It is our further view, however, that when the husband failed to take an appeal and give a reviewing court the opportunity to correct the error, the decree of the Circuit Court on such question passed into verity, became final, and is not now subject to collateral attack. * * *.” (Italics supplied.) Aldrich v. Aldrich, 163 So. 2d 276, 284 (Fla. 1964).

In its ultimate decision involving the correctness of the decision of this Court, the Supreme Court of the United States concluded its opinion as follows: “The judgment below is reversed, and the case remanded for proceedings not inconsistent with this opinion.” Aldrich v. Aldrich, 378 U. S. 540.

The writ of prohibition, as the term implies, is prohibitive in character. In this case it is not being used in a prohibitive sense or manner. Rather it is being used to nullify an action which has previously been taken by the trial court and which, in the circumstances, has become an unassailable finality. This Court is taking an action which the trial court itself could not take. The writ in this case is being used as a belated substitute for appellate procedure.

“The writ of prohibition is purely jurisdictional and will not lie to correct errors or be allowed to usurp the functions of a writ of error or certiorari, or of the remedy by appeal.” Johnston v. Hunter, 50 W. Va. 52, pt. 1 syl., 40 S. E. 448. To the same effect see State ex rel. Cecil v. Knapp, 143 W. Va. 896, 912, 105 S. E.2d 569, 578-79, and other cases there cited. If the trial court in this case exceeded its legitimate powers in the exercise of its admitted jurisdiction, it did so years ago. In State ex rel. Charlotton v. O’Brien, 135 W. Va. 263, 63 S. E.2d 512, this Court held that prohibition would not lie where the lower court acted in a case in which it had jurisdiction and its alleged errors in the exercise of that jurisdiction could not be examined, corrected or nullified by this Court after the lower court’s judgment became final.

The majority opinion states that the Sunday Closing Law here in question “is unquestionably a criminal statute”. I question whether this is a “criminal statute” within the meaning and intent of the principles applied in this case. Certainly the incidental penal aspects of the statute create an offense which is merely malum prohibitum rather than malum in se. The statute contains a provision for local option, so that it is operative in some counties and not in other counties of the state. A “criminal statute” enacted by the legislature is normally statewide in scope and operation. Section 27 of the statute provides: “The penalties imposed by this section shall not be incurred by any person who conscientiously believes that Saturday ought to be observed as a Sabbath, * * Hence the penal portion of the statute does not apply alike to all citizens of the state. The constitutionality of the Sunday Closing Law was upheld unanimously in State ex rel. Heck’s, Inc. v. Gates, 149 W. Va. 421, 141 S. E.2d 369. In that case the Court stated (149 W. Va. 437, 141 S. E.2d 381): “The principle has long been recognized in this State that a Sunday Closing Law, enacted under the police power of the State, for the purpose of providing a day of rest for persons and to prevent the physical and moral disadvantages which result from uninterrupted labor is not a religious statute * *

It is true that, as a general rule, violation of criminal laws will not be enjoined, but to that general rule there are well established exceptions. 43 C. J. S., Injunctions, Sections 150-155, inclusive. A general rule is summarized in 43 C. J. S., Injunctions, Section 151, page 762, as follows: “Injunction will issue to inhibit a criminal act when that act invades civil or property rights and where there is no other adequate remedy available.” The following statement of the general rule appears in 42 Am. Jur. 2d, Injunctions, Section 161, page 923: “It is in the prevention of invasion or destruction of, or injury to, property or property rights that the remedy by injunction is generally granted, and it is no obstacle to injunctive relief in such -cases that the acts complained of may be of a criminal character.” The following appears in 42 Am. Jur. 2d, Injunctions, Section 167, pages 933-34:

“In application of the principle that equity will interfere by injunction to prevent the commission of acts, even though they are criminal or penal, which injuriously affect the complainant’s property rights or interests, equity will, in a proper case, restrain the use of criminal means or practices in business or trade competition. Injunctive relief in such cases is predicated upon the right of an individual or a corporation to carry on a business or exercise a franchise without the competition of illegal and criminal acts. Where injury to the property rights of a rival or competitor results from such acts, he is not required to suffer successive inflictions until a criminal prosecution is launched, but may proceed at once to remedy the wrong by injunction. And it cannot be said that in affording preventive relief under such circumstances courts of equity depart from the principle that they may not interfere to enforce the criminal law. * * *.”

To the same effect, see Woodfin v. Overnite Transportation Company, 199 Va. 165, 98 S. E.2d 525; Turner v. Hicks, 164 Va. 612, 180 S. E. 543; Long’s Baggage Transfer Co. v. Burford, 144 Va. 339, 132 S. E. 355; 10 M. J., Injunctions, Section 10, page 15.

As the sole syllabus point in this case the Court quotes the fifth point of the syllabus of State v. Ehrlick, 65 W. Va. 700, 64 S. E. 935, which is as follows: “If a charge is of a criminal nature, or an offense against the public, and does not touch the enjoyment of property, or health, it is not within the jurisdiction of a court of equity.” (Italics supplied.) The Court neglected to quote the sixth, seventh and eighth syllabus points of the same case which are as follows:

“6. Equity has no jurisdiction to abate a public nuisance, either civil or criminal, at the instance of an individual or the state, not affecting or injuring the enjoyment of property or other personal rights.

“7. In so far as a public nuisance injures property or substantially interferes with the enjoyment thereof, directly or indirectly, or constitutes a purpresture, excluding citizens from the enjoyment of their civil rights in highways and other public grounds and places, or obstructing or interfering with the execution of the public business, it is abatable by injunction.

“8. If an injunction is necessary and proper for the protection of such rights, criminality of the injurious act does not bar the remedy in equity.”

The principles stated in the sixth, seventh and eighth points of the syllabus are discussed in the body of the opinion (65 W. Va. 706, 64 S. E. 937-38) of the Ehrlich case.

From the legal principles previously referred to herein, I believe it is manifest that the trial court, in acting upon the application for injunction, was not only acting within the range of its jurisdiction, but that it was also entertaining a justiciable, litigable controversy affecting the personal and proprietary rights of the plaintiffs in the injunction proceeding. It is important to note that Code, 1931, 53-1-1, speaks disjunctively: “* * * when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers.” (Italics supplied.) I believe the decision in this case is nearly, if not entirely, authority for the proposition that a court “exceeds its legitimate powers” when it makes any ruling which is contrary to law in any case in which it admittedly has jurisdiction of the subject matter in controversy.

In the complaint by which the plaintiffs sought to restrain by injunction the unlawful competition by a competing business, they allege that numerous warrants, to no avail, had been obtained against the defendants and their employees; that the penal provisions of the law were enforced inside but not outside the City of Logan; that, in this respect, the plaintiffs were denied “equal protection of the laws and the right to equal enforcement thereof;” that this situation will cause plaintiffs, “as well as all other businesses similarly situated in the City of Logan and competitive with the defendants, great and irreparable injury from the nature and character of which there is no adequate remedy at law;” and that the continued issuance of warrants against the defendants and their employees would cause multiplicity of litigation “and would not provide an adequate and sufficient remedy, to which plaintiffs are clearly entitled.”

It is obvious that the plaintiffs in the injunction action were interested only in protecting their business from unlawful competition by a competing business. There is no basis for asserting that their purpose was to prevent anybody from the resulting violation of the penal provisions which are so incidental and secondary in the Sunday Closing Law. It is my understanding that it has always been a concern of courts of equity to protect lawful business enterprises from unlawful competition.

For reasons stated, I would refuse to grant the writ of prohibition.