Driscoll v. Same

The facts in this case are briefly these : The plaintiff is engaged in selling spirituous liquors in small quantities to be drank on the premises. He does not keep an inn, tavern or hotel. He has no license from any source. The defendants, with, the exception of Kennedy and Cameron, are the board of excise, created under the law of April 14, 1866. The defendants, Acton, Bosworth, Manierre and Bergen, are the board of police. The defendants, Kennedy and Cameron, are officers under the control of the board of police, and in no manner subject to the orders of the board of excise. The plaintiff alleges that the act of April 14, 1866, is unconstitutional and void; that the several defendants have combined to execute it, and will, by repeated arrests, and by closing his place of business, inflict upon him irreparable injury. To prevent this he asks the equitable interference of this court by way of injunction. [333] The defendants deny all the plaintiff’s allegations as to irreparable injury; they show that they have not seized and taken possession of the plaintiff’s place of business, but that on the contrary, the defendant, Kennedy, the executive officer of the police, has especially forbidden this to be done. The defendants, other than the board of police, Kennedy and Cameron, deny that they have anything to do with arresting the plaintiff or any one, or with enforcing the act of April 14, 1866, in any way. They deny ah confederation with the other defendants. The allegations of unconstitutionality, deprivation of rights and property, &c., &c., are all denied by all the defendants. In the Driscoll case the following additional point was also urged by the defendants’ counsel: 1. The plaintiff has no standing in court to ask its equitable interference. Even if his position is correct, that the law of April 14, 1866, is unconstitutional and void, the law of 1857 remains in full force, and the plaintiff is in constant and flagrant violation of that act. Yet he asks this court to protect him in carrying on that identical business. In other words, this court is asked, because one law is alleged to be unconstitutional, to protect the plaintiff in violating another act, the constitutionality of which has been affirmed by the court of appeals. (Commissioners of Excise of Tompkins Co. agt. Taylor, 21 N. Y. 173; Laws of 1857, vol. 2, pages 410, 411, §§ 13, 14; 1 R. S. 676, §§ 71, 72, part I, ch. 20, tit. 8, art. 8; Laws of 1860, page 448, § 42). These laws it is the duty of the police to enforce, and the plaintiff seeks to forbid them by injunction. (Laws of 1860, pages 444, 445, §§ 29, 30.) It is contrary to law and to equity for the court to grant him an injunction or to entertain his suit. (Griffith agt. Wells, 3 Denio, 226; Bank of U. S. agt. Owen, 2 Pet. 527, 539; Seneca Co. Bank agt. Lamb, 26 Barb. 595; Thalmier agt. Brinkerhoff, 20 Johns. 386, 397; Pennington agt. Townsend, 7 Wend. 276, 280; Scott agt. Burton, 2 Ashmead, 312; Biddle agt. Ash, Id. 211; Morse agt. Machias, 42 Maine 119).