Ordered for reargument before full bench May 31, 1910.
On March 24, 1908, the legislature of Oklahoma enacted a statute, known as the Billups Bill, providing for a state agency for the dispensing of liquors under certain circumstances, but not for use as a beverage, and prohibiting generally the manufacture, sale, bartering, giving away or otherwise furnishing liquor within the State. Session Laws Oklahoma, 1907-1908, ch. 69, p. 605; §§ 4180 et seq. Comp. Laws of 1909. Sections 5 and 6 of Art. 3 of the statute, §§ 4184 and 4185 Comp. Laws of 1909, provide in substance that any judge of a District or County Court or justice of the peace, upon a showing of probable cause, may issue search and seizure warrants directed to any officer of the county to seize liquors under the circumstances therein mentioned, and provide for a hearing as to whether such liquors are being unlawfully held, etc. The statute also makes provision for the forfeiture of liquors and other personal property employed in unlawfully trafficking in liquors.
In substance, it was prayed in the petition that the further prosecution of the suits and the enforcement of the various restraining orders and temporary injunctions entered therein should be prohibited, as well as any further interference with the prosecution in the state courts of search and seizure process under the law in question.
As a return to a rule to show cause respondent judge has filed an answer, containing copies of the file papers in the equity suits referred to in the petition. The following facts are taken from the showing thus made:
Prior to the fall of 1908, under the assumed authority of search warrants issued for alleged violations of the foregoing statute, numerous consignments from other States than Oklahoma to residents of Oklahoma of liquor had been taken from the cars or depots at stations within the State of Oklahoma of the Missouri, Kansas and Texas Railway Company, while such property was in the custody of the company, before the completion of the interstate transportation by delivery to the consignees. Alleging diversity of citizenship, and a continuous violation of
Four of the equity suits referred to in the petition — three filed December 17, 1909, and one on January 18, 1910 — were afterwards commenced in the same court by the railway company. The defendants were several individuals alleged to have actively participated in the seizure at various stations on the line of the company's road, like in character to the seizure complained of in the prior suit. Such seizures were averred to have been made under the assumed authority of the prohibition statute heretofore referred to. In one of the suits so commenced on December 17, 1909, a stipulation was filed to the effect that the seizures complained of had been made by the defendants acting as constables and under the authority of a
In the interval between the commencement of the first and the last of the suits just referred to four dealers in liquors and consignors of shipments which had been taken from the custody of the railway company while in course of interstate transportation to consignees in Oklahoma, under the assumed authority of the statute in question, also commenced the other suits in equity referred to in the petition. The defendants in these suits, designated by their official titles, were the state dispensary agent and the sheriff, constables or other officials who had participated in the seizures complained of in the various bills of complaint, as also the person who held possession of the property. The prayer of each bill was for the allowance of temporary and perpetual injunctions restraining future seizures of liquors shipped by the complainant and consigned to bona fide consignees in Oklahoma by railroad until the interstate transportation had terminated by delivery of the property to the consignees. A temporary
The temporary injunctions issued in the suits brought by the railway company were substantially alike and restrained the defendants and each of them, their agents and employes, "from entering the cars, depots or other premises of the complainant, Missouri, Kansas and Texas Railway Company, and from taking therefrom intoxicating liquors shipped from points outside of the State of Oklahoma to points and consigned to persons within the Eastern District of the State of Oklahoma, and that said defendants, and each of them, their agents and employes be restrained from in anywise interfering with complainant in its handling and delivery of such interstate shipments of intoxicating liquors and from inciting, aiding, abetting or advising other persons so to do." The defendants were also enjoined from taking any steps looking to the forfeiture of the seized property.
The temporary injunctions issued in the suits brought by the foreign liquor houses were also substantially alike and in each the defendants, their agents, etc., were "enjoined and restrained until further order of this court from seizing or causing to be seized, either directly or indirectly, or ordering or directing any person to seize any intoxicating liquors shipped by the complainant Thixton from the State of Kentucky to actual bona fide consignees within
"Provided, however, that this order shall not apply to any liquors shipped in violation of Sec. 3449 of the Revised Statutes of the United States, or to liquors shipped in violation of Sections 238, 239 and 240, of the Act of Congress of March 4, 1909, 35 Stat. 1136-7, or to any such liquors which are adulterated or misbranded within the meaning of the Act of Congress of June 30, 1906, ch. 3915, 34 Stat. 768, commonly known as the Pure Food and Drug Act, or to any such liquors shipped in violation of any other Act of Congress."
In one of the shippers' cases the injunction order also contained a provision prohibiting action by the defendants looking to the forfeiture of any of the liquors referred to in the complaint as having been seized by such defendants.
This application for a writ of prohibition was made practically cotemporaneous with the filing of the various demurrers above referred to. In substance, the reasons which caused the respondent judge to assume jurisdiction over the causes and to award the relief against the defendants therein, of which the State now complains, are not only stated in the return, but are expounded in an opinion delivered in one of the cases which is made a part of the return. These reasons are, in substance, made manifest by two excerpts, one from the opinion referred to and the other from the return itself, as follows:
"Under the facts as stipulated in this case, the shipments seized were still in the hands of the carrier, were interstate commerce, and had not become subject to the laws of the State. If it be contended that in enacting the
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"If these seizures are permitted, complainants will either have to abandon their property so seized, or defend a multiplicity of suits, the number of which will be determined only by the zeal of the enforcement officers in their interference with interstate commerce. As the record now stands, the complainants of course must eventually win in such suits, for upon a showing to the state court that the property seized was still interstate commerce, undelivered to the consignee, it would have to be ordered returned to the complainants. It is not conceived, however, that such a course presents that adequate legal remedy which precludes the action of a court of equity. Nor is it conceived that in granting the temporary injunctions complained of, respondent is violating the 11th amendment to the Constitution, or section 720 of the Revised Statutes of the United States, because the injunction may prevent one or more of the defendants from thereafter causing such warrants of search and seizure to issue, or from executing such warrants after issuance."
It is elaborately argued by counsel for the State, first,
Counsel who oppose the allowance of the writ urge numerous reasons why the application should be denied, in part as follows: Relief it is claimed should be refused because it is sought to review in one action the proceedings in different causes involving different parties and issues. Attention is called to the fact that in the first of the suits commenced by the railway company no jurisdictional objection was raised. It is argued that the bills of complaint filed in the various suits commenced by the railway company do not show on their face that the suits were against state officers or that injunctions were sought to stay proceedings in the state courts, and that in any event the primary purpose of the bills was to restrain future seizures of interstate shipments before delivery to the consignees. As to the suits brought by the four liquor houses, it is urged that § 720 of the Revised Statutes was not violated, as the relief granted was only against future seizures and the suits were against state officials to prevent
But we do not think we are called upon to test the accuracy of these, as well as other, conflicting contentions,
The principle under which the power to issue the extraordinary writ of prohibition may be exerted was thus stated in In re Huguley Mfg. Co., 184 U.S. 297, 301:
"It is firmly established that where it appears that a court, whose action is sought to be prohibited, has clearly no jurisdiction of the cause originally, a party who has objected to the jurisdiction at the outset and has no other remedy, is entitled to a writ of prohibition as a matter of right. But where there is another legal remedy by appeal or otherwise, or where the question of the jurisdiction of the court is doubtful, or depends on facts which are not made matter of record, the granting or refusal of the writ is discretionary. In re Rice, 155 U.S. 396. And that the writ of mandamus cannot be used to perform the office of an appeal or writ of error, and is only granted as a general rule where there is no other adequate remedy. In re Atlantic City Railroad Company, 164 U.S. 633."
It will become apparent from even a merely superficial analysis that, consistently with the doctrine just referred to, the facts which we have stated afford no basis for the allowance of the writ of prohibition as prayed. This is obvious because, first, an adequate remedy was provided by law in each case, even before final judgment, for reviewing and correcting in the Circuit Court of Appeals any error committed by the court below in awarding interlocutory relief by injunction; second, because after final decree, if the cases so ultimated, adequate remedy existed at the election of the defendants to come directly to this court upon the question alone of the jurisdiction of the
In view of the identity of the principles which govern the right to invoke the extraordinary remedy of mandamus to correct an unlawful assumption of jurisdiction, and those which control the power to issue the writ of prohibition for the same purpose, it was perhaps unnecessary to consider the subject from an original point of view, since the matter is settled by authority. Quite recently in Ex parte Harding, 219 U.S. 363, the whole subject was reviewed, and it was held that discretion to issue the writ of mandamus would not be exerted to review a question of jurisdiction where there was otherwise adequate remedy provided by statute for the review of errors in that respect asserted to have been committed by a trial court. Besides, a previous decision which was reviewed and reaffirmed in the Harding Case so completely controls the issue here presented as to leave no room for contention on the subject. The case is Ex parte Nebraska, 209 U.S. 436.
Rule discharged and prohibition denied.
(b) The issue as to whether or not the particular intoxicating liquor in question had been shipped from a point outside of petitioner's borders to a place within petitioner's borders in violation of § 3449 of the Revised Statutes of the United States.
(c) The issue as to whether or not the particular intoxicating liquor in question had been shipped from a place outside of petitioner's borders to a place within petitioner's borders in violation of any one or more of §§ 238, 239, and 240 of the act of Congress of March 4, 1909 (35 Stat. L. 1136-7).
(d) The issue as to whether or not the particular intoxicating liquor in question, although shipped from a place outside of petitioner's borders to a place within petitioner's borders and in the possession of the interstate carrier, undelivered under the contract of interstate shipment at the time the seizure was made, is "adulterated" or "misbranded" within the meaning of the act of Congress of June 30, 1906, chapter 3915, 34 Stat. L. 768, commonly known as the Pure Food and Drug Act.