Appellees [plaintiffs] brought this action challenging the constitutionality of 21 O.S. 1971 §§ 1218-1219, which make it unlawful for names of persons killed in military action to be displayed on cards or placards, or otherwise published for the purpose of anti-war, anti-draft, or anti-police demonstrations or protests, without the written consent of certain survivors of the deceased. Plaintiffs alleged they intended to violate the statute and sought a declaratory judgment the statute was unconstitutional and an injunction restraining the district attorney from prosecuting them for violations of the statute.
The district attorney of Cleveland County and the attorney general of the State of Oklahoma were joined as defendants, but the attorney general was dismissed from the action by the court. The district attorney filed an answer admitting he would prosecute plaintiffs if they violated the statute.
Parents and next of kin of servicemen killed in military action intervened and sought an injunction restraining plaintiffs from violating the statute.
A hearing was held and the trial court entered declaratory judgment declaring the statute unconstitutional and granted a temporary injunction enjoining defendant from enforcing the statute against plaintiffs. Defendant and intervenors appeal.
Section 1651 of the Declaratory Judgments Act [12 O.S. 1971 §§ 1651-1657] provides in part:
This Act was enacted in 1961 and the title of the Act provides it is "AN ACT relating to civil procedure * * *." 1961 S.L., p. 58.
Section 1654 provides any determination of rights under the Act "shall be reviewable in the same manner as other judgments."
At the time the statute was enacted, Art. VII, § 2, Okla.Const., provided:
Art. VII § 4, Okla.Const., which was adopted in 1967, provides:
20 O.S. 1971 § 40, which was enacted in 1910, provides:
The State of Texas also has separate appellate courts for civil and criminal matters.
In City of Amarillo v. Griggs, Tex.Civ. App., 406 S.W.2d 230, the plaintiffs operated an ambulance service licensed pursuant to state statutes, but did not secure a city permit required by applicable city ordinances which contained a penal provision. The ordinance was enforced against plaintiff
Plaintiffs sought a declaratory judgment holding the statute to be void and unconstitutional and also sought to enjoin its enforcement and discrimination by the city against plaintiffs for failure to secure a permit. The trial court entered a declaratory judgment holding the ordinance to be unconstitutional and enjoined the city from discriminating against plaintiffs for failure to comply, but refused to enjoin penal enforcement of the ordinance. The city appealed.
The appellate court noted that equity will not enjoin enforcement of a criminal law unless it is unconstitutional or otherwise void, and enforcement thereunder involves an invasion of property rights which will result in irreparable injury. That court then stated:
Therefore, since proceedings under the declaratory judgment statute are civil proceedings, appeals from civil proceedings are to this Court, and at the time the statute was enacted, and at this time, we have a Court of Criminal Appeals with exclusive appellate jurisdiction over criminal cases, we conclude the reference in § 1651 to "construction or validity * * * of any statute * * *" was not intended to grant jurisdiction to district courts to grant declaratory judgments construing, or determining the validity of penal statutes in situations other than those wherein injunctive relief would have been appropriate prior to enactment of the statute.
As concerns when an injunction will be issued to enjoin enforcement of a penal
In that case we reversed the trial court's judgment enjoining certain officials from enforcing an ordinance which prohibited plaintiffs from showing picture shows on Sunday on the ground the evidence was insufficient to show destruction of property or infliction of irreparable injury.
Certain cases do contain statements to the effect enforcement of an invalid ordinance will be enjoined to prevent injuries to a plaintiff as well as an injury to plaintiff's property. Nation v. Chism, 154 Okl. 50, 6 P.2d 766; Allen v. Oklahoma City, 175 Okl. 421, 52 P.2d 1054. However, both of those cases actually involved property rights. In Nation v. Chism, supra, the plaintiff sought to enjoin enforcement of an act regulating barbers. In paragraph 5 of the syllabus we held:
In Allen v. Oklahoma City, supra, the plaintiff sought to enjoin enforcement of a city ordinance which made it unlawful for a person of her race to reside in a house owned by her. In paragraph 1 of the syllabus we held:
In the present case no allegation was made, or evidence offered, indicating that property rights would be destroyed if enforcement of the statute was not enjoined.
Therefore, we conclude that the trial court erred in granting the temporary injunction and erred in granting declaratory relief to plaintiffs.
Intervenors contend the trial court should have entered declaratory judgment declaring the statute to be constitutional and an order restraining plaintiffs from violating the statute.
As a general rule an injunction will not issue to restrain commission of a threatened act merely to prevent the violation of a penal statute, Schmoldt v. Oakley, Okl., 390 P.2d 882, unless a statute provides a remedy by injunction to restrain violations, 42 Am.Jur.2d, Injunctions § 157. However, where an injunction is otherwise warranted, the court may enjoin certain acts affecting rights, property and general welfare of people even though such acts are also criminal offenses. State Bar of Oklahoma v. Retail Credit Ass'n, 170 Okl. 246, 37 P.2d 954; Curtis v. Registered Dentists of Oklahoma, 193 Okl. 233, 143 P.2d 427; Taylor v. State ex rel. Rutherford, Okl., 291 P.2d 1033, appeal dismissed, 352 U.S. 805, 77 S.Ct. 33, 1 L.Ed.2d 38; Semke v. State ex rel. Okl. Motor Vehicle Comm., Okl., 465 P.2d 441.
In Simons v. Fahnestock, 182 Okl. 460, 78 P.2d 388, we held in paragraph 3 of the syllabus:
Here the evidence introduced indicated plaintiffs had not violated the statute in Cleveland County prior to the hearing and the evidence did not establish plaintiffs
We conclude intervenors were not entitled to injunctive relief and therefore were not entitled to declaratory relief.
The judgment of the trial court is reversed insofar as it granted declaratory and injunctive relief to plaintiffs, and affirmed to the extent it denied injunctive and declaratory relief to intervenors.
WILLIAMS, V.C.J., and LAVENDER, BARNES and SIMMS, JJ., concur.
IRWIN and DOOLIN, JJ., concur in result.
DAVISON, C.J., and HODGES, J., dissent.