Bennett v. Kimmel

Russell, C. J.

In 1925 the General Assembly passed “an act to prevent fraud and deception at jewelry auctions in this State, and to define who shall hold such auctions, and to regulate same.” Ga. L. 1925, p. 310. This act requires that before any auction sale of jewelry is «had, the dealer shall obtain a license from the commissioner of labor, to be conspicuously placed at the time and place to which the license was granted, and file a full inventory of all the articles to be sold, with the correct purchase-price of the same (verified by affidavit), which inventory shall also be filed by the ordinary and kept open for inspection for 60 days. The act *732also requires a bond in the sum of $1,000, and a daily report to be filed with the ordinary, together with a complete list of the articles sold the day previous, and the price received for each article sold, verified by affidavit to be filed by the ordinary and kept open for the inspection of the public. The act further requires that each article exposed for sale shall have attached to it a tag upon which shall be plainly written or printed in English a true statement of its character or quality, etc., which must remain firmly attached to the article sold, and be delivered to the purchaser, and constitute a warranty that the article sold is what it is represented by the tag to be. The act contains various other regulations, and finally provides that a violation of any provision of the act is a misdemeanor, and that each violation shall constitute a separate and distinct offense. Kimmel filed the petition for damages and injunction referred to in the statement of facts. The record does not disclose the action of the lower court upon the matter of injunction, but the present bill of exceptions gives evidence that -the original petition is still pending in the superior court of Eulton County. The only matter before this court for adjudication at this time is the cross-action filed by the original defendants, Claude Bennett et al. Our inquiry is confined to the merit or correctness of the judgment of the lower court in sustaining the demurrers of Kurnmel to the cross-action brought against him by Bennett et al. The court sustained certain special demurrers, as set forth in the statement of facts, allowing leave to the defendants to amend in the respects pointed out in the first, second, and third paragraphs of the plaintiff’s demurrer. The court did not pass upon the fourth ground of Kimmel’s special demurrer, and the fifth ground of his demurrer was overruled. TJie defendants did not amend in compliance with the requirement of the order; and the court reiterated its previous ruling as to the special demurrers, and, on account of the failure to amend, sustained the general demurrer and dismissed the cross-action.

Waiving the point as to whether the exceptions are as fully presented as they might be, and pretermitting any consideration of aught else than the merits of the judgment dismissing the cross-action, we are of the opinion that the court correctly dismissed the cross-action. The legal merit of the petition filed by the plaintiff in the lower court is a matter to be determined upon demurrer or *733other appropriate motion, and likewise the validity of his right to recover damages. "Whether the plaintiff has been injured and damaged, and how much, if any, is a question of fact for a jury. The naked question in this case is, can the defendants enforce the act of 1925 by injunction? It is admitted that the cross-action was not filed in order to recover damages from Kimmel in behalf of the several defendants in the original suit, or any one of them. It is alleged that the damages are incapable of computation. However, it is argued that each and all of the defendants are injured in their several businesses by KimmeFs continual breaches of the law; and that as they have been brought into court by Kimmel, and the court has all the parties and the subject-matter before it, it is within the power of a court of equity to frame an appropriate civil remedy which will relieve in a single action each and all of the defendants. It is a well-settled maxim that as a general rule equity will not interfere with the progress of criminal or quasi-criminal prosecutions. This dogma of aloofness which should characterize, and distinguish the independence of the civil and criminal jurisdictions each from the other would seem to be equally applicable to the converse of the proposition; and so it may be said that equity can not be used to enforce the criminal law. If the statements contained in the cross-action which was dismissed by the trial judge are true, the criminal law provides not only an adequate but, we may say, the exclusive remedy for the ills of which respondents complain. The enforcement of the act of 1925 is not a matter of private concern, but is a duty of public import. In the absence of express legislative authority, no private individual, no matter what his calling or business; can be said as matter of right to be entitled to damages for the violation of a public law, except in an instance where he himself is peculiarly and personally specially affected without regard to any one else. If an individual is injured and damaged by the violation of a penal law of which he is the sole sufferer, he may be entitled to damages for the tort, for then it becomes a personal wrong .affecting either his life, person, property, or reputation; but generally in the violation of a public law mere personal grievances are merged in the greater wrong against the State and its people. The act of 1925 is the crystallization of a matter of public policy into a public law, and matters of State policy can not be enforced by private litigation. The *734State alone, acting through its officers provided by law, must enforce laws penal in their nature. Although the defendant in error contends that the act of 1925 was aimed solely at him, as long as the act of 1925 stands unassailed we must assume it to be an expression of the legislative will in an impartial exercise of the police authority representing a legitimate public policy of this State. If the act of 1925 is valid, the remedy of the jewelers is to institute criminal prosecutions, instead of attempting to' enforce it by injunction. If it should be held to be invalid, the law would no more support a civil proceeding than a criminal prosecution.

Judgment affirmed. ■

All the Justices■ concur.