Dissenting Opinion
Arterburn, J.I dissent from the majority opinion because I do not think that the equity and civil side of a court should assume to take over and control the criminal side, nor the discretion of the executive and law enforcement branch of our government. This is an action brought against the prosecuting attorney, the sheriff, chief of police, and others constituting the law enforcement arm of the executive branch of our government. The main objective of the action, it will have to be admitted, is to enjoin officials of this branch of the government from exercising their discretionary powers in enforcing what they believe to be violations of the criminal law, namely, gambling. Under American criminal jurisprudence a defendant in a criminal case is given the widest and most liberal opportunity to clear himself and prove himself innocent, with rights against self-incrimination, with rights to a jury trial, and with the presumption of innocence. For that reason the threatened violation of a criminal law will not, for that purpose alone, be enjoined and thus deprive a defendant of many of his *57constitutional safeguards. 43 C. J. S., Injunctions, §150, p. 760; 43 C. J. S., Injunctions, §156, pp. 768, 771.
Likewise, equity and the civil side of a court should not interfere with the criminal law enforcement functions of the government, particularly where officials in that branch are exercising their discretionary powers. The functions of these departments must be kept separate under the constitution. Too often, we judges are prone to substitute our personal judgment for that of officials in other branches of the government.
The discretionary power of law enforcement officials is vital to the public interest. This is particularly true with reference to the judgment exercised by the prosecuting attorney. His official discretion in his field is as independent as that of a court. A judge may not direct a prosecuting attorney to approve or disapprove an affidavit that is to be the basis of a criminal prosecution. State ex rel. Freed v. Martin Circuit Court (1938), 214 Ind. 152, 14 N. E. 2d 910; State ex rel. Spencer v. Criminal Court, Marion Co. (1938), 214 Ind. 551, 15 N. E. 2d 1020, 16 N. E. 2d 888.
The appellee contends in this case that it is enjoining the appellants from doing acts outside their official power or capacity; however, it should be noticed that they are not sued in their individual capacity but in each case are sued in their official capacity as prosecuting attorney, sheriff, chief of police, etcetera. The permanent injunction is against them in their official capacity.
The allegations in this case are in substance that the plaintiff-appellee corporation is the owner of certain pinball machines, and that it conducts a lawful business of leasing and otherwise locating these machines so as to receive an income therefrom. The appellee states that the appellants intend to and will, unless restrained, *58“arrest the owners and operators of locations wherein said pinball machines are located,” and that the appellants will seize and destroy the machines belonging to the appellee. That all these acts will be done “for the purpose of intimidating, coercing and forcing said owners and operators of locations wherein such pinball machines are located to refuse to permit the continued operation of such machines in their premises.”
We may add at this point that these are consequences which normally flow from any threatened prosecutions, or prosecutions for law violations in such cases.
The injunction decreed is all inclusive and leaves the appellee immune from any prosecutions or seizures of the machines even if they are used as gambling devices in the future.
The trial court entered a judgment perpetually enjoining the appellee “from interfering with plaintiff’s business and the business of all owners and lessees of pinball machines located in Marion County, Indiana, and . . . from arresting, coercing, or in any manner whatsoever intimidating the owners, operators, or employees of locations where said pinball machines are now located, or may be located, in Marion County, Indiana, and from seizing, confiscating, or in any manner whatsoever taking into their possession the aforesaid pinball machines or interfering with the plaintiff” in the conduct of leasing and distributing the pinball machines.
The evidence in support of this judgment is meager and not substantial. It is largely concerned with the mechanical operation of a pinball machine, and how ap. pellee conducts its business. There is very little evidence concerning the actual use of the machines. The testimony is that two of the machines were seized by the sheriff’s office, and the president of the appellee cor*59poration says he does not know what was being done with the machines when they were seized (whether used for gambling or not), and that he has never talked with the sheriff about the operation of these machines. In other words, neither the allegations of facts in the complaint nor the evidence excludes or negatives these machines being used for gambling purposes at the time they were seized. A pleading is construed most strongly against the pleader. The burden is on the appellee in such a case to show the use of the machines was innocent and legal at the time. The burden is not upon the prosecuting and law enforcement officials to make out a criminal violation in a civil case such as this. Yet, that is the tenor of the reasoning in the majority opinion. State ex rel. Board, etc. v. Goodman (1951), 230 Ind. 38, 101 N. E. 2d 421; Pittsburgh, etc., R. Co. v. Town of Crothersville (1902), 159 Ind. 330, 64 N. E. 914; Yoder v. Cole, Trustee (1930), 91 Ind. App. 630, 172 N. E. 545.
So far as we know, the sheriff had a legal right to seize the machines or devices if he had probable cause to believe that they were being used as gambling devices, and at places frequented by children at the time.
Acts 1947, ch. 188, §1, p. 624, being §9-604 and Acts 1907, ch. 290, §2, p. 661, being §9-605 Burns’ 1956 Replacement authorize the seizure of devices used for gambling by the sheriff. Before the machines can be destroyed, the sheriff must get a court order for that purpose, and the owner must be notified. There is no allegation of fact in the petition in this case, nor proof that the sheriff is doing anything but following legal procedure. As a last resort, the appellee had a remedy by replevin if it thought the seizure in the particular case unlawful. The appellee has an adequate remedy under the law.
The only testimony that links the prosecuting attorney *60with this case is his sole statement in the record that he believed “they [pinball machines] violated the law in their then use.” This was his privilege so to believe without being enjoined. There was nothing unlawful or improper in these remarks. No court has jurisdiction to restrain the expressions or legal opinions of a prosecuting attorney even though they may intimidate or create fear of prosecution in others.
The majority opinion concedes the strong possibility that the pinball machines could be used as gambling devices in particular cases, but states “the injunction was lawful to the extent that . . . said machines were operated in the manner evidenced by the record.” (Our italics.) Our point is that there is an absence of any evidence in the record as to how the seized machines were actually operated at the time, or how any other machines were operated at the time concerning which threats of prosecution or seizure were made. None of the operators where the machines were located took the stand or testified as to the circumstances surrounding the particular operations, whether legal or illegal in the particular cases specified, as a basis for relief. The necessity of such specific proof is elemental in such cases.
There is a failure of proof in this case. For aught that appears in the record, the machines seized were being used as gambling devices.
The cases cited in the majority opinion do not lend support to the proposition that equitable actions may be brought against prosecuting and law enforcement officials as in this case to protect property rights. State ex rel. Fry v. Superior Court Lake County (1933), 205 Ind. 355, 186 N. E. 310; State ex rel. Feeney v. Superior Court (1934), 206 Ind. 78, 188 N. E. 486; State ex rel. Egan v. Superior Court of Lake Co. (1937), 211 Ind. 303, 6 N. E. 2d 945; Dept. Financial Institutions v. Holt, etc. (1952), 231 Ind. 293, 108 N. E. 2d 629.
*61An examination of these cases shows that in all of them, injunctive relief was denied those who attempted to restrain the prosecuting and law enforcement officials. In the case of Dept. Financial Institutions v. Holt, supra, the relief was granted, but the evidence showed that there was no criminal prosecution pending or threatened and the prosecuting attorney was not a party thereto. The action was brought primarily to determine the constitutionality of the regulatory powers of the Department of Financial Institutions over installment sales.
On the other hand, in the case of State ex rel. Egan v. Superior Court of Lake Co., supra, the facts were similar to those here. A plaintiff sought to enjoin the prosecuting attorney and the chief law enforcement officers of Lake County, including the sheriff, mayor, and chief of police of the City of Hammond, from interfering with the operations of a dog track which the plaintiff alleged and claimed did not violate the laws of the State of Indiana in any way. The prosecuting attorney and law enforcement officials claimed it was used as a gambling device. As in this case, it was alleged that the prosecutor and law enforcement officials threatened to arrest, prosecute, and interfere with the plaintiff’s business, and they claimed that they had a large financial investment in the track, and would suffer great property loss as a result. Judge Treanor in that case (211 Ind. 303 on pp. 308, 309) speaking for the court which refused to grant a writ of prohibition, made the following statement:
“The complaint for injunctive relief in the instant case, and the writ issued thereon, disclose that the main relief sought, and obtained by the temporary writ, was protection from threatened criminal prosecution. . . .
“The relator and other law enforcement officers of Lake County are under sworn duty to enforce the *62criminal laws of the State of Indiana and in the performance of that duty are protected by law in the exercise of their discretion. It is for them, in the first instance, to decide whether plaintiffs are violating any criminal law of the State of Indiana. This discretionary power is too vital to the interest of public order to be subjected to restraint by the courts. This power is possessed and exercised as a part of the independent co-ordinate power of the executive branch of the state government and for that reason is not subject to interference by the judicial branch of the government.
“The Superior Court of Lake County has no power to judicially determine whether the proposed plan of operation of plaintiffs below constitutes a violation of the criminal law of the state and to enjoin relator, or other enforcement officers, from performing their duties as law enforcement officers pending the determination of the criminality of the plan of operation.”
To me, this case is on all fours with the Egan case. A writ of prohibition was issued against the trial court entertaining jurisdiction of the case. The prosecuting attorney in that case had no burden of introducing any evidence to prove a criminal violation. Property rights were involved there but the main objective and purpose of that case, as in this, was to impede and restrain the discretionary actions of the law enforcement officials in carrying out what they felt to be their official duties. We know that the injunction in this case was brought by the operators and owners of pinball machines to impede and restrain the prosecuting attorney, the sheriff, and police officers, from interfering with what such officials thought were law violations and the use of the machines as gambling device. The law provides the criminal courts as a place for the determination of whether or not there is a violation of the criminal laws. These questions should be settled there. In my opinion the appellants were entitled to a writ of prohibition, as in the Egan *63Case, prohibiting the trial court from entertaining jurisdiction of this case in the first instance.
It is said that the equity side of the court will step over into the criminal jurisdiction of a court if property rights are involved and criminal violations are merely incidental. One may ask, what threatened criminal law prosecution does not involve either some form of property right or personal privilege? The latter right which includes that of personal liberty is far more important than a property right. If equity may invade the criminal domain under the guise of protecting property, then it may do so with greater reason under the guise of protecting personal liberty. Carried out logically, every criminal prosecution could be first adjudicated in equity by asking for an injunction against law enforcement officials.
The judgment should be reversed with direction to enter judgment for the appellants.
Note. — Reported in 142 N. E. 2d 610.