(dissenting in part and concurring in part from the opinion on rehearing).
I agree that the ordinance in question invades a property right. I agree, also, that the ordinance is unconstitutional. Therefore, what has been said in the opinion on rehearing is correct on these two issues. Nevertheless, I do not depart from the views I expressed as organ of the Court on original hearing.
As I understand the law — and I cited numerous authorities to support my view in the original opinion — before injunctive relief can be granted to prevent the enforcement of an ordinance which is penal in nature, a third condition must exist; that is, the court must also be satisfied that the remedy provided by law is inadequate, and denial of injunction will result in irreparable injury. The fact that plaintiff must undergo a trial does not subject him to irreparable injury; nor is plaintiff’s good name impugned by a conviction in a matter involving violation of a Sunday closing ordinance. Since these are the sole grounds upon which the majority opinion is predicated on this third requirement of the law, I cannot agree with the decision.
By this decision the door is opened to circumvent the authority of municipal courts, and other courts of original jurisdiction, upon the slightest pretense of irreparable injury. Intervention of equity is permitted in an area where the law is clear and equity has no proper place. The legal structure and orderly process established by the constitution and laws for adjudicating prosecutions under penal ordinances — and, by analogy, under criminal laws — are thereby disrupted. This is brought about by judicially superimposing upon that structure and process a judicial veto clothed in the garments of equity. Established courts are thus denied the right to adjudicate within areas clearly assigned to them by the constitution and laws.
Only extraordinary circumstances will warrant such intervention. They do not exist in this case.
I respectfully dissent.