DISSENTING OPINION I do not dissent from the result reached in this case, namely, the denial of injunctive relief against criminal prosecutions. My criticism is of the method by which the result is reached. The majority follow a precedent, State ex rel. Fry v. SuperiorCourt of Lake County (1933), 205 Ind. 355, 186 N.E. 310, and cases based thereon. Certain principles found therein may be restated as follows:
A court of equity will not enjoin criminal prosecutions. A court of equity will protect certain property and civil rights even though that protection requires that criminal prosecutions be enjoined. A license to sell beer is not such a right as will be so protected.
With all this I agree. The complaint in respondent court appears on its face to allege no greater or different right than the right to sell beer under an annual license. Respondent therefore should have denied the restraining order requested in the complaint. Likewise relators' motion to dissolve should have been sustained. In both of these instances respondent erred. The remedy for error is appeal, not prohibition. Herein is found the basis for my dissent.
A court of equity has the power to do many things which it ought not do. Prohibition deals with jurisdiction in the strict sense of power to hear and decide. A court of equity ought not give relief when there is an adequate remedy at law. But the court with jurisdiction of the parties and the subject matter has power to determine in the particular case whether there is an adequate remedy at law. If the court errs the error is corrected on appeal. In the Fry case and the case at bar the court of equity had jurisdiction of the subject matter and of the parties. The subject matter was the protection of property or civil rights by injunction even *Page 484 against criminal prosecution. The court therefore had the power to hear and decide whether in the particular case there existed such a property or civil right as justified such protection. The court erred. But there was no appeal. Instead the defendants came to this court to prevent the trial court's further exercise of its power and to override its prior rulings.
We called this course a "short cut" in State ex rel. Allison v. Marion Municipal Court (1944), 222 Ind. 603,56 N.E.2d 493, and refused to go that way. More recently in State ex rel.Emmert, Attorney General, et al. v. Hamilton Circuit Court, etal., ante, p. 418, 61 N.E.2d 182, we again refused the "short cut." On this point there is no valid distinction between those cases and the case at bar.
It is said now that the beer dealer's complaint shows clearly that no protectable property right is alleged and that by no amendment can one be alleged. But there may come a complaint not so clear. When that happens and the defendant asks this court for prohibition shall we decide the sufficiency of the complaint or refuse to do so, saying that is the trial court's function. If the former, we shall have converted the Supreme Court into anisi prius court contrary to the spirit of the Constitution. If the latter, we shall have to say the present case and its predecessor, the Fry case, are exceptions to the rule. How shall we define the exceptions?
In the Hamilton Circuit Court case we were so much concerned with keeping unperverted the function of a writ of prohibition that we devised a remedy by appeal when theretofore none was thought to exist. This course is here unnecessary. A restraining order procured without notice should continue only until the parties are in court for preliminary hearing on the question of a temporary injunction. It is unthinkable that a judge will *Page 485 without notice tie the hands of law enforcement officers longer than necessary to get them into court even though he doubts the constitutionality of the statute under which they are proceeding. They may waive process and appear almost instanter. If the purpose of the plaintiff, as here suggested, was merely to test the constitutional validity of the statute, the court should have resolved any doubts in favor of the act. But whether a temporary injunction be denied or granted, in either event an immediate appeal lies under the thirteenth clause of § 4-214, Burns' 1933. The time consumed in briefing is substantially the same in prohibition as on appeal. Pending an appeal from the granting of a temporary injunction there can be no prosecutions for violations of the penal statute. A writ of prohibition stays enforcement of the restraining order and permits such prosecutions while this court is reaching its conclusion. This difference in the immediate effect of the two remedies to me appears of insufficient weight to turn the scales against the orderly procedure of appeal. The argument is one of expediency not of logic. We may not forget that after hearing the trial court upon reflection might decide that a temporary injunction should not issue. And with this decision the plaintiff might be content, thus avoiding the expense and delay of review in this court.
Not long ago we refused to recognize as a ruling precedent an earlier decision of this court made in evident distrust of the judicial discretion of a trial judge. Bolton v. State, ante, p. 308, 60 N.E.2d 742, 745. By the majority opinion herein, founded on the Fry case, we perpetuate the same kind of error of which we accused our predecessors on this bench. The remedy for unwise or erroneous decisions of nisi prius judges is not to usurp their powers. I think this is an improper use of *Page 486 the extraordinary writ of prohibition. We should get back to the sound rule of State ex rel. v. Gleason (1918), 187 Ind. 297, 119 N.E. 9. The Fry case and later cases based thereon should be overruled in so far as they conflict with the views herein expressed and the temporary writ of prohibition heretofore issued should be dissolved.
Note. — Reported in 62 N.E.2d 152.