I am unable to agree with this opinion. It overrides provisions of the Constitution and statutes of Iowa and is contrary to all decisions and all statements of commentators which have come to my attention. I fear my brothers may have been unconsciously influenced by a desire *Page 711 to secure a result deemed desirable in this one case. Decisions written to secure a predetermined result frequently make bad law.
Division I of the opinion states:
"Although not a controverted proposition in this case, it may well be noted that generally the courts have held that declaratory-judgment procedure may be employed to challenge police-power statutes of the nature of those here involved which forbid or require certain practices and provide penalties for noncompliance." (Italics supplied.)
Nevertheless, Division VII quotes at length from an article by Professor Borchard, an able and leading text writer upon declaratory judgments, pointing to the advantages and desirability of testing by declaratory action the validity and applicability of statutes such as those here involved. This quoted statement, with which I agree, is unnecessary to the opinion because that proposition is not controverted in this case.
The question in this case is not whether a declaratory action to test such a statute is proper but whether a defendant who delays until after a criminal prosecution has been instituted may institute and maintain such declaratory action while such criminal prosecution is pending. Division V of the majority opinion holds that it may be instituted and maintained when the pending criminal prosecution is before a justice of the peace and involves complicated legal questions, because such officer may be a layman not learned in the law, and because if the accused is convicted and appeals the case would be triable de novo in the district court.
Part of Division V is devoted to a discussion of jury trials in criminal prosecutions before justices of the peace, and authorities are cited which hold a verdict may not be directed and instructions may not be given such a jury. All such discussion is beside the point because the majority concedes that the accused only, and not the prosecution, may demand a trial by jury. If the accused does not demand a trial by jury the trial is to the justice of the peace. It is obvious that one who, at his election, may be tried to the justice may not base a right to declaratory relief upon the complaint that a jury in *Page 712 justice court acts without instructions or direction by the justice. Hence the afore-mentioned quotation from Professor Borchard, with which I agree, and the cited authorities on jury procedure in criminal prosecutions in justice court, with which I agree, are surplusage. They may appear impressive but they afford no support for the majority decision.
Another quotation from Professor Borchard in Division VII of the opinion states that the broad conception of "crimes" and "criminal" law should be analyzed and broken down, and police-power measures carrying a penalty should no longer be classified as "crimes" or exposed to the same methods of adjudication as crimes. The majority expresses its accord with these suggestions and bases part of its reasoning thereon. Professor Borchard does not say such suggestions are the law but that they should be. They are not the law in Iowa. The only way they might become the law would be by legislative enactment. If and when the legislature changes the statutes to provide for criminal procedure such as that suggested by Professor Borchard such procedure should be recognized by the courts. Until that time this court should not infringe upon that legislative prerogative.
However, I do not imply that the remedy afforded by declaratory procedure would not be applicable to such situations provided the accused did not delay his action until after the criminal prosecution was commenced.
Although the majority opinion quotes freely from statements from Professor Borchard not in point, it overlooks his statement concerning the precise proposition here involved. In Borchard on Declaratory Judgments, Second Ed., 1022, in the chapter on Penal Legislation — Civil Adjudication or Criminal Prosecution, it is stated, under the heading of Conditions of Seeking Declaration:
"On the other hand, not every doubter of his rights under a law carrying a criminal penalty should be permitted to invoke the protection of a civil adjudication. If the District Attorney actually obtains an indictment or begins his prosecution, the rules of equity should limit the occasion for the court's exercise of its power of restraint [usually confined to *Page 713 irreparable injury to property. Cline v. Frink Dairy Co., 1927,274 U.S. 445, 47 S. Ct. 681, 71 L. Ed. 1146], and the prosecuting officer must have considerable leeway in selecting the offense and offenders to be indicted. Where the prosecution is imminent but not yet begun, equity exercises more latitude in protecting property or a business against the impending prosecution. Only where the District Attorney fails to initiate the suit, or where he threatens to prosecute or charges a violation of law and then fails to follow up the threat or charge, is the foundation laid for an action by the party charged for a declaration either that the statute or regulation is invalid or that his conduct is privileged, i.e., not within the terms of the prohibitory statute."
The foregoing statement of the rule was cited and followed by Judge Parker and his distinguished associates of the Fourth Circuit Court of Appeals, in Spence v. Cole, 4 Cir., N.C., 137 F.2d 71, 72, which involves prior pending criminal prosecutions for violations of a city ordinance. The court said:
"We may assume that the enforcement of the ordinance against plaintiffs under the circumstances here disclosed would constitute a violation of their constitutional rights. * * *
"We are asked to hold that plaintiffs are entitled to a declaratory judgment establishing their rights. The granting of a declaratory judgment, however, is a matter resting in the sound discretion of the court (Aetna Casualty Surety Co. v. Quarles, 4 Cir., 92 F.2d 321); and it is clear that the discretion ought not be exercised in a case of this character where its only effect would be to decide matters, as pointed out in the quotation above, which could be better decided in the criminal courts of the state. This is particularly true in view of the fact that criminal actions are pending against plaintiffs in the state courts involving the identical questions as to which plaintiffs ask a declaratory judgment. See Borchard Declaratory Judgments 2d ed. pp. 312, 653, 1022; Aetna Casualty Surety Co. v. Quarles, supra.
"The decree appealed from will accordingly be reversed."
Updegraff v. Attorney General, 298 Mich. 48, 51, 298 N.W. 400,401, 135 A.L.R. 931, was a declaratory action brought *Page 714 by one who was being prosecuted before a justice of the peace for a misdemeanor arising through his alleged failure to observe the quarantine on dogs. In that case it is stated:
"While plaintiff raises 14 questions in his petition, they relate to matters that may be presented in the criminal case that is pending. We condemn the practice of a person who, after being charged with violating the law, then asks for a declaratory judgment in an independent cause, with the result that two cases involving the same subject matter are pending at the same time. If such a practice were permitted, it would cast an unnecessary burden on the courts and the law enforcement authorities. The general rule is set forth in Woolard v. Schaffer Stores Co.,272 N.Y. 304, 311 (5 N.E. [2d] 829, 109 A.L.R. 1262); 273 N.Y. 527 (7 N.E. [2d] 676, 109 A.L.R. 1267), where Justice O'Brien said: `When, however, another action between the same parties, in which all issues could be determined, is actually pending at the time of the commencement of an action for a declaratory judgment, the court abuses its discretion when it entertains jurisdiction. Colson v. Pelgram, 259 N.Y. 370 (182 N.E. 19).'"
The following statement appears in 23 Corn. L.Q., 314, 318:
"Many courts, while refusing to enjoin a threatened criminal prosecution, have, under the Declaratory Judgment Act, passed on the constitutionality of the statute or ordinance involved; butno case has been found in which a court has given a declarationon an issue vital to a criminal prosecution which has alreadybegun." (Italics supplied.)
One impelling reason why declaratory relief should be denied when it would determine issues essential to a criminal prosecution already commenced is that it would interfere with the jurisdiction of the criminal courts. To permit those charged with crime to thereafter institute and maintain independent actions for declarations of their innocence would tend to impede law enforcement and the rule should be limited to circumstances similar to those warranting injunctive relief, which the trial court found were not present in the *Page 715 case at bar. See 29 Ill. L. Rev. 216; Borchard on Declaratory Judgments, Second Ed., 1022, supra.
The main basis of the majority opinion, as set out in Division V thereof, is that the decision of the justice of the peace on legal propositions is not worthy of full faith and credit because he may be a layman not learned in the law. That is not for this court to say. Article I, section 11, Constitution of Iowa, provides in part:
"All offences less than felony and in which the punishment does not exceed a fine of One hundred dollars, or imprisonment for thirty days, shall be tried summarily before a Justice of the Peace, or other officer authorized by law * * * saving to the defendant the right of appeal * * *." See State v. Church, 8 (Clarke) Iowa 252.
To the same effect is section 13557, Code of Iowa, 1939. The constitution qualifies a justice of the peace to adjudicate such cases. This court should not modify the constitutional provision by holding such officer is not qualified or that his adjudications should be discredited.
The majority opinion cites no authority in support of its holding that declaratory relief is proper because the criminal prosecution is pending before a justice of the peace. The distinguished trial court did not so hold. Nor did the able counsel for appellee make any such contention. No case, either criminal or civil in origin, has come to my attention in which this illusory theory has even been suggested.
Under such theory it might be argued that declaratory relief would be proper in a case pending before the deputy industrial commissioner or the industrial commissioner when the case involved complicated legal questions which a layman could not settle "with equal facility" to the district court. Yellow Cab Transit Co. v. Overcash, 8 Cir., Mo., 133 F.2d 228, 232, was an action to enjoin a proceeding before a workmen's-compensation commission and for a declaratory judgment. That case involved difficult legal questions. Apparently the facts were not in dispute. The Circuit Court of Appeals of this circuit denied declaratory relief, stating:
"The grounds which appellant advances here in support *Page 716 of its petition for a declaratory judgment, as we have seen, may be presented as defenses before the Missouri Compensation Commission and before the Missouri courts to which appellant has the right to appeal."
The majority opinion cites and quotes from the decision by Judge Parker in Carbide Carbon Chemicals. Corp. v. United States Industrial Chemicals, Inc., 4 Cir., Md., 140 F.2d 47, 49, as to general rules for declaratory actions in civil cases. The part of that decision quoted in the majority opinion does not include the rule therein enunciated which follows immediately thereafter:
"Ordinarily, the court first acquiring jurisdiction of a controversy should be allowed to proceed with it without interference from other courts under suits subsequently instituted."
That decision also states:
"When it is said in the cases that declaratory relief should be refused `where a proceeding involving identical issues is already pending in another tribunal where they can be tried with equal facility', the `equal facility' refers to matters affecting the convenience of parties and witnesses and the position of the case on the docket as affecting a speedy hearing, not to the knowledge or lack of knowledge of the trial judge."
In Division VII the majority opinion states that no court has ever considered the legal theory it has evolved. That statement is correct to the extent that apparently no court or lawyer has ever suggested that declaratory relief would be proper because the criminal prosecution was pending before a judge who, although qualified by constitution or statute, was not a lawyer. Apparently the reason is that courts have immediately recognized that a doctrine which would permit interference with pending criminal prosecutions would be dangerous and unsound.
In Updegraff v. Attorney General, 298 Mich. 48, 298 N.W. 400, 135 A.L.R. 931, supra, in which the pending prosecution before a justice of the peace apparently involved legal questions only, the Supreme Court of Michigan was not troubled by any theory that the competency of the justice to *Page 717 determine such questions should be considered. That decision states: "We condemn the practice" of seeking declaratory relief in such cases.
The majority opinion points out that the Michigan declaratory-judgment act differs from ours. In Division I of the majority opinion it is noted that the difference is not a decisive factor. In any event there is no such difference as would warrant a holding by this court approving a doctrine which was absolutely "condemned" by the Michigan Supreme Court. Moreover, as noted in Division V, the Iowa rule in question "is taken from the federal act." The statement in the majority opinion that there is no analogous case under a like declaratory-judgment act, overlooks Spence v. Cole, supra, 4 Cir., N.C., 137 F.2d 71, in which the prior pending actions were for petty offenses, to wit, violations of city ordinances, and the court held declaratory relief was not proper "in view of the fact that criminal actions are pending," citing as authority the page from Borchard on Declaratory Judgments from which I have already quoted [1022]. If this is "regrettable" language it is merely a statement of the rule heretofore uniformly followed.
In Division V the majority discusses "equal facility" and overlooks the definition of that term by Judge Parker in Carbide Carbon Chemicals Corp. v. United States Industrial Chemicals, Inc., 4 Cir., Md., 140 F.2d 47, 49, that "the `equal facility' refers * * * not to the knowledge or lack of knowledge of the trial judge."
In Division VII the majority quotes, from 52 Yale L.J. 446, "Speed is here a factor." But in the same division the majority points out that justice-court trials of this nature are "summary." That means without delay or formality. The prosecution in this case was instituted June 11, 1943, and was stopped by injunction. The declaratory judgment was not rendered by the district court until November 1944, and is just now (1946) being decided upon appeal to this court. The criminal case could have been tried to the justice of the peace within one week and if the accused had been acquitted the state had no right of appeal.
After such a criminal prosecution is instituted the accused *Page 718 could usually have his case tried in justice court and, if convicted, have his trial upon appeal, sooner than he could have secured the trial of a declaratory-judgment suit instituted when the criminal prosecution was started. Speed is a factor only where the law-enforcing officers delay filing charges and not where the defendant delays his declaratory action until after charges are filed.
Some of the reasoning of the last paragraph of Division VII is based upon the statement that one who appeals from justice court to district court is "confined to the limited pleadings of a summary proceeding." That statement is erroneous. It is well settled that the accused may plead over.
In Division VI the majority would limit the scope of its decision. In so doing the opinion refers to felonies, which are triable in district court only, indictable misdemeanors, which are triable in district and municipal courts, and nonindictable misdemeanors or petty offenses, which are triable in justice courts, superior courts, municipal courts, police courts, and mayors' courts.
The opinion states that "proceedings for declaratory-judgment relief should not interfere with or interrupt" the trial of the felonies. But the majority apparently assumes the reason for the rule is that felonies are triable only in district court. Accordingly, the majority would put indictable misdemeanors (triable in district court and in municipal court as in district court) in the same category and would limit its decision to nonindictable misdemeanors (petty offenses).
This theory that the right to declaratory relief is in part dependent upon whether the offense charged is a petty offense (nonindictable misdemeanor), as distinguished from an indictable misdemeanor, is not to be found in any declaratory-judgment decision which has come to my attention. Apparently it will be promulgated for the first time by the majority opinion. Perhaps its origin is immaterial but it closely resembles statements relative to a procedural question in an opinion recently circulated by the writer of this dissent in State v. Berg,237 Iowa 356, 21 N.W.2d 777.
However, such classification has no bearing upon the right to declaratory relief. The true rule, recognized by most of *Page 719 the courts which have allowed the challenging of penal laws by declaratory action, is that where the activity is malum in se courts will not allow the accused to maintain actions for declaratory judgment, even before the prosecution is instituted, and in borderline cases, such as the interpretation of gambling statutes, courts hesitate to allow such procedure. The line of demarcation is not between indictable and nonindictable offenses. It is based upon the nature of the activity rather than the penalty.
It is true that in this state the great majority of cases in which the remedy would be available are nonindictable misdemeanors. But there are some Iowa statutes which are in the indictable-misdemeanor class because the penalty for their violation is more than $100 or thirty days in jail, but which, nevertheless, are police-power statutes of the nature of those here involved. Obviously, violations of such statutes are in the same category as petty offenses, as concerns the right to test the statutes by declaratory actions. In that connection, it may be noted that the statement from Borchard on Declaratory Judgments, hereinbefore quoted, refers to indictments.
Prosecutions for petty offenses may be in justice court, police court, mayor's court, superior court, or municipal court. Trials to the superior court, mayor's court, police court, and justice court are all summary, with the right of defendant to appeal to district court. Judges of the superior court are lawyers.
With respect to prosecutions for violations of municipal ordinances, all of which are nonindictable offenses, trials to the municipal, superior, mayor's, police, and justice-of-the-peace court, are all summary and appealable to the district court. Judges of the municipal court are lawyers and municipal and superior courts have jurisdiction of declaratory actions.
The basis of the holding in Division VI is that a declaratory action should be available to one who is being prosecuted for a petty offense because such trials are summary and are not tried in such manner as to decide complicated legal questions with equal facility to a declaratory-judgment action in the district court. If the summary nature of the trial is a *Page 720 determining element the majority opinion would not only interfere with authority imposed by the constitution and statutes upon justices, police judges, and mayors, who need not be lawyers, but would also impair the authority of municipal and superior judges, who are lawyers.
The conclusion of Division VI is that the decision must be limited to the narrow question whether the pendency of criminal proceedings for a petty offense deprives the district court of any discretion whatever to entertain a declaratory action. This conclusion overlooks the exception to the general rule, which is that, under certain conditions, such as irreparable injury to property, the court may exercise its power of restraint, even after indictment. See Borchard on Declaratory Judgments, Second Ed., 1022, hereinbefore quoted.
Division VII states another limitation to the decision is that, "the action for a declaratory judgment is directly concerned with the operation of a legitimate business enterprise, concerning which the state, in the exercise of its police power, has imposed valid restrictions the legal effect of which is debatable, and, in good faith, the plaintiff asks to be advised what such restrictions mean in the eyes of the law." That statement simply overlooks the issue. No one contends the action would not lie if brought before the pending criminal charge was instituted. But it is clear in this case that the declaratory action was aimed directly at the criminal prosecution. The second paragraph of the majority opinion states that the petition for declaratory judgment asserted, "on June 11, 1943, an inspector * * * filed an information before a justice of the peace * * * charging plaintiff," etc.
The same paragraph shows that the dispute as to plaintiff's legal status and rights was one of long standing. Had plaintiff desired an adjudication thereof he could have brought this action at any time within more than a year prior to June 11, 1943. But he did not elect to do so. He delayed until the criminal court had acquired jurisdiction of the case and then enjoined the prosecution and sought a declaratory judgment. The Michigan Supreme Court condemns such procedure, federal courts refuse to permit it, commentators state it is improper, and no writer or court has heretofore approved it. *Page 721
Our recent decision in Peff v. Doolittle, 235 Iowa 443,15 N.W.2d 913, although not here directly in point, reaffirms the principle that a court having possession of a person or property cannot be deprived of the right to deal therewith until its jurisdiction is exhausted and that no other court has the right to interfere with the proceedings. See discussion in Ex parte Baldwin, 69 Iowa 502, 29 N.W. 428.
The result of the majority decision will be to interfere with the administration of criminal justice in such courts. Moreover, a civil action in justice court will frequently be met with a subsequent declaratory-judgment action in district court involving the same questions. This procedure will infringe upon the powers granted by the constitution to justices in civil cases also and will interfere with the orderly disposition of such litigation.
Where the declaratory action is brought to determine the propriety of a criminal prosecution in justice court the practical result, in most cases, will be to stay that prosecution, even though prosecution be not stayed by temporary injunction, as it was in the case at bar. The result of the judicial diminution, by the majority opinion, of the constitutional and statutory qualifications and powers of justices of the peace, mayors, and police judges will be unfortunate.
Although the majority opinion is not based thereon, perhaps it should be noted that Employers' Liability Assur. Corp. v. Ryan, 6 Cir., Ohio, 109 F.2d 690, relied upon by the trial court, did not involve a prior pending action between the parties to the declaratory action. See Western Supplies Co. v. Freeman, 6 Cir., Ohio, 109 F.2d 693, decided by the same court on the same day. See, also, Brillhart v. Excess Ins. Co., 316 U.S. 491,62 S. Ct. 1173, 86 L. Ed. 1620; Indemnity Ins. Co. v. Schriefer, 4 Cir., Md., 142 F.2d 851; State ex rel. United States Fire Ins. Co. v. Terte, 351 Mo. 1089, 176 S.W.2d 25, which discusses the general rule and lists many federal and state decisions; 135 A.L.R. 934; 142 A.L.R. 40; 16 Am. Jur. 295, section 22; 1 C.J.S. 1018, 1029, section 18.
*Page 722BLISS, C.J., and GARFIELD, J., join in this dissent.