Vogeler, Alan Roth

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University of Kentucky

Kentucky Law JournalVolume 28 | Issue 2 Article 141940Equity--Injunction against an Act Also a CrimeAlan Roth VogelerUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Criminal Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Comment is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky LawJournal by an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationVogeler, Alan Roth (1940) "Equity--Injunction against an Act Also a Crime," Kentucky Law Journal: Vol. 28 : Iss. 2 , Article 14.Available at: https://uknowledge.uky.edu/klj/vol28/iss2/14CASE COMMENTSEQUITY-INJUNCTION AGAINST AN ACT ALSO A CRIMEThe Commonwealth sued on the relation of the Jefferson CountyAttorney to enjoin defendant from engaging in the business of makingloans of $300 or less and charging interest in excess of 6%, withouthaving been granted a license to engage in the small loan business,contrary to Kentucky Statutes 883i-1 to 883i-32, inclusive, which madesuch act a crime and provided a penalty therefor. Defendant used alife insurance policy device which forced all applicants for loans toobligate themselves to pay to the defendant company a sum amountingto more than 6% of the original loan. From a decree denying theinjunction, complainant appeals. Held: Reversed and remanded.Commonwealth ex rel. Grauma v. Continental Co., Inc., 275 Ky. 238,121 S.W. (2d) 49 (1938).Equity will not act to enforce the criminal law by enjoining acrime as such. But the mere fact that an act sought to be enjoinedalso subjects the actor to criminal prosecution will not serve to excludethe exercise of equity jurisdiction if the facts of the case are such thatequitable relief is the proper remedy.2Thus equity has enjoined an act, even though it be a crime, incertain classes of cases, namely, purpresture, irreparable injury toproperty, or nuisances. 3 Obviously the instant case is not one of irrepa-rable Injury to private property nor of purpresture. Thus it wouldseem that the court is either treating an unlicensed small loan businessas a nuisance, or extending the criminal jurisdiction of equity beyondthe aforementioned classes of cases.Kentucky has long recognized the power of equity to enjoin nui-sances at the suit of the state.' Thus it has enjoined the maintenanceof a pool room,5 of an auditorium for staging prize fights," and of abawdy house.7 In those cases the maintenance of such establishments'Atty. Gen'l. v. Utica Ins. Co., 2 Johns. Ch. 371 (N.Y. 1817); Com.v. Kentucky Jockey Club, 238 Ky. 739, 38 S.W. (2d) 987 (1931); Statev. Publix Theater Corp. of N.Y., 37 S.W. (2d) 248 (Texas 1931).2In re Debs, 158 U.S. 564, 15 S. Ct. 900, 39 L. Ed. 1092 (1894);U.S. v. Rosoff, 27 F. (2d) 719 (C.G.A. 2d, 1928); State v. Lindsay, 85Kan. 79, 116 Pac. 207 (1925); State v. McMahon et al., 128 Kan. 772,280 Pac. 907 (1929); Pomeroy, Equity Juris. (2d ed. 1919) sec. 1894.*Walsh, Equity (1930), pp. 198-212; Pomeroy, Equity Juris. (2d ed.1919), sec. 1893-4; 2 Story, Equity Juris. (11th ed. 1873), sec. 921 et seq.;Walsh, Equitable Relief Against Nuisance, 7 N.Y.U. Law Rev. 352(1929); Note, (1931) 20 Ky. L.J. 163.SCom. v. McGovern, 116 Ky. 212, 75 S.W. 261 (1903), and casesthere cited.'Respass v. Com., 131 Ky. 807, 115 S.W. 1131 (1909).6 Com. v. McGovern, supra, note 4.'King v. Com., 194 Ky. 143, 238 S.W. 373 (1922).K. L. J.-11KENTucKY LAw JOuRNALis more traditionally a nuisance, directly affecting the health, safety, ormorals of the public. On the other hand, the court has enjoined thepractice of dentistry without a license,8 and the operation of a drugstore filling prescriptions without employing a licensed pharmacist.,In the principal case much reliance is placed on the case of Ken-tucky Dental Examiners v. Payne.10 In that case a competent dentistwho had not obtained a license was enjoined from practicing his pro-fession until he complied with the law and obtained one. The courtstated that unlicensed dentistry is injurious to the public health andtherefore a nuisance." The case has been criticised because theunlicensed practice by a competent dentist is not directly injurious tohealth, and thus not within the scope of the traditional nuisance, eventhough practice by an incompetent dentist could clearly be enjoined.,If the state must regulate the practice of dentistry tq protect the publichealth, such regulation is provided for by its criminal law," and ifinjunctions are granted they merely repeat the prohibitions of thestatutesAssuming, however, that there is a sufficiently close relation betweenthe licensing of dentists and the public health to permit the court toenjoin practice without a license as a public nuisance, there still doesnot appear to be any adequate basis for allowing the injunction of theoperation of a small loan business without a license. Operation of asmall loan business, licensed or not, does not, either directly or indirect-ly, affect the public health, morals, or safety. The injury sought to beprevented goes rather to the economic well-being of a certain class ofcitizens. That interest is generalized by the court under the term "the$Ky. State Bd. of Dental Examiners v. Payne, 213 Ky. 382, 281 S.W.188 (1926); Jones v. Com., 222 Ky. 173, 300 S.W. 346 (1927); Com.ex rel. Atty. Gen'l. v. Pollitt, 258 Ky. 489, 80 S.W. (2d) 543 (1935). Inthe Jones case no question was raised as to the propriety of equityjurisdiction. The Pollitt case relied heavily upon the Payne case andthe case of Com. v. Brown, infra, note 9. In the Brown case, however,the appellant's occupation was imminently hazardous "to the lives andhealth of the public", and therefore a nuisance.I Com. v. Brown, 239 Ky. 197, 39 S.W. (2d) 223 (1931).'10 Supra, note 8.11213 Ky. 382, 386; 281 S.W. 188, 190."See Note, 75 Pa. L. Rev. 73, to the effect that, "It can hardly becontended that the practice of dentistry without a license constitutesa menace to the public health or welfare, in view of the fact that, uponobtaining a license from the board, the very acts now sought to berestrained would receive legal sanction.""The Court in the principal case, at page 250, said, "The preven-tion of crime is not the primary purpose of the Small Loan Law, butit has for its underlying purpose the protection of the public and thepublic welfare." And further, "The purpose of the statute was notto create a crime, but to provide for the public welfare." All criminalstatutes are enacted, not for the purpose of creating a crime, but toprovide for the general welfare. Were this the sole basis of equityjurisdiction, analogously, an injunction should be granted to preventany and all crimes."'McClintock, Equity (1936), pp. 287-288.CASE COMMENTS 257general welfare." But as has been pointed out, although the violationof a statute necessarily affects the public welfare, equity will not ordi-narily enjoin such violation unless it is a purpresture, irreparableInjury, or nuisance.umThe court goes far in the instant case in extending the jurisdictionof equity by allowing the injunction of an unlicensed small loan busi-ness. And following the approach that wherever the general welfareis endangered by criminal acts, or criminal procedure is inadequate toprevent crime, equity may relieve by injunction, can lead only to theresult that equity could enforce the criminal law as such,1 in disregardof the constitutional rights guaranteed a defendant in a criminalprosecution.7  ALAN ROTH VOGEaE"VENDOR AND PURCHASER-EJECTMENT BY THE VENDOR.Plaintiff contracted to sell a house and lot to defendant for thesum of $2,000, of which $100 was then paid, the remainder to be paidin monthly installments of $25. Defendant was placed in possession,agreeing that if he defaulted in his installments, or if he failed to keepup the insurance, the vendor should have the right to enter and takepossession, and that any payments made under the contract shouldremain in the vendor as liquidated damages and rent for the use of theproperty. Defendant paid only two of the monthly installments anddefaulted in the payment of the insurance premiums, whereupon thevendor brought an action of ejectment The court held for the plain-tiff because the vendee's payments did not amount to such a sum thathe could be deemed to have acquired a "substantial equitable title" inthe land. Masch not v. Moore, 278 Ky. 36, 120 S.W. (2d) 750 (1938).The courts in most jurisdictions will entertain an action of eject-ment when the vendee has defaulted in the payment of his contractinstallments.1 The action is essentially a possessory one,2 and its"Supra, note 3.' Courts saying that the basis of equity jurisdiction in this classof cases is the inadequate remedy at law include Illinois, in People v.Clark, 268 Ill. 156, 108 N.E. 994 (1915), and Kansas, in State v.McMahon, supra, note 2. See, also, 2 Story, Equity Juris. (11th ed.1873), sec. 924. The Kentucky court also follows that trend of reason-ing in the Payne case. But see Note, (1931) 20 Ky. L.J. 340; Note,(1927) 75 Pa. L.R. 73; Dean v. State, 151 Ga. 371, 106 S.E. 792 (1921)."? People v. Seccombe, 103 Cal. App. 306, 284 Pac. 725 (1930) ; Statev. Saunders, 66 N.H. 39, 25 Atl. 588 (1889); State v. Diamint, 73 N.J.L.131, 62 Atl. 286 (1905); State v. Martin, 77 N.J.L. 652, 73 At. 548(1909); Heddon v. Hand, 90 N.J. Eq. 583, 107 Atl. 285 (1919); Note,(1926) 6 Boston U.L.R. 128; and Note, (1920) 20 Col. L.R. 605.' Burnett v. Caldwell, 76 U.S. (9 Wall.) 290, 19 L. Ed. 712 (1869);Goode v. Temple, 221 Ala. 588, 130 So. 202 (1930); Lewis v. Rouse, 29Ariz. 156, 240 Pac. 275 (1925); Empire Inv. Co. v. Mort, 169 Cal. 732,147 Pac. 960 (1915); Roller v. Smith, 76 Colo. 371, 231 Pao. 656 (1925);Drollinger v. Carson, 97 Kan. 502, 155 Pac. 923 (1916); Balesh v. Alcott,257 Mich. 352, 241 N.W. 216 (1932); Rose v. Loyd, 98 Mo. 253, 11 S.W.622 (1889); Plet v. Wilson, 134 N.Y. 339, 31 N.E. 336 (1892); Credle v.

Equity--Injunction against an Act Also a Crime

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Equity--Injunction against an Act Also a Crime

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