"(2) That complainant has a full, adequate, and complete remedy at law.

"(3) That the said bill of complaint seeks to restrain criminal prosecutions.

"(4) That the bill of complaint is in effect a suit against the State.

"(5) That the act (Act 29 of the Public Acts of 1869), as amended, is not unconstitutional for any of the reasons alleged in complainant's bill.

"On August 25th the demurrer was overruled, and at the same time a temporary injunction was directed to issue."

The case is here by appeal. The statute involved in this proceeding is a very old one. Its validity has not before been questioned in a legal proceeding. It is contended that the bill of complaint is filed to enjoin State officials from enforcing criminal prosecutions and that upon the proposition of invoking the aid of the chancery court in such cases, while there is a wide disagreement in the authorities, the question is not a new one in this State. It is claimed that in a mandamus case, brought to set aside an injunction which restrained the State game and fish warden from criminally prosecuting violators of a statute upon the ground that it was unconstitutional, the late Justice HOOKER, speaking for the court, said:

"It is a general rule that criminal prosecutions cannot be restrained by injunction. Once have it understood that they may be, and the public would labor under additional embarrassment to the already great obstacles to the prevention of crime. There is no excuse, upon reason or authority, for enjoining the prosecution of the complainant for violations of the law providing for a close season. If the law were unconstitutional, it would be available by way of defense to the criminal charge, and therefore no occasion for chancery to take jurisdiction for the want of an adequate remedy at law. See Mechem, Public Officers, § 992, and cases cited. It has never been found necessary or expedient that the validity and construction of criminal laws should be determined in chancery, for the guidance of courts of criminal jurisdic

tion." Osborn v. Charlevoix Circuit Judge, 114 Mich. 655 (72 N. W. 982).

In Pratt Food Co. v. Bird, 148 Mich. 631 (112 N. W. 701, 118 Am. St. Rep. 601), it was said:

"A court of equity will not transfer to its own jurisdiction the trial of a criminal case; and this though the prosecution may fall with some hardship upon the accused party."

It is urged that, unless we are ready to overrule the case of Osborn v. Charlevoix Circuit Judge, supra, it follows that the demurrer should have been sustained.

As we understand the position of the complainant, it is not contended that equity has jurisdiction, as a general rule, to restrain criminal prosecutions, nor is it contended that an equitable proceeding is proper merely for the purpose of determining the constitutionality of an act of the legislature. It is contended, however, that this bill of complaint sets out other grounds for equitable relief than simply the restraining criminal prosecutions as appears from what we have already stated, and that the averments of the bill of complaint are sufficient to clothe the court with jurisdiction, and, having jurisdiction, the court will retain the cause, and, if necessary to meet the ends of justice, will determine the constitutionality of the act of which complaint is made. There can be no question that the general rule is as stated in Osborn v. Charlevoix Circuit Judge, supra. It may be noted that in that case the court went into the merits of the case and held the act to be constitutional. That conclusion disposed of the question upon the merits, and a determination of the jurisdictional point was not necessary, however pertinent and sound it may have been.

While the general rule is as above stated, we think it is established, by the weight of authority, that in certain classes of cases, of which the one at bar is a good example, equity will take jurisdiction. Referring to the contention of defendants that complainant has a full, adequate, and complete remedy at law, it is true that it has a legal rem

edy. It may refuse to comply with the provisions of the act in question, and so expose itself and its responsible officers to prosecution under the act. Upon such prosecution, it may set up, in its defense, the alleged unconstitutionality of the law; and, if upheld in its contention, it will escape punishment either by way of fines or imprisonment. But suppose complainant should be illy advised, and upon final adjudication it is determined that the law is valid, it then becomes liable to all the penalties provided by the statute.

If a year should be consumed in reaching a legal determination of the question, this complainant, according to the averments in the bill, would (in the event of an adverse decision) be liable to fines aggregating more than $200,000, besides a possible term of imprisonment for some one or more of its responsible officers. It is easily to be supposed that a much longer period of time might elapse between complaint and final conviction. Under such circumstances, it is not difficult to understand that counsel would hesitate to advise a client to take a course involving the possibility of such heavy penalties; and it is easier still to apprehend how reluctant the party himself would be to incur such a grave hazard.

The jurisdiction of a court of equity, in cases like the one at bar, depends, not upon the absence of a legal remedy, but upon its inadequacy, and the exercise of such jurisdiction rests in the sound discretion of the court. In the case of Ex parte Young, 209 U. S. 123 (28 Sup. Ct. 441, 13 L. R. A. [N. S.] 932, 14 Am. & Eng. Cas. 764), where the same contention, upon the question of jurisdiction, as is here insisted upon was urged, Mr. Justice Peckham said:

"It is further objected that there is a plain and adequate remedy at law open to the complainants and that a court of equity, therefore, has no jurisdiction in such It has been suggested that the proper way to test the constitutionality of the act is to disobey it, at least once, after which the company might obey the act pend

case.

ing subsequent proceedings to test its validity. But, in the event of a single violation the prosecutor might not avail himself of the opportunity to make the test, as obedience to the law was thereafter continued, and he might think it unnecessary to start an inquiry. If however, he should do so while the company was thereafter obeying the law, several years might elapse before there was a final determination of the question; and, if it should be determined that the law was invalid, the property of the company would have been taken during the time, without due process of law, and there would be no possibility of its recovery.

"Another obstacle to making the test on the part of the company might be to find an agent or employé who would disobey the law, with a possible fine and imprisonment staring him in the face if the act should be held valid. * * *It is true the company might pay the fine, but the imprisonment the agent would have to suffer personally. *

*

'All the objections to a remedy at law as being plainly inadequate are obviated by a suit in equity, making all who are directly interested parties to the suit, and enjoining the enforcement of the act until the decision of the court upon the legal question."

See, also, Cotting v. Stock Yards Co., 183 U. S. 79 (22 Sup. Ct. 30); Dobbins v. Los Angeles, 195 U. S. 223 (25 Sup. Ct. 18); State, ex rel. Ladd, v. Cass County District Court, 17 N. D. 285 (115 N. W. 675, 15 L. R. A. [N. S.] 331); Bonnett v. Vallier, 136 Wis. 193 (116 N. W. 885, 17 L. R. A. [N. S.] 486, 128 Am. St. Rep. 1061). These cases and those therein cited and discussed, in our opinion, by the weight of authority, establish the principle that equity has jurisdiction to interfere, by injunction, in a case where public officials are proceeding illegally and improperly under claim of right, where it is alleged, as in the instant case, that the complainant thereby suffers irreparable injury.

Upon the meritorious questions presented by the bill, no opinion is expressed. When the defendants have answered and a hearing is had, it will be time enough to consider that phase of the case. In the meantime, the State is

suffering no injury, for, while an interim injunction prevents the collection of the fees under the act, an adequate bond seems to have been required by the court below. The order is affirmed, without costs to either party. STEERE, C. J., and MOORE, MCALVAY, STONE, and OSTRANDER, JJ., concurred.

R. J. EDERER CO. v. KAVANAUGH.

PRINCIPAL And Agent-SALES-AUTHORITY TO PURCHASE. Evidence that plaintiff sold to an agent of defendant fishing nets ordered in the name of defendant to be used in a branch of defendant's business in a town separate from the main office; that the agent had been appointed by defendant to conduct his fishing business at the place in question for half the profits, and was to furnish a gasoline tug which should be kept in repair at the expense of the business; that supplies, gasoline and wages should be paid for from the proceeds, the principal to furnish money necessary to run it and allow the agent to check out funds from the bank as such agent, with evidence tending to show notice to defendant of the purchase, warranted judgment for plaintiff against the principal for the price of the nets. OSTRANDER and STONE, JJ., dissenting.

Error to Bay; Collins, J. Submitted April 2, 1912. (Docket No. 152.) Decided February 19, 1913.

Assumpsit by R. J. Ederer Company against William P. Kavanaugh for goods sold and delivered. Judgment for defendant on a verdict directed by the court. Plaintiff brings error. Reversed.