The San Francisco call., 1899-04-02
If or without warrant or process of

Upon lne argument II appear eu,
among a number of incidental prob
lens, that there are involved in the
case chiefly two questions:
/. Is a peace officer empowered by
statute or by virtue of his office to en-
ter forcibly, without warrant, upon
places such as racecourse when he
has reasonable grounds to believe that
an offense is being or is about to be
committed?
2. VIII a court of equity interfere?
l. The modified injunction permits
the defendants to enter upon plain
tf's premises upon belief that an Of
tense is being committed, whether
the offense be a felony or a misde-
meanor. Though the word offense,
used in the modified injunction, in
cludeS felonieS as well as misdemean-
ors, and though defendants would be
justified in entering where a felony
from the pleadings and the arguments
of counsel that the "belieff of de-
PENDANTS was as to the commission of
miSdemeanor.
To state that a police officer can ar
rest for misdemeanor only when
armed with a warrant, or when the
m1sdemeanor is committed In his
presence, is merely to state what has
ance, for centuries, what is the stat
ute law of this commonwealth, and
what is principle embodied in every
set of grievances put forth by the
Declaration of independence. / do not
understand that this rule is denied.
Under our statutes when a person
who has committed a msdemeanor in
the presence of an officer, or who is
sought upon warrant, is within a
house, such police officer may forcibly
enter such house, after having de-
manded admittance and stated his
business. 1t is claimed by the plain
tiff that these restrictions upon the
TO places where the public gather,
even though such places are private
property; but the research of coun-
sci, and ii has been most diligent has
failed to find in the statute law of the
State any provision which distin
cuisines the rights Of d peace officer
when seeking to enter a place such
as is owned by plaintiff from those
he has when demanding admission to
a house. I am inclined to believe,
though, for present purposes, it is not
necessary so to decide, that in this
State a peace officer is a creature of
the statute, having no existence and
no powers except by virtue of the
statute.
Numerous illustrations Of the la
mentable state of things that would
occur We're audiences permitted to
gather for the purpose of viewing pro-
hibited performances without being
subjected TO intrusion by the police
have been cited; but such audiences
would be unlawful assemblies, as de-
fined by the Penal Code, and unlawful
assemblies being crimes against the
peace. may be dispersed by the police
without warrants.
2. The gist of the case as thus far
presented, however, is the right of the
plaintiff to an injunction pendente
lite
The plaintiff comes into court of
equity, where may come only those
who are innocent of fraud, of crime,
of yfO1o ton, Nf lou -hn ~ -a
consciences concerning the matter in
dispute, and asks to restrain a depart
ment of the municipal government
from performing certain acts which
the plaintiff alleges Will work ire
parable injury to- it, and which that
department has no right to perform.
The plaintiff asserts it's innocence and
its good intent. The defendants allege
that plaintiff is wrongdoer, violator
of the law. The plaintiff asserts by
reason of the acts of the defendants
it's business has been greatly impaired
and that unless defendants are re-
strained from continuing their acts
the injury to its property will be ire
parable. The defendants allege that
the injury to plaintiffs business has
arisen from the fact that plaintiff can
not continue in its violations of the
law. Plaintiff says the presence of the
police deters its patrons from visiting
the racecourse. The defendants assert
that the absence of poolselling is the
absence of the principal inducement
offered by the plaintiff to its patrons,
and for that reason they remain away.
These are the principal issues present
ed by the complaint and the answer or
affidavit of defendants.
Where greater injury will be inflicted
upon plaintiff than upon the defendant
by the dissolution of an injunction
pendente lite, the injunction should be
maintained until the final hearing.
Where the contrary result will occur
the Injunction should be dissolved. II
the plaintiffs allegations are true 1t
will suffer much loss, unless defend
ants are restrained, and defendants
will suffer none by the injunction: II,
however, the allegation of defendants
is true, that plaintiff is law-breaker,
then the injury to the municipality
from the continuance of the injunction
would be greater than any that can be
compensated by money, and therefore
greater than any the plaintiff can
suffer.
Many of the equities of the bill are
denied by defendants. 1t is denied that
force was used in entering, or that the
entry was without permission, or that
there was any interference, except
with those actually found in the COM
mission of a public offense. Where
such an issue is raised it is TO be pre-
sumed at least for the purposes or a
motion to dissolve that the municipal
officers acted within the scope OF their
authority Under the circumstances,
believe that the injunction should be
dissolved until hearing upon the fact
is had. If upon the hearing 1t appears
that plaintiff is a law respecter, and
that defendants wrongfully trespassed
upon its property to it's irreparable in
Jury, full relief will be accorded.
The motion to strike out portions OF
the answer will be denied. That the
matter may be speedily determined
the cause will be set for April 3, 1899,
for trial, provided such day will suit
the convenience of counsel.
1t is. therefore, ordered:
l. That the injunction pendente lite
be dissolved.
2. That the motion to strike out por-
tions of the answer be denied.
g. That the motion to set cause for
trial be granted for April 8, 1899.
Attorney Garret McEnerney, who, will
Judge Murphy represented the police
said after he had examined the decision
hat he believed the decision of Judg
Murasky ended the controversy. AS TIL
light of the club to seek relief in a cour
If equity rested solely, according to th
opinion of the court, upon a question o
1I, -s1 }oI,l ltrI1 {,