152 S.W.2d 145 | Mo. | 1941
Plaintiff, a tavern keeper, acting for himself and others brings this suit for an injunction to restrain the defendant drug store from taking orders over the telephone for intoxicating liquor and then delivering the liquor so ordered by messenger and collecting the purchase price on delivery. Plaintiff claims that such sales are prohibited by our liquor control act and therefore constitute illegal competition with his lawful business to his damage.
The act includes this provision: "No person, agent or employee of any person in any capacity shall sell intoxicating liquor in any other place than that designated in the license, or at any other time or otherwise than is authorized by this act and the regulations herein provided for." [Sec. 4881, R.S. 1939; Mo. Stat. Ann., sec. 4525 g____ 5, p. 4689.]
The plaintiff is licensed to sell liquor by the drink and by the package at his tavern at 437 South Campbell Street in Springfield. Defendant who operates a drug store at the corner of St. Louis and Jefferson Streets in Springfield is licensed to sell liquor in the original package. *94
[1] After a hearing in the Circuit Court at Greene County a decree was granted enjoining defendant from making such sales. This decree was affirmed by the Springfield Court of Appeals by a divided court but upon the motion of the dissident judge the case was certified to this court on the ground the principal opinion was in conflict with the rulings of this court. [See Clark v. Crown Drug Co.,
The basis of plaintiff's complaint is the illegal competition by defendant arising from its failure to obey the law. He asks the court to enjoin defendant from acts which he claims are crimes. We must first determine whether a court of equity has jurisdiction to grant such relief under the facts of this case. No question of public nuisance is raised or involved.
[2] Ordinarily a court of equity has no authority to enjoin the commission of a crime. [State ex rel. Crow v. Canty,
[3] We will assume, only for the sake of argument but not decide, that the telephone sales violated the law and hence were criminal. Such being the case the jurisdiction of the trial court as a court of equity must arise from the fact that plaintiff's property rights have been damaged. But the evidence fails to show any damage whatsoever has been in fact suffered by plaintiff because of defendant's telephone sales. The record is devoid of proof as to any loss of patronage or profit by plaintiff as a result of such sales. It must be borne in mind that the parties are continuingly engaged in lawful competition as to over-the-counter package sales. Should defendant, without any license, make sales by the drink as plaintiff and other tavern proprietors only are permitted to do, then perhaps we might find that the *95 tavern proprietors suffered damage from the proof alone of the unlawful sales although the decisions on this point are divided. [See Annotations 92 A.L.R. 173 and 81 A.L.R. 292.] But in the situation as we find it we cannot presume that plaintiff was damaged on the mere showing that defendant made some of its sales by telephone. Since plaintiff has failed to show that his rights have been damaged in any way he has no standing in a court of equity merely to enjoin the commission of a crime. A court of equity has no such authority where no civil or property rights are concerned. To proceed under such circumstances would be to usurp the functions of a criminal court without following the appropriate rules incidental to criminal procedure.
[4] There is no similarity between this action and one brought by a taxpayer on account of himself and other taxpayers to restrain illegal acts such as the improper payment of public funds. In such cases it is not the damage suffered by each taxpayer or by all taxpayers as a class that opens the door to equity for relief, but it is the public interests which are involved in preventing the unlawful expenditure of money raised or to be raised by taxation. A single taxpayer alone may bring such a suit in order to determine the public interest. [Civic League of St. Louis v. City of St. Louis (Mo.), 223 S.W. 891. And see Hawkins v. City of St. Joseph (Mo.), 281 S.W. 420.]
[5] There is another class of cases where the invasion or threatened invasion of a franchise without legal sanction is a sufficient ground for injunctive relief. And this is so although the owner of the franchise may not be entitled to any protection as against the granting of a similar franchise to another. [Pomeroy Equity (1919), sec. 2016.] In Frost v. Corporation Comm.,
Under the facts of this case plaintiff has proved no right to equitable relief and no injunction should have been granted. The decree is reversed. All concur.