269 Mo. 389 | Mo. | 1916
I. Upon the presentation of its petition for a writ of prohibition a provisional writ was awarded to relator by this court, whereupon the respondents, the judge and prosecuting attorney of Pike County, Missouri, filed a demurrer, on the ground, first, that the petition for prohibition included an allegation that other prosecuting attorneys had instituted like suits to the one sought to be prohibited in this case; second, that the petition itself stated no facts to warrant the issuance of the writ. Thereupon the parties entered into a stipulation that this proceeding should be considered at issue upon the demurrer to the petition and that if the demurrer should be sustained, then the provisional writ should be quashed, and if the demurrer should be overruled, that final judgment should go against respondents without further leave.
The object of this proceeding is to prevent the circuit court of Pike County from considering, on its own chancery side, the causes of action alleged in a petition, filed therein by the respondent prosecuting attorney, stating in substance, his official position, and that the defendant ' corporation is a railroad carrier in that county maintaining offices where it has heretofore delivered commodities, including intoxicating liquors, to persons to whom they were consigned; that on the 23rd of November, 1911, Pike County, outside the corporate limits of the city of Louisiana therein, adopted a Local Option Law of this State; that for many years divers persons in said county had been and are engaged in the illegal selling, storing and delivering of intoxicating liquors, including beer and whisky, in violation of said Local Option Law and without any authority so to do; that some of said persons maintain places of business nominally as drug stores and other places of business, when in truth they are not engaged in any legitimate business whatever; that other persons are engaged in the illegal sale and delivery of such intoxicating liquors without having or maintaining any nlaces of business and are commonly designated as “boot-leggers;” that by reason of such illegal sales
“Plaintiff further states that it has no adequate remedy at law in the premises.
“Wherefore plaintiff prays that the defendant be perpetually enjoined from receiving and transporting and delivering intoxicating liquors, including beer and whisky, to persons at such places aforesaid, to-wit, Ash-burn, Clarksville and Annada, in said Pike County, Missouri, and that in the meantime, until a hearing of this cause can be had, the defendant be temporarily restrained from so doing and for other and proper relief.”
It is clear, at a glance, that the petition on behalf of the State was framed, not to prevent any irreparable injury to property rights, but to prevent the doing of certain acts relating to the storing, delivery and transportation of intoxicating liquors (referred to in the statutes above cited), upon the theory that the se
Obviously the use of the terms “public nuisance” is not sufficient for that purpose, for these are only expressive of a legal conclusion, and unless the allegations of the petition make a case to which these terms are legally applicable, the pleading is not helped by their insertion in it. "We have set out that portion of the petition filed in the lower court which refers to and describes the acts and doings of the defendant there (relator here). It will be seen from this language of the petition that the petitioner wholly fails to set forth any facts showing that the things done by relator were the proximate and efficient cause of the creation of a public nuisance. No court of equity can enjoin any transaction however violative of the criminal law on the part of the defendant, which does not bear such a causal relation to the public nuisance averred in the petition. None of the acts alleged to have been done by relator — i. e., the transportation of intoxicating liquors to certain stations in a specified portion of Pike County and the delivery thereof to the consignees — in and of themselves necessarily produced such a degree of popular intoxication as to create the public nuisance alleged in the petition to have followed the deliveries by relator of “intoxicating liquors, including beer and whisky,” in Pike County. As far as the allegations of the petition are concerned they amount to nothing more than an allegation of the sequence of such a -condition, not its necessary result. In this respect the petition is a type of the fallacious reasoning expressed by post hoc, ergo propter hoc. In order to connect the relator with the public nuisance, alleged in the petition to have resulted from the drunkenness and disorder referred to, it was indispensable that the plaintiff should show that these were caused directly by the mere act of the defendant in transporting and
It necessarily results from a consideration of the allegations in the injunction suit 'filed in the court below that their sum and substance was an averment of the violation of the three sections of the criminal law supra, which forbade under penalties, the receiving, storing, keeping or delivering, as the agent or otherwise, of intoxicating liquors, without a license as a dramshop-keeper or wholesaler, or in any county that hqd. adopted the Local Option Law. It follows, under the principles above stated and in view of the restricted allegations contained in the petition for injunction, that a court of equity is possessed of no power to enjoin the mere violation of the provisions of these criminal statutes (R. S. 1909, secs. 7227, 7229). Neither does it appear from its tenor that the defective petition could be so amended as to state a case within the jurisdiction of a court of equity, nor has the respondent favored us with any suggestions as to its amendment.
It results, from what has been said that our writ of prohibition against further action in the injunction suit filed in the trial court against relator shall be and is made permanent.