237 Mo. 437 | Mo. | 1911
Lead Opinion
This is an original proceeding by petition for a writ of prohibition against the respondent, judge of the 12th Judicial Circuit, prohibiting him from proceeding further, in the exercise of jurisdiction in the case of The State at the relation of Roy W. Rucker, prosecuting attorney of Chariton county, against the relators.
It appears from the petition filed by relators that they were for some time prior to July 3, 1911, owning and operating a lunch stand and soft drink establishment in the city of Keytesville, Chariton county, under a license from that city; that on said third day of July, Roy W. Rucker, prosecuting attorney, presented the following petition to the respondent circuit judge:
State of Missouri ex rel. Roy W. Rucker, Prosecuting Attorney of Chariton County, Missouri, Plaintiff, v. W. P. Thrash, Aubrey Thrash and R. P. Carroll, defendants.
Comes now the above named plaintiff, by Roy W. Rucker, prosecuting attorney, in bebalf of tbe State of Missouri, and states:
That on tbe 24tb day of April, 1908, tbe act of tbe Legislature of tbe State of Missouri, approved April 5, 1887, now Article 3 of tbe Revised Statutes, 1909, of said State, commonly known*444 as the Local Option Law, was adopted in said county of Chariton, and that said Local Option Law was in full force and effect in said county at all times and dates hereinafter mentioned.
That the defendants, W. P. Thrash, Aubrey Thrash and R. P. Carroll, on a date to this plaintiff unknown, moved into and occupied the first floor of the premises known as the Hans-man and Schell building, located in lot one, on Bridge street, in the city of Keytesville, Chariton county, Missouri, with the avowed and pretended intention of conducting a restaurant and lunch room therein.
Plaintiff states that defendants opened up said pretended restaurant and lunch room as a mere subterfuge, and that they have, in fact, for themselves and by their officers, agents, servants and employees, openly and in violation of the laws of the State of Missouri, and particularly of what is known as the Local Option Law, engaged in storing for and selling and disposing of to the public intoxicating liquors and intoxicating beverage, containing alcohol, on every day of the week, including Sundays from on or about the 1st day of June, 1910, up to the time of the filing of this petition herein, and have since on or about the 1st day of June, 1910, until the present time, engaged in the business of selling intoxicating liquors, to-wit, beer and whiskey and intoxicating beverages containing alcohol, called grape juice and manitou, in said premises, without any legal authority to sell the same.
And plaintiff further states that said intoxicating liquors and intoxicating beverages, containing alcohol, were so, as aforesaid, disposed of and sold by the said defendants, their officers, agents, servants and employees indiscriminately to all persons offering to purchase the same.
Plaintiff states that the illegal sale of intoxicating liquors and intoxicating beverages, containing alcohol, as aforesaid, causes and has caused a large number of idle, lawless, turbulent, dissolute and immoral and dangerous persons, addicted to the use of ardent spirits, to be attracted to and assembled at the defendants’ said premises, and that by reason thereof much disorderly conduct, tending to destroy the public morals of the community, and to the prejudice of the good name and general welfare of the people, has been indulged in on the said premises.
Plaintiff further states that the acts herein complained of are continuing from day to day and from week to week, and are contrary to the good morals, public peace and general welfare of the people of the State, and constitute a continuing violation of the law, and are a public nuisance; that indictments have been returned against all of the above named defendants, charging them with the violation of the Local Option Law, and that said prosecutions are now pending against those defendants, but that because of the nature of the cases such proceedings cannot be determined for several months, and that in the mean*445 time the defendants will be free'to continue in the unlawful and immoral acts herein complained of.
Wherefore, the premises considered, the plaintiff prays that the defendants, their officers, agents, servants and employees, be perpetually restrained and enjoined from conducting said restaurant and lunch room, and from selling or disposing of intoxicating liquors or intoxicating beverages, containing alcohol, at their premises in the city of Keytesville, Chariton county, Missouri, or at any place in said county.
And plaintiff further prays, in the interest of the public morals and the enforcement of the laws, that the defendants, their officers, agents, servants and employees, immediately be restrained from continuing the acts and things herein com- ■ plained of, and that a temporary injunction be so granted pending the final hearing of the cause, and for such other relief as to the court may seem proper.
Rot W. Rucker,
Prosecuting Attorney
of Chariton County, Missouri.
State of Missouri, County of Chariton, ss.
Roy W. Rucker, prosecuting attorney of Chariton county, Missouri, makes oath and says that the facts and statements contained in the foregoing petition are true to the best of his knowledge and belief.
Rot. W. Rucker.
Subscribed and sworn to before me, this ________ day of May, 1911. W. L. Wright,
[seal] - Circuit Clerk.
That thereafter the respondent, without notice to relators, and without knowledge of the facts alleged in the petition, granted a restraining order which, after reciting the allegations of the petition, runs thus:
And it appearing that the said petition was on the 19th day of May, 1911, filed with the circuit clerk of Chariton county, Missouri, and the undersigned judge, having seen and heard said petition, and it' appearing that plaintiff, upon the facts stated in the petition, is entitled to the relief prayed for, it is ordered that a temporary injunction be granted enjoining defendants, • their agents, servants and employees from conducting their said restaurant and lunch room, located in lot one and block one, on Bridge street, in the city of Keytesville, Chariton county, Missouri, and from selling and disposing of intoxicating liquors and intoxicating beverages containing alcohol, at their premises in the city of Keytesville, Chariton county, Missouri,*446 or at any place in said county, until the further orders of the circuit court of Chariton county, Missouri.
It is 'further ordered that a copy of this order, certified to by the clerk of the circuit court of Chariton county, Missouri, be served upon the defendants.
Given under my hand this 3rd day of July, 1911.
Fred Lamb,
Judge of the Circuit Court of Chariton County, Missouri.
That on July 6th relators moved the court to so modify the order as to allow them to conduct their restaurant and lunch counter business, which motion was denied; that by reason of the fact that no hearing can be had before the next September term, and “because of the nature of their stock of goods, the same will be spoiled and totally ruined in that time”; that by reason of the fact that the petition was filed by the prosecuting attorney in the name of the State, no bond was required, and that they have no remedy for the loss that they may suffer by reason of this confiscation of their property; that same is without due process of law, and violative of section 30 of article 2, and section 4 of article 2, of the State Constitution; that under the Constitution and laws of the State ample and adequate means are offered for the prevention of the matters charged as aforesaid by means of criminal prosecutions; that this injunction violates sections 12 and 28 of article 2 of the State Constitution. Here follow several allegations of legal conclusions, charging violation of the rights of relators, not material, and which it is unnecessary to set forth.
On July 17, 1911, our prehminary rule in prohibition issued. On October 10, 1911, respondent for return filed the following demurrer:
“Respondent herein demurs to relators’ petition filed herein for the following reasons:
“Because the.petition does not state facts sufficient to constitute a cause of action.
“Because1 the facts stated in the petition do not entitle relators to the relief prayed for, or to any relief.
*447 “Because the facts stated in the petition show that respondent was proceeding in a matter of which he had jurisdiction, and that he was acting within the scope of his power and authority.”
• Whereupon relators pray judgment, notwithstanding the return.
Upon this record relators contend, first, that the circuit court was without jurisdiction to issue the preliminary injunction, because no bond was given, and, second, that the order made was in excess of jurisdiction.
As the pleadings stand, all the facts well pleaded both in the bill filed by the prosecuting attorney and in the petition by the relators here must be taken as true.
I. The prosecuting attorney, proceeding ex officio, in the name of the State, filed a bill against relators to enjoin a public nuisance, and, without giving bond, secured a temporary injunction.
Section 2522, Revised Statutes 1909, provides that “no injunction, unless on final hearing or judgment, shall issue in any case, except in suits instituted by the State in its own behalf, until the plaintiff, or some responsible person for him, shall have executed a bond,” etc.
We have heretofore decided that a court acts in excess of its jurisdiction when it issues a preliminary injunction, without bond, in a case where such bond is required by statute. [State ex rel. v. Williams, 221 Mo. 227; City of St. Louis v. St. Louis Gaslight Co., 82 Mo. l. c. 353.]
The question here is whether the suit was “instituted by the State in its own behalf.” If the State in its own behalf may institute a suit to enjoin a public nuisance, and if the prosecuting attorney had authority
Section 1007, Revised Statutes 1909, provides that prosecuting attorneys “shall commence and prosecute all civil and criminal actions in their respective counties in which the county or State may be concerned.”
In determining the powers of the prosecuting attorney in this regard, under the present state of the statute law, it will be instructive to review the history of our legislation concerning the duties of attorneys authorized to institute proceedings in behalf of the State.
In 1806, the law provided for an Attorney-General for the territory which subsequently became the State of Missouri, whose duty it was to prosecute in said Territory “all pleas, civil and criminal, in behalf of the United States or of said Territory,” with authority to appoint deputies in the several districts in the Territory. [Territorial Laws, p. 67.] In 1815, the Governor was authorized to appoint a circuit attorney in each of the circuits in the Territory. [Territorial Laws, p. 358.] In Geyer’s Digest of 1818, the foregoing Act of 1806 is appended to the Act of 1815, as section 2 of the article “Circuit Attorneys,” as follows: “It shall be the duty of the said Attorney-General (circuit attorneys) ■ to prosecute in said Territory all pleas, civil and criminal, in behalf of the United States or of said Territory.” By bracketing the
In 1868 (Laws 1868, p. 11), the following act was passed, and appears in 1 Wagner’s Statutes of 1872, p. 202: “The Attorney-General shall be, and he is hereby authorized and empowered, in the name and in behalf of the State of Missouri, to institute and prosecute all suits and other proceedings at law and in equity requisite or necessary to protect the rights and interests of the State and to enforce any and all rights, interests or claims of the State against any and all persons, bodies politic or corporate.”
In 1872 (Laws 1872, p. 13), the Legislature abolished the office of circuit attorney, and provided for the election in each county of a prosecuting attorney, “who shall perform the duties now devolving by law on the circuit attorneys and county attorneys.” Since the passage of this law the duties of prosecuting attorneys relating to proceedings in which the State is concerned have been in substance similar to those imposed on circuit attorneys by the former laws.
The history of this legislation shows that, since-1825, it has been the policy of this State, as indicated by the various acts passed by the Legislature, to impose upon the local State’s attorney, whether known as the circuit or prosecuting attorney, the duty of instituting-proceedings in behalf of the State in matters arising within his local jurisdiction. From 1824 to 1855 the Attorney-General acted as circuit attorney in the-circuit within which the seat of government was located. From 1855 to 1868 the Attorney-General had no such power. During that period the right to institute proceedings in behalf of the State was in the
Whatever may be the' proper construction of section 970 as to the duties of the Attorney-General, it is clear that during all the time since the early territorial days the local State’s attorney has been the proper legal representative of the State to institute proceedings in behalf of the State, and in no respect has that power been curtailed by legislation.
In a strict historical sense, the prosecuting attorney represents the State and exercises powers analogous to those exercised by the Attorney-General in England. As was said by the Supreme Court of Michigan: “The prosecuting attorney is a very responsible officer, selected by the people and vested with personal discretion intrusted to him as a minister of justice, and not as a mere local attorney.” [Engle v. Chipman, 51 Mich. 524.]
The sovereign power of government can only be exercised through its officers. Consequently, to each officer is delegated some' of the powers and functions of government. Usually a discretion that is within the power granted to an officer cannot be controlled by other officers. It has been held, for instance, that mandamus will not issue to control the discretion of the Attorney-General as to whether or not he should institute quo warranto proceedings. [People v. Attorney-General, 41 Mich. 728.] A prosecuting attorney has discretionary power to institute or discontinue prosecutions. [1 Bish. New Crim. Proc., sec. 287.] He may file informations without leave of court (State v. Kyle, 166 Mo. l. c. 306), wherein we
. It is clear that if the prosecuting attorney acts at all ex officio, he must act for and in behalf of the State. If he has power to act for the State, and institute proceedings at his discretion, as we think he has, then it follows that proceedings instituted by bim of the character in question are in behalf of the State, and that no bond is required. It will not do to say that the prosecuting attorney may ex officio properly institute injunction proceedings in behalf of the -State, and still be required to give bond. He has no right to institute the proceeding at all as prosecuting attorney unless he does so in behalf of the State. “Acts of public officers acting on behalf of the State, within the limits of the authority conferred on them, and in the performance of their duties, are the acts of the State.” [Throop on Public Officers, sec. 21.]
Whether the State is the proper party to institute this injunction proceeding is not in itself a jurisdictional question. This we decided in State ex rel. v. Zachritz, 166 Mo. l. c. 314, where we said: “Moreover, whether the State can maintain the action is a question to be raised and determined in the court where the case is pending; it does not go to the power or jurisdiction of the court, and its decision here could not furnish a basis for prohibition.” Again, in the case of State ex rel. v. Williams, 221 Mo. l. c. 263, we held to the same effect, namely, that whether the use of the name of the State by the prosecuting attorney was authorized was a question for the circuit court, and could not “avail here to show want of jurisdiction.”
Our conclusion is that the prosecuting attorney was authorized by law to institute a suit in the circuit court of Chariton county to enjoin, in behalf of the State, a public nuisance, and that he could proceed without giving bond. Considering, however, that the absence of a bond might work great hardship on the defendants in an injunction, in case the bill ultimately is dismissed, we should, if in such case parties apply here for prohibition, closely scrutinize the proceedings complained of and prohibit, should it clearly appear that á legal wrong is about to be committed for which there is no other adequate remedy. An observation by Valliant, J., in State ex rel. v. Aloe, 152 Mo. l. c. 483, is apt on this point. He says: “Prohibition is an extraordinary remedy and will not lie where the party claiming it has adequate remedy by ordinary means. But the ordinary means that will defeat the application for this extraordinary writ must be sufficient to afford the relief the case demands.” On the other hand, inasmuch as the State may lawfully proceed without bond, a situation may arise where loss without remedy will result from the failure of the State to sus
II. There is no question as to the jurisdiction of the- circuit court to enjoin a public nuisance. We are to consider only whether the facts pleaded justified action by the State, and, further, whether the action of the court was an abuse of or in excess of jurisdiction.
Relators concede, on this record, for the purposes of this case, that they were conducting a sham restaurant, where, under the guise of a legitimate, licensed, business, they were openly selling liquor in violation of law, and they point' triumphantly, in oral argument, to the fact that so far they have escaped conviction for such offense in the various criminal prosecutions heretofore instituted by the State. They concede, further, that their place of business, by reason of the illegal practices therein permitted, has become the resort of idlers and dissolute, immoral and dangerous persons, whose continuous disorderly conduct tends to the injury of the 'public morals, peace and welfare. Such conduct, as the court found, constituted a contim uing public nuisance. The relators, without denying the facts alleged in the bill, or disputing seriously the conclusion that they constitute such nuisance, seek to separate the elements which, together, constitute this nuisance, and insist that the court had no jurisdiction to enjoin either element so segregated. Relators* propositions are that the court cannot lawfully enjoin (a) the commission of a crime, i. e., the illegal sale of liquor, or '(b) the business of conducting a restaurant. The State is seeking by means of injunction to close this place, not primarily because of the illegal sale of liquor, nor because of the operation of a sham restaurant. These things are pleaded as the facts which underlie-
There can be no serious contention that this injunction forbids a legitimate lunch business, in face of the record admission that the restaurant is a mere sham and subterfuge for the sale of liquor, but we apprehend that a lunch business, whether genuine or not, operated in connection with a public nuisance, and as one of its elements, would not so leaven the whole as to save it from abatement. If this petition states a case at all it states a public nuisance, and we think the facts therein alleged justify the discretion exercised by the State’s attorney in bringing the suit. Whether the pleadings measure up to full legal sufficiency, and whether the order made is too broad, are questions
Counsel for relators frankly stated in argument that if that modification had been allowed, this proceeding for prohibition would not have been necessary. It may have appeared at the hearing on that motion, in fact, as it appears here by the admissions on the record, that there was no intention to conduct a bonafide lunch business, independent of the illegal sale of liquor and the maintaining of a public nuisance.
It is further urged by relators that because they were obliged to close their house on July 3rd, with no opportunity for a speedy hearing, their stock of goods would be ruined. Nothing is alleged as to nature or quantity of this stock. So far as the restaurant is concerned, there was a speedy hearing, to-wit, on July 6th, three days later. If the complaint in this regard
Eelators further claim that it was an abuse of jurisdiction to grant the restraining order without notice and prehminary hearing. In view of the fact that upon the record here there is no denial of the facts set up in the bill for injunction, we do not see how relators were injured by reason of the failure to give notice. The conclusion reached by the chancellor, after the hearing three days later, when an opportunity was given to present all matters competent on a preliminary hearing, indicates clearly that notice and hearing would have availed nothing to relators.
We think the demurrer should be sustained. ■ The facts alleged in the bill for injunction are not controverted, and no other facts are pleaded sufficient to show that the circuit court has exceeded or abused its jurisdiction.
The writ will be denied, the rule .herein discharged, and judgment entered in favor of respondent for costs.
SEPAEATE OPINION BY WOODSON, J.
Concurrence Opinion
I concur in all that is said by my learned associate, Judge Ferriss, in paragraph one of his opinion filed herein.
I dissent as to that part of the paragraph two, which holds that, the business of the relators constituted a public nuisance.
Viewing the pleading in the most unfavorable light for the relators, it is simply shown that they were selling intoxicating liquors without a license in a private room.
However, I confess, that the majority opinion of the court in the case of State ex rel. v. Canty, 207 Mo. 439, holds that such conduct constitutes a public nuisance, to which I then dissented, and still dissent.
But independent of that question, the .circuit court of Chariton county had jurisdiction to hear and determine the case, and for that reason, I think the writ should be denied.