Clark v. Crown Drug Co.

• Decision Date: 12 June 1941
• Docket Number: 37520
• Parties: J. D. Clark v. Crown Drug Company, a Corporation, and Crown Drug Stores, Inc., a Corporation, Appellants
• Court: Missouri Supreme Court

152 S.W.2d 145

348 Mo. 91

J. D. Clark v. Crown Drug Company, a Corporation, and Crown Drug Stores, Inc., a Corporation, Appellants

No. 37520

Supreme Court of Missouri

June 12, 1941

Appeal from Greene Circuit Court; Hon. Guy D. Kirby, Judge.

Reversed.

Schwimmer Keating, Bredehoft & Burris and A. P. Stone Jr., for appellants.

(1) Equity will not enforce a penal statute; and, plaintiff cannot invoke the aid of a court of equity to enforce his interpretation of Section 5 of the Liquor Control Act. Rice v. Jefferson, 50 Mo.App. 464; Warren v Cavanaugh, 33 Mo.App. 102. (a) Ample provisions are made in Liquor Control Act for its enforcement. Secs. 2a, 2a1, Liquor Control Act, Laws 1935, pp. 271, 272; Secs. 13, 26, Liquor Control Act, Laws 1933, Ex. Sess., pp. 81, 88, amended, Laws 1937, pp. 528, 531; Sec. 43, Liquor Control Act, Laws 1933, Ex. Sess., p. 91, amended, Laws 1935, p. 282. (2) Having neither pleaded nor proved any damage, plaintiff is not entitled to maintain this action. Wollitzer v. Natl. Title Guar. Co., 266 N.Y.S. 184; Corchine v. Henderson, 70 S.W.2d 766; State v. Publix Theater Corp. of N. Y., 37 S.W.2d 248; York v. Yzaguairre, 71 S.W. 563; Motor Car Dealers Assn. of Seattle v. Haines Co., 222 P. 611; Long v. So. Express Co., 202 F. 462. (3) The telephone sales in question were made at defendant's store and were proper under defendant's license and the Liquor Control Act. State v. Rosenberger, 212 Mo. 648, 111 S.W. 509; State v. Swift & Co., 273 Mo. 462, 200 S.W. 1066. (a) Intention of parties governs as to place and time of sale. Turner-Looker Liquor Co. v. Hindman, 232 S.W. 1076; Consolidated Flour Mills Co. v. Farmers' Elevator Co., 247 S.W. 480; Keen v. Rush, 19 S.W.2d 25. (b) Upon the record in this case, when order was placed and accepted over telephone, sale was completed and title passed, even though defendant, as vendor, had vendor's lien to secure payment of purchase price so long as defendant retained possession of the property. Southwestern Freight & Cotton Express Co. v. Plant, 45 Mo. 517; Wheless v. Meyer-Schmid Grocer Co., 140 Mo.App. 572, 120 S.W. 708. (4) There was no evidence that defendant had violated liquor control act at any time. However, irrespective of defendant's prior conduct, plaintiff was not entitled to injunction when there was no evidence that defendant was violating act at time of trial. 32 C. J. 76, sec. 63; Davis v. Hartwig, 195 Mo. 380, 94 S.W. 507.

Harold Randall and A. B. Lovan for respondent.

(1) Under the evidence the defendant is making sales of intoxicating liquor at places other than drug store. State v. Crumes, 3 S.W.2d 229; 24 R. C. L. 298; Maxwell v. Dunham, 297 S.W. 94; Calcara v. United States, 53 F.2d 767. (2) Plaintiff's right to bring this suit. (a) Plaintiff's right to do a legal business without interference. Defendant's illegal sales of intoxicating liquor are in competition with plaintiff's legal sales. Therefore, such illegal actions on the part of the defendant interfere with the property rights of the plaintiff. 32 C. J., pp. 55, 155, secs. 32, 209. (b) The illegality of defendant's actions does not bar this injunction. The law is well settled that while the general rule is that an injunction will not be granted in a case where the defendant's actions constitute a violation of the criminal law, yet where such actions interfere with the lawful business of the plaintiff, the court will not be deprived of its jurisdiction because the defendant may be guilty of violating the criminal law. The court will not compel this plaintiff to rely on the prosecuting attorney or other officials to protect him in his rights. 32 C. J. 277, sec. 440; 52 A. L. R. 79; Long v. So. Express Co., 201 F. 441. (3) Although defendant is not now violating the law, that is no reason for denying the injunction. 32 C. J. 77, sec. 63.

OPINION

Douglas, J.

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.

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., 146 S.W.2d 98.] In this situation we rehear and determine the case as if it were here by ordinary appellate process. [Am. 1884, Art. VI, Sec. 6, Mo. Constitution.]

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.

Ordinarily a court of equity has no authority to enjoin the commission of a crime. [State ex rel. Crow v. Canty, 207 Mo. 439, 105 S.W. 1078.] But in cases of injury to property or rights of a pecuniary nature or in cases involving a public nuisance, this rule does not prevent a court of equity from exercising its jurisdiction. We have declared the rule as follows: "The power of equity to enjoin the doing of acts threatening irreparable injury to property rights or which would constitute a public nuisance is inherent and has been exercised, both in England and America, by courts of chancery since their evolution as a distinct tribunal, nor can this power be devested because the performance of such acts may be a violation of the criminal law. On the other hand, a court of equity is powerless to enjoin the commission of any crime not violative of property rights nor involving the creation of a public nuisance, for the reason that it has no jurisdiction to enforce the criminal law nor to prevent the performance of any act of a criminal nature which does not necessarily prejudice private or public rights subject to its jurisdiction and control." [State ex rel. C., B. & Q. Ry. Co. v. Woolfolk, 269 Mo. 389, 190 S.W. 877.]

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 tavern...