Clark v. Crown Drug Co.

• Decision Date: 31 December 1940
• Parties: J. D. CLARK, RESPONDENT, v. CROWN DRUG COMPANY, A CORPORATION, and CROWN DRUG STORES, INC., A CORPORATION, APPELLANTS
• Court: Missouri Court of Appeals

146 S.W.2d 98

236 Mo.App. 206

J. D. CLARK, RESPONDENT, v. CROWN DRUG COMPANY, A CORPORATION, and CROWN DRUG STORES, INC., A CORPORATION, APPELLANTS

Court of Appeals of Missouri, Springfield

December 31, 1940

236 Mo.App. 206 at 217.

Original Opinion of December 14, 1940, Reported at: 236 Mo.App. 206.

SMITH, J., Dissenting.

OPINION

ON MOTION FOR REHEARING.

DISSENT BY: SMITH

SMITH, J. (Dissenting)--

This case was argued and submitted, and an opinion prepared by TATLOW, P. J., in which I concurred.

A motion for rehearing was filed, and on further consideration of the case, I have come to the conclusion that the opinion heretofore handed down in this case, and in which I concurred in the results, is in conflict with the ruling of the Supreme Court dealing with the question involved in the case.

I, therefore, withdraw my concurrence in the majority opinion, and wish to be marked as dissenting in the results therein reached. I also dissent from the order overruling the motion for rehearing. The opinion, in my judgment, and the overruling of the motion for rehearing are in conflict with the case of State ex rel. Crow, Attorney General, Appellant, v. Dennis Canty et al., 207 Mo. 439, 105 S.W. 1078.

It is my judgment that there is nothing in the evidence in this case to show that a public nuisance existed, sufficiently to require the action of a court of equity to act by injunction proceedings. The act of the appellants in delivering and collecting for the delivery of the liquor in this instance was a violation of the criminal laws of this State, and for the enforcement of which laws, we have penal statutes, and enforcement officers. It is my opinion that the enforcement of penal statutes should be pursued by enforcement officers and not by courts of equity.

I therefore respectfully dissent from the majority opinion heretofore rendered in this cause, and dissent from the order overruling the motion for rehearing and ask that the cause be certified to the Supreme Court, because I believe the opinion and the order of court on the motion for rehearing to be in conflict with the case above mentioned.