Ex parte Gounis

• Decision Date: 03 July 1924
• Docket Number: 25307
• Parties: Ex Parte PETER G. GOUNIS
• Court: Missouri Supreme Court

263 S.W. 988

304 Mo. 428

Ex Parte PETER G. GOUNIS

No. 25307

Supreme Court of Missouri

July 3, 1924

Motion to Modify Decree Overruled July 3, 1924.

Writ denied.

Robert C. Powell for petitioner.

(1) The Legislature, by virtue of Section 2 of the Eighteenth Amendment passed a law identical with Section 22 of Title 2 of the Volstead Act, making only minor changes in the names of the officers authorized, and the forum in which to carry out the act. Laws 1921, p. 413, secs. 6594 a, b and c. By this act proceedings were authorized to be instituted in the name of the State of Missouri. The Legislature having spoken in language practically identical with the national act, the same is and should be taken to be a mandate to state officers as to how and where to proceed and as to the limitations set upon them and their activities. Having thus spoken, tat law becomes supreme and controlling in Missouri for state officers, their limitations and activities, otherwise any prosecuting attorney of Missouri might be authorized under the federal act with a roving commission to go anywhere in any court, of the State, Federal or State, or possibly anywhere in the United States, just so long as he appears in the jurisdiction of the offense and presents his case to any court thereof "having jurisdiction to hear and determine equity cases." (2) If state and national legislation on the subject of the Eighteenth Amendment conflict, the state legislation yields to the action of Congress as controlling for the State shall assist, not thwart, the purpose of the Eighteenth Amendment, but where the State passes legislation in exact accord with the amendment and an exact rescript of national legislation, changing only the method of procedure in the state courts, and directory of the state officers, the state legislation is controlling in view of local self-government retained by the Constitution of Missouri Sec. 3, Art. II. Section 1 of the Eighteenth Amendment is a command to prohibition. Section 2 is only procedural to enforce the command by appropriate means. State v Heilman, 246 S.W. 622; State v. George, 243 S.W. 948. (3) Section 23, Article II, Missouri Constitution provides against double jeopardy. A prosecution or proceeding in a federal court under the federal act and one in the state court under the state law against the same person for the same offense is held to be no double jeopard. United States v. Lanza, 43 S.Ct. 141. But to permit a state officer to proceed in a state court, using state aid for a prosecution or proceeding under the federal act, if not precluding the same officer in the same state court with the same state aid, on the same set of facts, against the same person, would certainly not only give too much power to that state officer, but would be violative of both the letter and spirit of our Constitution in its provision against double jeopardy. (4) The proceedings in the circuit court were had and definitely and explicitly, throughout the whole petition, bottomed upon Section 22, Title 2, of the National Prohibition Act. The whole spirit of the proceedings and the letter of the law was federal in its purpose and purport; otherwise, there was no warrant or authority whatsoever therefor and the whole proceeding must fall of its own weight. To the federal act must be given its individuality, purposes, potentialities and penalties, as likewise the state act in coexistence therewith. Proceedings under both as to double jeopardy have nothing to do with each other and are definitely contradistinguished. If such procedure should govern, then recourse should be had, not to state, but to federal decisions. A proceeding of this kind under the Volstead Act should be upon positive averment, not upon "information and belief" of the informant or complainant. United States v. Butler, 278 F. 677.

Jesse W. Barrett, Attorney-General, and Allen May, Special Assistant Attorney-General, for respondent.

(1) Where a party who is in confinement under judicial process is brought up on habeas corpus, the court or judge before whom he is returned will inquire only whether the court or officer issuing the process under which he is detained had jurisdiction of the case and has acted within that jurisdiction issuing such process. If so, mere irregularities or errors of judgment in the exercise of that jurisdiction must be disregarded, and must be corrected either by the court issuing the process or on regular appellate proceeding. Hartman v. Henry, 280 Mo. 478. (2) The circuit court had jurisdiction of this cause. (a) The Constitution and laws of the United States are the supreme law of the land and the judges in every state are bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding. The judicial power of the United States is vested in one Supreme Court and in such inferior courts as the Congress from time to time ordains and establishes. Article VI, Constitution of the United States; Section 1, Article III, Constitution of the United States. (b) Rights, whether legal or equitable, acquired under the laws of the United States, may be prosecuted in the United States courts or in the state courts competent to decide rights of the like character and class, unless in the case of rights arising under the laws of the United States the Congress shall give exclusive jurisdiction to the federal courts. Claflin v. Houseman, 93 U.S. 130, 23 L.Ed. 833; Second Employers Liability Cases, 223 U.S. 1, 56 L.Ed. 327. (c) Circuit Courts in Missouri have jurisdiction in equity to abate nuisances by injunction. State ex rel. v. Canty, 207 Mo. 439, 456; State ex rel. v. Lamb, 237 Mo. 437, 456; Ex parte Laymaster, 260 Mo. 613. (d) And this included nuisances not such per se or at common law, but made so by competent legislative authority. State v. Tower, 185 Mo. 79, 91; State ex rel. Brncic v. Huck, 246 S.W. 303; State ex rel. Tibbels v. Iden, 221 S.W. 781. The technical objections raised by petitioner, if available for review here, are without merit. (3) The granting of a temporary restraining order without notice upon application of a proper governmental official is valid. State ex rel. Brncic v. Huck, 246 S.W. 303.

Adam Henry Jones and Wilfred Jones also for respondent.

(1) The relief sought being by habeas corpus, the issues are made up by the writ and the return. The return not being denied, is to be taken as true. Ex parte Durbin, 102 Mo. 100; In re Buck, 252 Mo. 303. The National Prohibition Act was passed by Congress under the Eighteenth Amendment and has been held to be within the power of Congress. State of Rhode Island v. Palmer, 253 U.S. 350. Congress having acted by legislation, it is not the duty of the court to substitute its judgment for that of the legislative department of government. Hannah & Hog v. Clyne, 263 F. 599. (2) When the United States exerts any of the powers conferred upon it by the Constitution no valid objection can be based upon the fact that such exercise may be attended by the same incidents which attend the exercise by a state of its police power, or that it may tend to accomplish a similar purpose. Hamilton v. Ky. Dist. & W. H. Co., 251 U.S 146; McCray v. United States, 195 U.S. 27. (3) Under Sec. 22 of Title II of the National Prohibition Act the prosecution of liquor nuisances by injunction proceedings at the instance of the prosecuting attorney in a state court of equity jurisdiction is expressly authorized. This is not in conflict with our state law, but the two acts are in consonance. There is no conflict of law. Ex parte Ramsey, 265 F. 950; Ex parte Crookshank, 269 F. 980. But if the state law is inconsistent the law of Congress takes supersedence. Ex parte Crookshank, 269 F. 980. (4) The prosecuting attorney of any county may sue in either the name of the United States under the National Prohibition Act, in the state court or in the name of the State, where that state has in effect a consistent law on the same subject. Ex parte Brambini, 218 P. 569; Carse v. Marsh, 210 P. 257. (5) Where the proceeding is brought in a state court it should follow the equity rules of that state as to procedure. Under Missouri practice a temporary restraining order in an injunction proceeding to enjoin the continuance of a liquor nuisance may issue upon the filing of the petition and affidavit without notice. State ex rel. Brncic v. Huck, 246 S.W. 303. (6) The petition in the case in which the petitioner's conviction resulted was not solely on information and belief, but was on facts known either to the prosecuting attorney, or to an assistant who supplied the supporting affidavit made a part of the petition. (7) The Eighteenth Amendment was a limitation and not a grant of power to the several states. A prosecution by the State is by a different sovereignty from the Federal Government and, therefore, a conviction under one is no bar to a prosecution under the other. An act denounced as a crime by both national and state governments is an offense against the peace and dignity of both and may be punished by each. The guaranties of the Fifth Amendment apply only to proceedings by the Federal Government. Blakemore on Prohibition, p. 38; Vigliotti v. Penn., 258 U.S. 403; Barron v. City of Baltimore, 7 Pet. 243, 8 L.Ed. 672; Woods v. Seattle, 270 F. 315; State v. Rhodes, 242 S.W. 642, 22 A. L. R. 1544. (8) Where defendant has been served with the restraining order the entering of which was within the jurisdiction of the court and which order the defendant has violated, he cannot in defense of a contempt proceeding be heard to assert that the court improvidently entered the original order. It is his duty to obey the order until such time as it has either been rescinded or modified. Lewisohn v. United States, 278 F. 421; In...