Fugel v. Becker

• Decision Date: 04 February 1928
• Docket Number: 28196
• Citation: 2 S.W.2d 743
• Parties: FUGEL et al. v. BECKER, Secretary of State
• Court: Missouri Supreme Court

2 S.W.2d 743

FUGEL et al. v. BECKER, Secretary of State

No. 28196

Supreme Court of Missouri

February 4, 1928

North T. Gentry, Atty. Gen. (A. L. Shortridge, of Sedalia, and F T. Stockard, of Springfield, of counsel), for appellant.

Irwin & Bushman, of Jefferson City, for respondents.

In Banc.

OPINION

BLAIR J.

This action was instituted in the circuit court of Cole county and reached the Boone county circuit court upon change of venue. The object of the action was to enjoin the secretary of state from contracting for the printing by newspapers of the state of the text of initiative proposals submitted, and legislative acts of the General Assembly of 1925 referred, to the voters at the general election of 1926. A temporary injunction was granted by the circuit court of Cole county. When the case reached the Boone county circuit court, a demurrer to the petition was filed and overruled. Defendant stood upon his demurrer and refused to plead over.

On January 22, 1927, judgment was entered upon the petition making the temporary injunction permanent and enjoining defendant as secretary of state, 'from entering into contracts on behalf of the state of Missouri with newspapers or with persons owning or publishing newspapers in the several counties or cities of the state of Missouri for the publication of initiative and referendum proposals to be submitted to the people of Missouri for their ratification or rejection, and that the said Charles U. Becker, as secretary of state aforesaid, be and he is hereby further enjoined and restrained from auditing or approving for allowance or payment any and all claims or accounts for printing proposals submitted by the initiative or referendum process to the people of the state of Missouri for their ratification or rejection at the general election held throughout the state of Missouri on the first Tuesday after the first Monday in November, 1926, or submitted at any other election thereafter, and that he, the said Charles U. Becker, as secretary of state aforesaid, be and he is hereby permanently enjoined and restrained from approving any and all accounts or claims from any and all newspapers or publishers whatsoever for the printing and publication of any and all initiative and referendum propositions submitted and voted upon at the said general election held in Missouri in November, 1926, and from certifying such accounts and claims or any of them, to the state auditor of the state of Missouri, for payment, and that the said Charles U. Becker, as secretary of state aforesaid, be and he is hereby enjoined and restrained from creating or attempting to create any pecuniary obligation whatsoever, of or against the people of the state of Missouri, for the payment of any such accounts and claims for printing and publishing said initiative and referendum propositions out of any moneys belonging to the state of Missouri.' An appeal was granted to defendant from such judgment.

The main question which the parties to the suit seek to have this court consider and determine is the authority of the secretary of state to contract for the printing of the text of initiative and referendum proposals in a newspaper in each county of the state, and an incidental question is the right of the secretary of state to make the expense of such printing a lawful charge against the state. But, as we look at the record, those questions are not properly before us for consideration, because the trial court was not authorized, under the facts in this record, to grant a permanent injunction against appellant, even if appellant had no authority to make such contracts, and even if the temporary injunction had been properly issued.

The facts in the case are those alleged in the petition. It appears therefrom that respondents are property owners, taxpayers, and residents of the state; that appellant is secretary of state and will be such until on or about the 1st day of January, 1929. We quote from the petition as follows:

'There have been filed in the office of the secretary of state petitions for a referendum to the people of all existing laws passed by the General Assembly of the state of Missouri, relating to workmen's compensation, and relating to the enforcement of certain liquor laws; that there have been filed in the office of the Secretary of State initiative petitions for the enactment of a Workmen's Compensation Law.

'Your petitioners say that Charles U. Becker, secretary of state of the state aforesaid, has threatened and is about to enter into contracts, on behalf of the state of Missouri, with persons owning and operating newspapers in the state of Missouri, for the publication of public notice containing in full the text of the initiative and referendum laws as proposed by the petitions now on file in his office, and unless enjoined and prohibited from so doing he will enter in said contracts, thereby binding the state of Missouri, by contract, to pay to newspapers throughout the state of Missouri. Should said publications of the initiative and referendum propositions be so made, it will cause the state of Missouri to pay to newspapers throughout the state of Missouri, for said publications the sum of about $ 230,000, to be paid by an appropriation made by the General Assembly of the state of Missouri, out of the moneys in the treasury of the state of Missouri.

'Your petitioners say that the secretary of state is unauthorized to enter into contracts with newspapers throughout the state of Missouri to publish the initiative and referendum proposals, and that the said Charles U. Becker is not authorized or empowered by law to make, or cause to be made, publications, and to spend the money belonging to the taxpayers of the state of Missouri, and to audit and approve the charges for such publication and certify the same to the state auditor for payment thereof; therefore, for which these plaintiffs and other taxpayers throughout the state of Missouri will have no adequate remedy by law.'

The petition alleged that appellant was threatening and about to enter into contracts for such printing in respect to proposals to be submitted at the general election in 1926 and thereby was about to let the state in for an unauthorized expenditure of about $ 230,000. No allegation was made that appellant was threatening and about to make such contracts as to proposals to be submitted at any election subsequent to 1926.

In 32 Corpus Juris, 45, the general rule is stated as follows:

'Since the purpose of an injunction is not to afford a remedy for what is past but to prevent future mischief, not being used for the purpose of punishment or to compel persons to do right but merely to prevent them from doing wrong, rights already lost and wrongs already perpetrated cannot be corrected by injunction, and the party aggrieved must seek some other remedy for redress, which is ordinarily an action at law for damages.'

2 Spelling on Extraordinary Remedies (2d Ed.) § 1018, announces the general rule in the following language:

'A hearing on an injunction bill cannot be had after the act has been done which it is the sole purpose of the bill to restrain; the remedy for any consequent injury is to be had, if at all, at law.'

See, also, 1 High on Injunctions (4th Ed.) § 23, where it is said:

'The appropriate function of the writ of injunction is to afford preventive relief only, and not to correct injuries which have already been committed, or to restore parties to rights of which they have already been deprived. It is not, therefore, an appropriate remedy to procure relief for past injuries, and it is only to be used for the prevention of a future injury actually threatened, and to prevent the perpetration of a legal wrong for which no adequate remedy can be had in damages. And if the act sought to be enjoined has already been committed, equity will not interfere, since the granting of an injunction under such circumstances would be a useless act.'

In 14 R. C. L. § 7, p. 309, it is said:

'The function, generally, of the injunctive mandate is to afford preventive relief and not redress for wrongs already committed. Its power is exercised not for the purpose of punishing a person for some wrongful act which he has committed, but rather to prevent the doing of such an act to the injury of another.'

In Owen v. Ford, 49 Mo. loc. cit. 437, Wagner, J., said:

'The petition charged that injury to the property had already been done, but there was no averment that any future injury was anticipated or threatened. For past injuries or trespasses the only remedy is an action at law for compensation in damages. Injunction furnishes no relief. It is resorted to and applied only where an injury to real or personal property is threatened, and to prevent the doing of a legal wrong where an adequate remedy cannot be afforded by an action for damages.'...