Ihe State ex rel. Weatherby v. Dick & Bros. Quincy Brewing Co.

• Decision Date: 20 February 1917
• Citation: 192 S.W. 1022,270 Mo. 100
• Parties: THE STATE ex rel. GLEN G. WEATHERBY, Prosecuting Attorney, v. DICK & BROS. QUINCY BREWING COMPANY, Appellant
• Court: Missouri Supreme Court

192 S.W. 1022

270 Mo. 100

THE STATE ex rel. GLEN G. WEATHERBY, Prosecuting Attorney, v. DICK & BROS. QUINCY BREWING COMPANY, Appellant

Supreme Court of Missouri, First Division

February 20, 1917

Appeal from Adair Circuit Court. -- Hon. Charles D. Stewart, Judge.

Reversed and remanded (with directions).

Chas E. Murrell for appellant.

(1) The State could not have resorted to a court of equity to restrain consignees from selling intoxicating liquors including beer, and conducting their places and carrying on their business as stipulation states they did. They were violating the criminal laws of the State and should have been prosecuted under such laws. State ex rel. v. Urig, 14 Mo.App. 413. (2) Even though consignees could have been restrained from selling intoxicating liquors and maintaining nuisances, it does not follow that appellant could be restrained from filling orders for beer and consigning the same to them. State ex rel. v. Moffett, 188 S.W 930; 29 Cyc. 1202; State v. Rankin, 3 S.C. 438. (3) Appellant was engaged in interstate commerce and neither the county nor the circuit court could regulate or restrain that commerce. U. S. Constitution, art 1, sec. 8. (4) Respondent's bill shows on its face that the State has an adequate remedy at law by resorting to criminal prosecution against consignees. (5) The court had no jurisdiction of the subject-matter of the suit, and is without authority to regulate appellant's acts and conduct in a foreign State.

Glen C. Weatherby pro se.

(1) If the evidence in the case shows that the defendant is selling and causing to be delivered intoxicating liquor to a person or persons, in a local-option county, knowing that the person or persons to whom such liquor is sold and delivered, are selling said liquor in contravention of law, and that the sale thereof by such person or persons, is habitual, and results in drawing together at the place where said liquor is sold, numbers of idle, dissolute and vicious people, addicted to the use of intoxicants, then and in that event, plaintiff contends, that the defendant is aiding and abetting the maintenance of a public nuisance and is subject to the police regulation of the State to be administered through and by a court of equity and subject to be enjoined on a proper procedure therefor. State ex rel. Thrash v. Lamb, 237 Mo. 437; State v. Intoxicating Liquors, 106 Me. 138; 29 Cyc. 1201. (2) It is argued by the defendant, that the shipments of liquor, involved in this case, were interstate, and hence, protected by the Interstate Commerce Act, and that a State cannot by injunctive process, restrain interstate shipments of liquor. Against this contention plaintiff presents the Webb-Kenyon Law, which has been held constitutional in the following cases: United States v. Oregon Nav. Co., 210 F. 378; State v. Grier, 88 A. 579; State v. Van Winkle, 88 A. 807; State v. Express Co., 145 N.W. 451.

RAILEY, C. Brown, C., concurs.

OPINION

RAILEY, C.

Respondent, as prosecuting attorney of Adair County, Missouri, filed in the circuit clerk's office a petition to restrain defendant from shipping beer into said county, in violation of the Local Option Law, in force in said county. The petition alleges, that the Local Option Law of this State is and has been in force in said county; that defendant daily sells and ships into Adair County aforesaid, to divers persons, large quantities of intoxicating liquors, to-wit, beer; that defendant has been so selling and shipping for a long time, and will continue so to do, unless restrained therefrom. The petition alleges:

"That by reason of the defendant selling and shipping beer, as hereinbefore alleged, into said Adair County, Missouri, divers persons are enabled to sell, barter and give away said intoxicating liquors, to-wit, beer, in said county, contrary to the Local Option Law, and by reason thereof said defendant is assisting and enabling such persons to sell by retail in said Adair County, Missouri, such intoxicating liquors, and thereby maintaining public nuisances throughout said county.

"That by reason of the sale of such intoxicating liquors in said county large crowds of idle and turbulent people addicted to the use of intoxicating liquors assemble at the places where such intoxicating liquors are kept and sold, to the great injury to society and the general welfare of the people of said county; that unless said defendant is restrained from selling and shipping said liquors into said Adair County, Missouri, such nuisances will continue to be maintained in said county, and the interest of the people and the general welfare of the public thereby and by reason thereof, jeopardized."

The petition states that there is no adequate remedy at law.

The prayer covers the allegations of petition, and the latter is duly verified, etc.

The answer of defendant admits that it is a corporation, organized under the laws of Illinois, with its place of business at Quincy, in said State; that it is now, and has been for many months prior hereto, engaged in the manufacture and sale of intoxicating liquors, to-wit, beer; that it has been engaged in the business of manufacturing and selling beer at said city of Quincy in the State of Illinois. The answer denies each and every other allegation contained in plaintiff's petition.

The answer further charges that the acts and matters complained of in petition, are matters of interstate commerce; that if a restraining order is issued herein it will be in violation of section 8, article 1, of the Constitution of the United States, in that it attempts to restrain and regulate commerce between the citizens of the State of Illinois, and citizens of the State of Missouri; that such restraining orders are and would be in violation of the Fourteenth Amendment of the Constitution of the United States of America, in this, that it abridges the privileges and immunities of citizens of the United States and deprives the defendant of its property and rights without due process of law, and denies to the defendant the equal protection of law; that said restraining orders prevent defendant from exercising its rights and privileges granted it by virtue of section 7228, Revised Statutes 1909 of Missouri, in this, that it prohibits and prevents the defendant from selling and delivering to any person or persons in Adair County, Missouri, intoxicating liquors for their own, or family use, where such liquors are sent direct to the person using same; that said restraining orders deprive defendant of its property without due process of law in violation of section 30, article 2, of the Constitution of Missouri, and section 4, article 2, of the Constitution of Missouri; that the plaintiff has an adequate remedy at law.

The case was submitted to the trial court upon the following stipulation:

"(1) That the defendant is a corporation organized under the laws of the State of Illinois, with its place of business at Quincy, in the State of Illinois, and that said defendant has been, at all times mentioned in the plaintiff's petition engaged in the manufacture and sale of what is known as 'Dick Brothers' Beer,' an intoxicating liquor, at Quincy, Illinois.

"(2) That at the times mentioned in the petition the Local Option Law was in full force and effect within the corporate limits of the city of Kirksville, and within the limits of Adair County outside of the city of Kirksville.

"(3) That at all the times mentioned in the petition in this cause, the persons specifically named in said petition, as well as divers other persons in said Adair County, and in said city of Kirksville, were, and had been for several months prior to the filing of said petition, engaged in the habitual sale of intoxicating liquors, including beer, both within the corporate limits of said city of Kirksville, Missouri, and in Adair County, Missouri, outside of the corporate limits of said city of Kirksville; and that said parties sold said intoxicating liquors, including beer, to any and all persons who might apply therefor, indiscriminately, and on every day of the week, including Sunday; and that by reason of such sales of intoxicating liquors, large crowds of idle and turbulent people addicted to the use of intoxicants assembled at said places of business for the purpose of buying and drinking intoxicating liquors.

"(4) That the defendant did frequently, at short intervals, up to the time of filing the petition in this cause, sell and cause to be delivered as herein below stated to the parties engaged in the habitual sale of intoxicating liquors, as aforedescribed, quantities of beer ranging from one case upwards; that these shipments of beer were on the written order of the party buying the same taken by one Jess Jamison on a form as hereto attached and marked 'Exhibit A;' that sometimes the money was sent in with the order with which to pay for said beer, and sometimes collection was made therefor after delivery, either by remittance by mail from the purchaser direct to defendant or by payment to the said Jamison in Adair County.

"(5) That the said Jess Jamison was at all times mentioned in the petition the agent of the defendant for the purpose of receiving and sending to defendant written orders of the purchasers for such beer as shown by said Exhibit A; said orders being accepted or rejected by defendant at its option, at Quincy, Illinois.

"(6) That the orders for beer shipment, herein referred to, were ordered in writing in the name of the party buying the same, and delivered to railroad or express company at Quincy, Illinois, consigned to the party named in the written order.

"(7) That the said Jess Jamison is a resident of the city of Kirksville, Missouri, and has been for many years last past,...