Russo v. Miller
| Decision Date | 06 March 1928 |
| Citation | 3 S.W.2d 266,221 Mo.App. 292 |
| Parties | WILLIAM RUSSO, RESPONDENT, v. VICTOR J. MILLER, MAYOR OF THE CITY OF ST. LOUIS, MISSOURI, ALLEN C. ORRICK, HENRY KORTJOHN, ARTHUR J. FREUND, FRANK MAGOON, POLICE COMMISSIONERS OF THE CITY OF ST. LOUIS, STATE OF MISSOURI, JOSEPH GERK, CHIEF OF POLICE, ROBERT KAISER, CHIEF OF DETECTIVES, AND FRANK NALLY, CAPTAIN, COMMANDING 4TH DISTRICT POLICE DISTRICT, APPELLANTS. [*] |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. John W. Calhoun, Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and remanded.
Julius T. Muench, Oliver Senti and Arthur H. Bader for appellants.
(1) A court of equity will not interfere to restrain or control the exercise of discretion vested in the police authorities in the prevention of crime and in the maintenance of peace. Gaines v. Thompson, 74 U.S. 347; High on Injunction (4 Ed.), sec. 1326; 1 Spelling on Injunction (2 Ed.), sec 628; 2 Bouvier's Law Dictionary, pages 428 and 691; Freund on Police Powers, sec. 86; 32 Corpus Juris, 261; Kearney v. Laird, 164 Mo.App. 406; Modern Horse Shoe Club v. Stewart, 242 Mo. 421. (2) Where a right and duty is cast upon the board of police commissioners of the city of St. Louis by law, involving the exercise of discretion in order to prevent crime and maintain peace equity will not interfere to control or restrain such discretion. Kearney v. Laird, 164 Mo.App. 406; Revised Statutes of Missouri, 1919, sec. 8953; Modern Horse Shoe Club v. Stewart, 242 Mo. 421; State v Garland, 263 S.W. 165; 32 Corpus Juris, 261; Oliver v. Orrick, 288 S.W. 969. (3) Respondent does not come into equity with clean hands and should therefore be denied relief. Modern Horse Shoe Club v. Stewart, 242 Mo. 421; Kearney v. Laird, 164 Mo.App. 406.
Carl M. Dubinsky for respondent.
This is a suit for an injunction, instituted on September 27, 1926, by plaintiff, the proprietor of a gasoline filling station, located at the southeast corner of Seventh and O'Fallon streets, in the city of St. Louis, whereby he seeks to enjoin defendants, as officials of the police department of said city, from molesting or interfering with plaintiff, or his employees or patrons, while on or about plaintiff's said premises. From a decree in favor of plaintiff on one of the several issues in the case (to be noted more specifically hereafter), defendants, after an unavailing motion for a new trial, have duly perfected their appeal.
In his petition, plaintiff alleged, in substance, that he catered to the general public in the sale of gasoline and auto accessories, and that, in order to preserve the reputation of his place of business, to continue to serve the wants of the general public, and not to lose his investment, it was necessary that he be enabled, without interruption, to furnish his patrons the same conveniences and facilities that they had theretofore enjoyed. He further alleged that, on several specific instances, the police had entered upon his premises, and had arrested plaintiff and other persons found thereupon; and that, commencing on or about September 21, 1926, a detail of police officers had been stationed on his premises, and had caused every person patronizing plaintiff's place of business to be searched, without warrant of law.
It was further pleaded that defendant Nally, captain in command of the fourth police district, acting for himself and the other defendants, had informed plaintiff that he would not be permitted to continue the operation of his business, and that every person coming upon the premises would be arrested. There was a further allegation that plaintiff's business had been conducted in a lawful and proper manner, and that the actions and conduct of the members of the police department complained of had intimidated the public, and had prevented the public from continuing their patronage of plaintiff, resulting in great and irreparable loss and damage to him.
Wherefore, plaintiff prayed that defendants and their subordinates be permanently restrained and enjoined from raiding and arresting, and from keeping officers on plaintiff's premises, and from in any way molesting, questioning, searching, or interfering with plaintiff, his employees, or patrons, while on or about plaintiff's premises.
Upon the filing of the petition, a restraining order was issued by the court (upon the giving by plaintiff of a bond in the sum of $ 1,000), ordering defendants to show cause why an injunction should not be granted. In due course, defendants filed their return to the order to show cause, admitting, among other things, that, prior to the filing of the suit, plaintiff and certain other persons had been arrested upon the premises, and charged with the commission of crimes; but averring that said arrests had been made because the police officers had had reasonable grounds and probable cause to believe that the persons so arrested had committed the crimes and offenses with which they were charged.
Defendants denied that police officers continually entered plaintiff's place of business whenever customers were there, and intimidated the patrons and employees thereof; but stated that police officers went upon the premises of the plaintiff only in the necessary discharge and performance of the duty imposed upon them by law to prevent crime, and arrest offenders.
Defendants further denied that plaintiff was operating his business in good faith, but stated that the gasoline filling station was maintained by him almost wholly as a convenient place wherein criminals might meet, assemble, and loiter, and store and conceal firearms and other implements with which their crimes were committed. It was further stated that plaintiff had suffered and permitted a large number of vicious, idle, and vagrant characters to assemble upon his premises; that such assembling was a menace to the peace and quiet of the neighborhood; and that it was essential for the preservation of peace and good order that the police should, from time to time, arrest such of those persons who frequented the premises as they had reasonable grounds and probable cause to believe were guilty of the commission of crimes against the laws of the State, and of the violation of the ordinances of the city of St. Louis.
Finally, defendants averred that, by reason of the fact that plaintiff had conducted his gasoline filling station in the manner thus alleged, he did not come into court with clean hands, and was, therefore, not entitled to the relief prayed for, or to any other equitable relief.
Thereafter, the case was heard on the merits, at the conclusion of which the court decreed that the restraining order theretofore granted be dissolved; that defendants and their subordinates be permanently enjoined and restrained from keeping officers of the law on the premises of plaintiff's place of business; but that plaintiff's prayer for a permanent injunction as to all other matters contained in his petition be denied. From the injunction thus granted against them, defendants, as we have heretofore indicated, have appealed.
The evidence disclosed that plaintiff's filling station, consisting of the conventional office building and gasoline pumps, was situated on an open, unfenced lot, in full view of any one on the sidewalks bordering the same. Plaintiff is of Italian descent, and obtained the greater part of his patronage from members of his own race, residing in the immediate neighborhood of his place of business.
It appears from the testimony in the case that, for some time prior to the institution of this suit, a state of warfare had existed between rival gangs in the city of St. Louis, and that the police department had reasonable grounds for believing that a great many of plaintiff's customers, and of the habitues of his premises, were members of one of such gangs. Consequently, a determined effort to stamp out such gang activities was begun; and it was in the furtherance of such purpose, as well as upon the receipt of complaints as to specific disturbances in the neighborhood, that the searches and arrests here complained of were made. It may be conceded that in some instances the failure of the witnesses to identify any of the suspects so held precluded defendants from applying for warrants at the hands of the proper authorities. However, there was abundant evidence that many of the persons who came upon plaintiff's premises, ostensibly to purchase automobile supplies, or for other purposes, were known to be ex-convicts, criminals, gunmen, narcotic peddlers, drug addicts, and persons of manifest affluence, yet with no visible means of support.
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