Schubach v. McDonald
| Decision Date | 23 December 1903 |
| Citation | 78 S.W. 1020,179 Mo. 163 |
| Parties | HERMAN SCHUBACH v. McDONALD, Judge, and CHICAGO & ALTON RAILWAY COMPANY; HIRT v. KINEALY, Judge, and ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILROAD COMPANY; LEONARD v. FISHER, Judge, and CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY; MAX SCHUBACH v. HOUGH, Judge, and MISSOURI PACIFIC RAILWAY COMPANY; STEINER v. WOOD, Judge, and ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY; WESSERMAN & COMPANY et al. v. HOUGH, Judge, and MISSOURI, KANSAS & TEXAS RAILWAY COMPANY |
| Court | Missouri Supreme Court |
Preliminary rule discharged.
Judson & Green and Henry W. Bond for petitioners.
(1) There is no primary equity in the petition for injunction and no existing controversy as to present existing property rights. State ex rel. v. Ross, 122 Mo. 457; State ex rel. v. Moore, 155 Mo. 445. (2) The writ of prohibition in Missouri is one of common-law and statutory right, and lies to restrain an inferior court from unauthorized acts, in cases of which such court has jurisdiction, as well as in those of which it has none. It lies in cases of excess of jurisdiction as well as want of jurisdiction. Railroad v. Ware, 135 Mo. 230; Spelling on Ex. Remedies, sec. 1726; R. S. 1899, secs. 4448 et seq.; State ex rel. v. Aloe, 152 Mo. 466; State ex rel. v. Oliver, 163 Mo. 696; State ex rel. v. Hirzel, 137 Mo. 447; State ex rel. v Elkin, 130 Mo. 105; State ex rel. v. Wood, 155 Mo. 445; State ex rel. v. Eby, 170 Mo. 497; School District v. Burris, 84 Mo.App. 663. (3) It is immaterial that the petitions for injunction may have been demurrable as failing to state a cause of action. The prohibition will lie, nevertheless, when the excess of jurisdiction involves irreparable injury to the defendant. State ex rel. v. Ross, 122 Mo. 435, 457; State ex rel. v. Elkin, 130 Mo. 90, 109; State ex rel. v Wood, 155 Mo. 425, 453. (4) The destruction of the business of petitioners constituted an irreparable injury without other adequate remedy by appeal or writ of error. State ex rel. v. Eby, 170 Mo. 526; Railroad v Wear, 135 Mo. 257. (5) The recitals in the petitions for injunction, of the coming Louisiana Purchase Exposition in St. Louis, are wholly disingenuous and misleading, as no relief is sought with reference to any specific ticket or tickets issued or to be issued for such exposition, and the injunction order of the circuit court is not limited to any such specific ticket or specific occasion. The recital is obviously misleading for the purpose of obscuring the real purpose, that of throttling in perpetuo the business of defendants by a universal injunction. 16 Am. and Eng. Ency. Law, 431; Block v. Huggins, 2 Tenn. Ch. 782; Huton v. Granelle, 4 Beav. 130; Clifton v. Robmen, 16 Beav. 355. (6) The right to a prohibition is in nowise affected by the defenses set up in the returns filed in the circuit court. It was our right and duty, while denying the jurisdiction in limine, to show that upon plaintiff's own theory the equities relied on for an injunction did not exist. State ex rel. v. Oliver, 163 Mo. 679; High's Extraordinary Legal Remedies, sec. 765; State ex rel. v. Aloe, 152 Mo. 484. (7) It is for the Legislature and not for the courts to determine, in advance, the right of defendants to engage in the business of buying and selling unused railroad tickets. It is the exclusive province of the lawmaking power to lay down and define rules of civil conduct which are unrelated to the judicial protection of existing property rights or issues thereon. Montesquieu on Spirit of the Law, p. 174; Mill on Representative Government, 326; 1 Pomeroy's Equity, 65; Cooley's Principles of Constitutional Law, p. 44; 13 Law Quarterly Review, p. 362; Osborn v. Bank, 9 Wheat. 319; Interstate Com. Com. Rep., 1896, pp. 327-344; Jones v. Perry, 10 Yerg. (Tenn.) 72; Taylor v. Place, 4 R. I. 336; 1 Beach on Injunctions, sec. 20; Hudnett v. Harris, 1 Del. Ch. 349; 1 Blackstone, p. 44; Ellsworth v. Hale, 33 Ark. 633; Bates v. Kimball, 2 Chap. (Vt.) 37; State ex rel. v. Aloe, 152 Mo. 456; Tanner v. Walbeun, 77 Mo.App. 262. (8) A court of equity can not enjoin where there is no existent basis of facts affording a present right which is directly threatened by the action sought to be enjoined. It has no power to enjoin unless the conditions have already arisen and come into being, which could be injured by the acts sought to be restrained. High on Inj., secs. 7, 9, 10 and 23; State ex rel. v. Aloe, 152 Mo. 479; Business Men's League v. Waddell, 143 Mo. 498. Therefore, an injunction can not be awarded to allay "mere apprehension." Church v. Marchof, 10 N.J.Eq. 57; Manfosee Co. v. Garrison, 26 How. Pr. (N. Y.) 448; Walthus v. Rogers, 16 Tex. 410; People v. Canal Road, 55 N.Y. 390; Lester R. E. Co. v. St. Louis, 169 Mo. 227; 16 Am. and Eng. Ency. Law (2 Ed.), p. 361. So to enjoin trespassers or nuisances, complainant must first show title and present fixed right in himself to the land affected or threatened with injury. Sullivan v. Moreno, 19 Fla. 200; Western v. M. V. Vie. C. C. Co., 10 W.Va. 250; Gleason v. Village of Jeff., 78 Ill. 399. (9) The order of the circuit court involves the substitution of attachments in contempt in its application to future issues of tickets for future occasions in place of the hearing and determination by the chancellor according to the special circumstances of the special case, and, therefore is violative of the fundamental limitations of injunction in remedial procedure. (10) This extraordinary and unprecedented order is not warranted for the protection of the business of the railroad companies. The future occasions when the right to issue excursion tickets may be exercised are not capable of judicial protection until the occasions arise. The abstract right must assume a concrete form before it becomes property in the judicial sense, capable of judicial protection. 2 Austin on Jurisprudence, secs. 815, 817; 1 Blackstone 138; State ex rel. v. Associated Press, 159 Mo. 449; St. Louis v. Hill, 115 Mo. 533. (11) The business of the ticket brokers is a lawful business, protected by the constitutional guaranties, and is the outgrowth of conditions created by the railroads themselves, and the incidental evils arising therefrom must be corrected by the exercise of the legislative power, and by the railroads themselves in providing for the redemption of unused tickets. People ex rel. v. Warden, 157 N.Y. 116; Railroad v. Beeves, 30 N. Y. L. J. 21; Fourth Annual Report of Int. Com. Commission, 1890, p. 369; Ninth Annual Report Interstate Commission, 1895, p. 103. (12) There is no judicial precedent sustaining this extraordinary claim for universal and blanket injunction with no concrete case presented for the exercise of judicial power. The cases cited from trial courts of other States in which injunctions have been granted, have all, without exception, rested on the equities growing out of specific occasions and the use of specific tickets therefor; in other words, this attempt to exercise judicial power without a concrete case is without judicial precedent. (13) The interruption and destruction of business by this attempted exercise of legislative power by laying down a rule of civil conduct for the future, with no concrete case presented for the application of the judicial power, is violative of the constitutional guaranties of due process of law in the Federal and State Constitutions. Constitution of the United States, fourteenth amendment; Constitution of Missouri, art. 2, sec. 30; Hunt v. Searcy, 167 Mo. 158; State ex inf. v. Washburn, 167 Mo. 691; State ex rel v. Ashbrook, 154 Mo. 394; State v. Julow, 129 Mo. 172; Brannon on Fourteenth Am., pp. 295-297; Cooley's Constitutional Limitations, 92.
Geo. P. B. Jackson for defendants Hough, Judge, and Missouri, Kansas & Texas Railway Company.
(1) The contention of the plaintiffs that the petititions for injunctions do not show that any "present right" is threatened; that no "concrete case" is presented; and that they do not "exhibit a present controversy as to existing property rights," but are simply endeavoring to secure a judgment of the court whereby to establish a rule for future conduct, is without merit, because: (a) The petition for injunction specifically alleges that arrangements have been perfected for the sale of reduced rate non-transferable tickets, and that the Missouri, Kansas and Texas Railway Company has been and is furnishing drovers' return tickets, and that when the injunction suit was brought, the defendants therein were engaged in buying and selling tickets of all of the above kinds, and fraudulently causing them to be used by persons not entitled to use them, and were threatening to continue such practice, all of which implies that the necessary tickets had been prepared and were ready to be furnished to any person desiring to use them. (b) But if the tickets had not been prepared, the railway company is entitled to the relief sought, because the injury done is to the property which the railway company has in the right to make such contracts, and in the franchise to carry on its business. Shoe Co. v. Saxey, 131 Mo. 212; State v. Julow, 129 Mo. 163; Celluloid Mfg. Co. v. Cellonite Mfg. Co., 32 F. 94; Enoch Morgan's Sons Co. v. Wendover, 43 F. 420. (2) It is not the law, as claimed by petitioners, that the defective statement of a cause of action deprives the court where the suit is brought of jurisdiction over the same, so that prohibition will lie.
E. S. Robert for defendants Fisher, Judge, and Chicago, Burlington & Quincy Railway Company.
(1) Railroads are compelled to serve all of the public upon the same terms, but are expressly authorized by law to issue non-transferable reduced-rate tickets, provided it offers them to all alike. R. S. 1899, sec. 1127; 1 Sup. R. S. U. S....
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