State ex rel. Burns v. Shain
| Decision Date | 03 March 1923 |
| Citation | 248 S.W. 591,297 Mo. 369 |
| Parties | THE STATE ex rel. O. J. BURNS v. HOPKINS B. SHAIN, Judge of Circuit Court |
| Court | Missouri Supreme Court |
Preliminary rule discharged.
W. D O'Bannon, Montgomery & Rucker and Paul Barnett for relator.
(1) The court had no jurisdiction, after an application for a change of venue was filed, to grant a preliminary injunction, even though to create the appearance that the injunction was granted in a different case from the one in which the application for a change of venue was filed, the prosecuting attorney dismissed and refiled substantially the same petition. State ex rel. v. Dearing, 236 S.W. 629. This being a case where a temporary injunction was granted without bond, the Supreme Court will closely scrutinize the proceedings complained of and prohibit such proceedings if a legal wrong is about to be committed for which there is no adequate remedy by appeal or otherwise. State ex rel. v Dearing, 236 S.W. 631; State ex rel. v. Lamb, 237 Mo. 455. (2) The court had no jurisdiction to issue an injunction in this case because the petition stated no cause of action. The rule in this State is that the court must not only have jurisdiction over cases of the class involved, but it must have jurisdiction to do the particular things done which must be conferred by the particular petition on file. State ex rel. v. Wood, 155 Mo. 425; State ex rel. v. Tracey, 237 Mo. 109; State ex rel. v. Lamb, 237 Mo. 437. The petition upon which the preliminary injunction was based seeks to enforce a statute, and by the terms of that statute it is the building which is declared to be a public and common nuisance, and the person who maintains or assists in maintaining such a nuisance is declared guilty of a misdemeanor. Laws 1921, p. 414, sec. 6549a. The statute does not describe who are proper parties to an injunction suit brought under the act. Laws 1921, p. 115, sec. 6549b. The common law recognized buildings or other edifices dedicated to obnoxious, dangerous and unlawful purposes as nuisances, although a place where intoxicating liquors was sold was not a common nuisance at common law. However, though it be conceded that the Legislature had power to extend this class of nuisances by legislation, yet it has always been held that a suit to abate a nuisance must be brought against the owner of the fee and against all persons whose right, title or interest may be effected. Danner v. Holtz, 74 Iowa 389; Eastman v. St. Anthony Falls, 12 Minn. 137; Brady v. Weeks, 3 Barb. 157; Hutchins v. Smith, 63 Barb. 251; 29 Cyc. 1238. Since the statute has only attempted to make the building a nuisance and there is no allegation that the defendant was the owner of the building, the petition simply amounts to an allegation that the defendant has violated the law by selling intoxicating liquors, and asks an injunction in order to deprive him of a right of trial by jury. A further reason why the court exceeded its jurisdiction in granting the injunction was because it was not made to appear by affidavit or otherwise to the satisfaction of the court, that a nuisance existed; and since there was no right to grant the injunction at common law, the only right the court has to exercise the authority to grant the preliminary injunction is the statute, and the statute requires that before a preliminary injunction issues, it must be made to appear, by affidavit or otherwise, to the satisfaction of the court, that a nuisance exists. Laws 1921, p. 415, sec. 6594b. (3) While it is our contention that the statute upon which the injunction suit was brought only defines the building as a nuisance and does not authorize a suit against one not an owner of the building in which suit the owner is not joined as a defendant, yet, if the statute be construed to create any such right, it is unconstitutional for two reasons: First, it is in violation of the section of the Constitution which provides that in criminal prosecutions the accused shall have the right of a speedy trial by an impartial jury of the county, and, second, it is in violation of the constitutional provision that the right of trial by jury as heretofore enjoyed shall remain inviolate. Sec. 22, art. 2, Mo. Constitution; Sec. 28, art. 2, Mo. Constitution. If prior to the adoption of the constitution in 1875, defendant had a right to a jury trial, whether by common law or by statute, such right cannot be whittled away but must remain inviolate. Berry v. Railroad, 223 Mo. 358. Where the effect of a statute giving a remedy in equity for what was formerly a legal demand, is directly to defeat the right of trial by jury, the statute is void. McMillan v. Wiley, 45 Fla. 487; Wiggins v. Williams, 36 Fla. 637; Davis v. Settle, 43 W.Va. 17. While the court may declare by statute certain disorderly houses to be nuisances, which were not at common law, yet, the nuisance must be in the nature of nuisances as they were known at common law. It is the disorderly house that is the nuisance. A provision for prosecuting as for a nuisance, is not constitutional unless it is shown that there are repeated recurrences of the criminal acts and an inadequacy at law. 10 A. L. R. 1556; United States v. Cohen, 268 F. 420. A criminal act cannot be made a nuisance by mere legislative declaration. 29 Cyc. 1197; 70 L. R. A. 1005. Enlarging the powers of a court of equity is a denial of a right of trial by jury. 24 Cyc. 182.
D. S. Lamm, Henry Lamm, J. D. Bohling and R. S. Robertson for respondent.
(1) If it is made to appear to the satisfaction of the court, or judge in vacation, that such a nuisance exists, as is alleged in the petition filed by the State of Missouri asking an injunction, a temporary writ of injunction shall forthwith issue. Sec. 6594b, Laws 1921, p. 415. (a) The case of State ex rel. v. Dearing, 236 S.W. 629, cited by plaintiff, is not in point; because that was not brought under a statute, and particularly not under a mandatory statute requiring the issuing of a temporary injunction forthwith. (b) The right of a change of venue is a purely statutory right, and when a subsequent statute was passed by the Legislature imposing the mandatory duty upon the judge to grant a temporary injunction forthwith, or give any other mandatory relief, such statute takes from out of the purview and effect of the change of venue statutes the right to a change of venue until the judge has discharged such mandatory duty. (c) Notwithstanding the notice that was served upon the defendant, who is plaintiff herein in the first petition for injunction, the court would have the right -- in fact, it would have been his duty -- to have granted a temporary injunction thereunder, had the petition prayed for a temporary injunction, notwithstanding that the defendant therein, who is now plaintiff, filed his application for change of venue prior to the granting of the temporary injunction, as the statute casts the mandatory duty on the judge when it appears by affidavit or otherwise, to his satisfaction that the nuisance exists. (d) The Legislature has seen fit to create a distinction and a difference between a temporary injunction sought under the circumstances here and the usual circumstances governing the granting of a temporary injunction, by casting a mandatory duty upon the judge to grant same forthwith when certain things appear to his satisfaction; and in so doing, has shown the plainest intent to deprive defendant of the right by dilatory pleas or motions to suspend the judge's right to grant the temporary injunction. This was no doubt done by the Legislature in view of the fact that such temporary injunction invaded none of defendant's rights, but only restrains him from doing that which is unlawful both under the state and national laws. By such temporary injunction it is not sought to close the building, nor does the law contemplate that the building shall be closed, but only that defendant shall be restrained from continuing the nuisance created by selling liquor in violation of the law. (e) The application for change of venue was finally filed and then withdrawn by relator. The matter was thus abandoned and had no further place in the case; for the maxim is, "What is abandoned is the same as if it never existed." If the relator claims error in the case, in the refusal to allow him to file his first application for change of venue at a time when the court had not passed on the application for a temporary injunction, then he should have preserved the matter by a bill of exceptions, and he should have stood on his right to file such change of venue at the very outset; but he waived all that by finally filing his application for change of venue, and he lost all of his right by abandonment of his second application for change of venue. (2) The petition stated a cause of action, as it is not necessary under the law in question for the owner of the building to be joined as a party defendant, unless it is sought to create a lien upon the building or the owner's property to pay the fines and costs of the proceedings. Sec. 6594a, Laws 1921, p. 414. The whole intent and purpose of the statute, under which the injunction proceedings were brought, is that the person conducting such nuisance shall be enjoined, or prosecuted if under the criminal statute. Sec. 6594a, Laws 1921, p. 414; Sec. 6594b, Laws 1921, p. 414. (a) Even if it were necessary to join the owner of the building in order to close the building, the failure to do so would be a defense to the granting of a permanent injunction for that purpose, but not to the granting of the temporary injunction; because the temporary injunction does not attempt to close the building, but only restrains the continuing of the nuisance by the sale of or the keeping of the liquor; and by the express...
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