State ex rel. Caron v. Dearing
| Decision Date | 30 December 1921 |
| Citation | 236 S.W. 629,291 Mo. 169 |
| Parties | THE STATE ex rel. GUY W. CARON et al. v. E. M. DEARING, Judge of Circuit Court |
| Court | Missouri Supreme Court |
Writ granted.
Atkinson Rombauer & Hill for relators.
(1) Under all the facts and circumstances in this case, there was no crying need for injunctive relief without previous notice or a hearing and the relators, having no adequate remedy by appeal or otherwise, were and are entitled to a writ of prohibition. Sec. 10, Art. 2, Mo. Constitution; Sec. 2057, R S. 1919; State ex rel. v. Fort, 210 Mo. 525; State ex rel. v. Reynolds, 275 Mo. 126; State ex rel. v. Wurdeman, 232 S.W. 1002; State ex rel. v McQuillin, 256 Mo. 707; State ex rel. v McQuillin, 262 Mo. 256; Tuttle v. Blow, 176 Mo. 171; State ex rel. v. Woodside, 254 Mo. 592; State ex rel. v. Dearing, 184 Mo. 659; State ex rel. v. Wear, 135 Mo. 230; State ex rel. v. Sale, 188 Mo. 496; State ex rel. v. Burney, 193 Mo.App. 336; State ex rel. v. Lamb, 237 Mo. 455; State ex rel. v. Elkin, 130 Mo. 109; State ex rel. v. Slate, 214 S.W. 85; State ex rel. v. Oliver, 163 Mo. 696; State ex rel. v. Hirzel, 137 Mo. 447; State ex rel. v. Eby, 170 Mo. 526; State ex rel. v. Pratt, 183 Mo.App. 209; State ex rel. v. Foster, 187 Mo. 613; State ex rel. v. Bradley, 193 Mo. 33; State ex rel. v. Fort, 178 Mo. 518. (2) Relators have filed a motion for judgment on the pleadings as in case Snyder v. Free, 114 Mo. 367.
James Booth for respondent.
(1) Respondent had jurisdiction over the subject-matter of the action commenced before him by the prosecuting attorney; and as he did not exceed that jurisdiction, his actions cannot be controlled by the extraordinary writ of prohibition. State ex rel. v. Shelton, 238 Mo. 281; State ex rel. v. Foster, 225 Mo. 205; State ex rel. v. McQuillin, 260 Mo. 176; State ex rel. v. McQuillin, 256 Mo. 704; State ex rel. v. Reynolds, 275 Mo. 113; State ex rel. v. Lamb, 237 Mo. 437; State ex rel. v. Woodside, 254 Mo. 580; State ex rel. v. Scarritt, 128 Mo. 331; State ex rel. v. Riley, 127 Mo.App. 476; State ex rel. v. Lewis, 76 Mo. 370; State ex rel. v. St. Louis Court of Appeals, 99 Mo. 216; State ex rel. v. Cockrell, 280 Mo. 289. (2) In this case, respondent was by statute expressly given jurisdiction over the subject-matter of the action. Sec. 1947, R. S. 1919. (3) There is no law in Missouri requiring the giving of notice before granting a temporary restraining order, except where proceedings are sought to be stayed. Sec. 1952, R. S. 1919. (4) In this proceeding in prohibition, respondent was the sole judge as to whether or not the petition filed by the prosecuting attorney stated a cause of action, and the sole judge as to whether or not the allegations of that petition evidenced or constituted such an emergency as to justify respondent in granting the temporary restraining order complained of, without notice; and his action cannot be controlled by the writ of prohibition. State ex rel. v. McQuillin, 260 Mo. 176; State ex rel. v. McQuillin, 256 Mo. 704; R. S. 1919, sec. 1950. (5) Relators' petition for the provisional or preliminary writ failing to show want or lack of jurisdiction by respondent, the final writ should be denied as a matter of course. (6) Relators, in their petition for the preliminary writ, having admitted all of the material and substantial allegations in the action instituted by the prosecuting attorney, and having admitted the maintenance of the public nuisance as charged by the prosecuting attorney in his petition, the temporary restraining order should have been granted as a matter of course without notice. State ex rel. v. Lamb, 237 Mo. 437. (7) Relators, by their motion for judgment on the pleadings, admit all facts well pleaded in the return of respondent, and the disputed facts are to be determined solely from the return and not from the allegations of relators' petition for the preliminary writ. State ex rel. v. McQuillin, 262 Mo. 260.
In Banc.
Prohibition.
-- This is an original proceeding in prohibition against respondent as judge of the Washington County Circuit Court to prevent the enforcement of a temporary injunction granted by him against relators and Missouri Pacific Railroad Company. On filing and examination of relators' petition our preliminary rule issued. Respondent has filed return thereto and relators have filed their motion for judgment on the pleadings, thereby admitting such facts in the return as are well pleaded.
Relators are doing business at Summit, in Washington County, as Summit Live Stock Company, and are engaged in feeding a large number of hogs with garbage shipped to Summit over the Missouri Pacific Railroad from the city of St. Louis under a contract with said city. The average shipments of garbage amount to three hundred tons daily. Relators have a large investment in said hogs. Unless said garbage is promptly removed from said city the health of the inhabitants will be endangered. During the hot months garbage decays and becomes putrid and will spread disease. Relators are under bond to said city to perform their contract. Said garbage consisted of bread, peelings, dead animals, glass, tin cans and other soured and decaying vegetables and animal matter. Said garbage caused offensive and injurious odors at relators' hog ranch and in the neighborhood thereof, tending to cause disease and pestilence and otherwise injuriously affected the general welfare of the people of the State, especially those living in the neighborhood of said hog ranch, many of whom own their homes. In other words, under the admitted facts the unloading and feeding of said garbage constitute a public nuisance. Relators contend and respondent denies that the place where said garbage is received and fed to hogs is in a very sparsely settled district and at a place where same is not harmful to any person and does not injure any of the inhabitants of Washington County. The fact, admitted by relators' motion for judgment, is that "many families consisting of men, women and children live and own their homes" in the vicinity of said hog ranch.
Respondent is judge of the Circuit Court of Washington County. On August 30, 1921, the prosecuting attorney of said county filed in said court his verified petition in the name of the State of Missouri, at his relation, alleging the facts above set out and praying injunctive relief. Notice was served on defendants that a hearing would be held on the petition before respondent on September 1, 1921, and on that date relators appeared and filed a general denial and an application for change of venue. Relators claim that respondent then announced that he would grant a temporary injunction against the defendants named in said petition before sustaining the application for change of venue if he found he had the power to do so. This is not admitted by respondent and is not taken as a fact. Respondent admits that he stated that notice had been given as a matter of courtesy, but in his judgment he had the right to grant a temporary injunction without notice. The prosecuting attorney thereupon dismissed the case without objection from relators.
On September 6, 1921, the same being the last day of the August Term, 1921, of said circuit court, said prosecuting attorney filed a new petition, substantially similar in all respects to the petition filed in the first suit, praying for an injunction restraining defendants from shipping said garbage to Summit and there unloading and feeding same to relators' hogs. On the same day and without notice to defendants of the pendency of the suit, respondent granted a temporary injunction as prayed. No injunction bond was or could be required of plaintiff. On the same day and after granting such temporary injunction, respondent adjourned his court to court in course, which convened October 1, 1921.
Relators contend that respondent indicated on the occasion of the hearing on the first suit that he had prejudged the case and in fact stated that if there was any way he could stop defendants he intended to do so. They also contend "that respondent has developed and manifested a strong ill will" toward them and that he "does not possess the unbiased frame of mind essential to a fair and impartial conduct of the trial of the issues involved in the case." These contentions are denied by respondent.
Upon learning that said temporary injunction had been granted, relators sought and obtained issuance of our preliminary rule in prohibition, charging in their petition that the acts of respondent were arbitrary, unjust and an unreasonable exercise and gross abuse of the powers vested in him by virtue of his office. If further facts appear necessary to a proper understanding of the case, they will be hereafter referred to.
Relators contend that under the circumstances above detailed respondent exceeded his jurisdiction when he granted the temporary injunction, without notice, to them, and immediately adjourned his court until October 1, 1921. On the other hand, respondent contends that no notice was required, or if required the case was one of such emergency as to authorize the granting of the temporary injunction upon the allegations of the petition of the prosecuting attorney without notice to defendants named therein.
Respondent's jurisdiction in vacation and that of his court in term are clearly provided for in Section 1947, Revised Statutes 1909. If our preliminary rule be made absolute, it must be on the ground that respondent exceeded his jurisdiction. Citation of authorities to sustain our right by prohibition to prevent inferior judicial tribunals from doing acts in excess of their respective appropriate jurisdiction is...
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