State ex rel. Castlen v. Mulloy

• Citation: 55 S.W.2d 294,331 Mo. 776
• Parties: State ex rel. Harry W. Castlen, Prosecuting Attorney of St. Louis County; Alfred G. Lill, Sheriff of St. Louis County; Stratton Shartel, Attorney-General of Missouri; Robert F. Stanton, County Counselor of St. Louis County, and R. H. Baumer, Constable of St. Ferdinand Township, St. Louis County, Petitioners, v. Jerry Mulloy, Judge of the Circuit Court of St. Louis County, Division No. 2
• Decision Date: 16 December 1932
• Court: United States State Supreme Court of Missouri

55 S.W.2d 294

331 Mo. 776

State ex rel. Harry W. Castlen, Prosecuting Attorney of St. Louis County; Alfred G. Lill, Sheriff of St. Louis County; Stratton Shartel, Attorney-General of Missouri; Robert F. Stanton, County Counselor of St. Louis County, and R. H. Baumer, Constable of St. Ferdinand Township, St. Louis County, Petitioners, v. Jerry Mulloy, Judge of the Circuit Court of St. Louis County, Division No. 2

Supreme Court of Missouri

December 16, 1932

Preliminary rule made absolute.

Harry W. Castlen, Herbert W. Ziercher, Arthur V. Lashly, Albert Miller, Forrest C. Donnell and Holland, Lashly & Donnell for petitioners.

(1) In general, a court of equity has no jurisdiction to enjoin arrests or criminal prosecutions by public officials. State ex rel. v. Wood, 155 Mo. 449; 32 C. J. 261 279, 281; Russo v. Miller, 3 S.W.2d 268; Fitts v. McGhee, 172 U.S. 531; Kearney v. Laird, 164 Mo.App. 414; Foley v. Ham, 102 Kan. 66, L. R. A 1918C, 209; Sterman v. Kennedy, 15 Abb. Pr. (N. Y.) 201; Kramer v. Police Dept., 53 N.Y.S. 492; Campbell v. York, 30 Misc. 340; Delaney v Flood, 183 N.Y. 323; Stevens v. McAdoo, 112 A.D. 458; Shepard v. Bingham, 125 A.D. 784; Athletic Club v. Speer, 29 Colo. 158; Adams v. Oyster & Fish Co., 34 Colo. 219; Chicago v. Wright, 69 Ill. 318; Moses v. Mayor, 52 Ala. 208; Caille Co. v. Haager, 50 S.W. 244; Ex parte Sawyer, 124 U.S. 200, 31 L.Ed. 402. The exceptional cases in which courts of equity have jurisdiction to enjoin arrests or criminal prosecutions are only those in which exist each and all of the following facts: (a) That no crime has been, or is about to be, committed. (b) That no reasonable ground exists for suspicion, by the public officials, that a crime has been, or is about to be, committed. (c) That a direct invasion of property rights will be involved in such arrest or prosecution. (d) That irreparable injury will result from such arrest or prosecution. (e) That the complainant comes into court with clean hands. Certain of said five facts do not exist in the case at bar. On point that crime was about to be committed by respondent see: State v. Stolberg, 2 S.W.2d 619; Secs. 4285, 4286, 4291, 4303 and 4314, R. S. 1929; Art. XIV, Sec. 10, Const. of Mo.; State ex rel. Gentry v. Ramona Kennel Club, 8 S.W.2d 1; Definitions in 12 R. C. L. 707, 720, 721, 747, and 726; St. Louis Fair Assn. v. Carmody, 151 Mo. 566; State ex rel. Cantley v. Meyer Tailoring Co., 25 S.W.2d 98; State ex rel. v. Hughes, 253 S.W. 229; State v. Becker, 248 Mo. 559; Kearney v. Laird, 164 Mo.App. 406; Fleming v. Wengler, 190 S.W. 875, 269 Mo. 366; State v. Huber, 263 S.W. 94, 304 Mo. 15; State v. Emerson, 1 S.W.2d 109, 318 Mo. 633. As to the effect of existence of reasonable ground for suspicion and the right of officials to exercise discretion see: Kearney v. Laird, 164 Mo.App. 413; State ex rel. Shartel v. Westhues, 320 Mo. 1111, 9 S.W.2d 612; Selecman v. Matthews, 321 Mo. 1051; Russo v. Miller, 3 S.W. 269; Oliver v. Orrick, 288 S.W. 969; Modern Horseshoe Club v. Stewart, 242 Mo. 431; 32 C. J. 242, sec. 384; 32 C. J. 253, sec. 398; 22 R. C. L. 490, 493; 2 High on Injunctions (4 Ed.) 1324, 1325, sec. 1311; 4 Pomeroy's Equitable Jurisdiction (4 Ed.) 4064, sec. 1751; 22 Cyc. 880; Decker v. Diemer, 229 Mo. 296; Gaines v. Thompson, 74 U.S. 352, 19 L.Ed. 65; 2 High on Injunctions (4 Ed.) sec. 1326; Kerr on Injunctions, p. 4; Spelling on Injunctions, secs. 628, 691; 3 Abbott on Municipal Corp., secs. 1130, 1137; 22 Cyc. pp. 879, 889; Ballentine's Law Dict., p. 979; 3 Bouvier Law Dict., pp. 2615-23; Freund on Police Powers, sec. 86. With respect to direct invasion of property rights and irreparable injury, see Modern Horseshoe Club v. Stewart, 242 Mo. 421; State ex rel. v. Wood, 155 Mo. 447; Secs. 3945, 3954, R. S. 1929; State ex rel. v. Kreuger, 217 S.W. 310, 280 Mo. 299; Kearney v. Laird, 164 Mo.App. 413; Sullivan v. Gas Co., 148 Cal. 368; Fincke v. Police Comm., 66 How. Pr. 318; Kenny v. Martin, 11 Misc. 651; Suesskind & Rehfeldt v. Bingham, 125 A.D. 787; Moore v. Owen, 109 N.Y.S. 585; Russo v. Miller, 3 S.W.2d 269. With respect to necessity for clean hands, see Russo v. Miller, 3 S.W.2d 266; Modern Horseshoe Club v. Stewart, 242 Mo. 431. (2) It appearing upon the face of plaintiff's petition that plaintiff has no powers nor privileges not possessed by individuals or partnerships, it is not a suable entity; and, therefore, cannot maintain this action. Sec. 11, Art. XII, Const. of Mo.; Sec. 4526, R. S. 1929; Newton County Farmers & Fruit Growers Exchange v. Ry. Co., 326 Mo. 622; Mayes v. United Garment Workers, 320 Mo. 19; Clark v. Grand Lodge, 43 S.W.2d 405. And power or privilege must be conferred by statute. Newton County Farmers & Fruit Growers Exchange v. Ry. Co., 326 Mo. 622; Clark v. Grand Lodge, 43 S.W.2d 405. (3) Prohibition is the proper remedy to prevent a court from assuming a jurisdiction which it has not or exceeding a jurisdiction which it has. State ex rel. v. Aloe, 152 Mo. 483; State ex rel. v. Elkins, 130 Mo. 109; State ex rel. v. Porterfield, 6 S.W.2d 47; State ex rel. v. Denton, 128 Mo.App. 304; State ex rel. v. Fort, 107 Mo.App. 328; State ex rel. v. Allen, 45 Mo.App. 557. Prohibition will issue to prevent the enforcement of a void decree. State ex rel. v. Wood, 155 Mo. 425, L. R. A. 596; State ex rel. v. Hennings, 194 Mo.App. 546. Prohibition is the proper remedy to prevent an abuse of judicial power where the remedy of appeal or writ of error is inadequate. State ex rel. v. Burney, 193 Mo.App. 326; State ex rel. v. Eby, 107 Mo. 526; State ex rel. v. Hall, 12 S.W.2d 94; State ex rel. v. Mills, 231 Mo. 493. The remedies of appeal and writ of error are wholly inadequate in this case. State ex rel. v. Calhoun, 234 S.W. 855; State ex rel. v. Burney, 193 Mo.App. 336; State ex rel. v. Withrow, 133 Mo. 500; State ex rel. v. Spencer, 166 Mo. 271; Railroad v. Wear, 135 Mo. 230; State ex rel. Bickford v. Porterfield, 6 S.W.2d 47.

Henry Rowe, T. J. Rowe and Thos. J. Rowe, Jr., for respondent.

(1) The petition must affirmatively allege every fact upon which to base the authority for the issuance of the writ. State ex rel. v. Ryan, 79 S.W. 429; State ex rel. v. Huck, 246 S.W. 303; Barnes v. Gottschalk, 3 Mo.App. 223. (2) The petition fails to allege and the record fails to show the pendency of any suit or proceeding before respondent as Judge of the Circuit Court of St. Louis County. State ex rel. v. Ryan, 79 S.W. 429; State ex rel. v. Huck, 246 S.W. 303; Barnes v. Gottschalk, 3 Mo.App. 223. (3) The Supreme Court will not take judicial notice of the rules of circuit courts. State ex rel. Clinton Const. Co. v. Johnson, 272 S.W. 928; Fox-Miller Grain Co. v. Stevens, 217 S.W. 994; O'Donnell v. New York Life Ins. Co., 251 S.W. 82; Hirsch v. Hirsch, 273 S.W. 151. A motion for a rehearing is not authorized by any law, and when filed to circumvent the mandate of the statute limiting the time for answering is necessarily frivolous and may be disposed of immediately. Secs. 768, 769, 813, R. S. 1929; Valle v. Picton, 16 Mo.App. 180; Nelson v. Betts, 30 Mo.App. 10; Cashman v. Anderson, 26 Mo. 67; State v. Underwood, 76 Mo. 630. (4) Equity will enjoin the prosecution of crime, but the petition must state facts showing that irreparable injury to property or property rights will result, save for the intervention of a court of equity by injunction. Russo v. Miller, 3 S.W.2d 266; Kearney v. Laird, 164 Mo.App. 406; State ex rel. v. Wood, 56 S.W. 474. A court of equity has jurisdiction to inquire into the legality of any threatened invasion of property or rights of property, by public officers charged with the enforcement of the criminal laws, where the facts alleged in the petition show that irreparable injury will result to plaintiff's property, if such invasion is held unlawful. Merchants' Exchange v. Knott, 111 S.W. 651; State v. Hall, 250 S.W. 64; State ex rel. v. Wood, 56 S.W. 474. (5) If to make up and distribute a purse on a horse race is not betting or wagering or other gambling, as has been universally held, neither is the distribution of a purse or possible oversubscriptions on a dog race in the manner described in the petition. Treacy and Wilson v. Chinn, 79 Mo.App. 651; State v. Hayden, 31 Mo. 35; St. Louis Fair Assn. v. Carmody, 151 Mo. 571; State v. Lemon, 46 Mo. 375; Delier v. Plymouth County Agricultural Society, 57 Iowa 481; People v. Fallon, 4 A.D. 82; Alvord v. Smith, 63 Ind. 58; Harris v. White, 81 N.Y. 532; Wilson v. Conlin, 3 Ill.App. 517.

OPINION

Atwood, J.

This is an original proceeding in prohibition by the Prosecuting Attorney, the Sheriff and the County Counselor of St. Louis County, Missouri, the Attorney-General of the State and the Constable of St. Ferdinand Township in said county and state, as petitioners, to prevent respondent from enforcing or causing to be enforced the provisions of a certain decree rendered by him in an injunction suit against them, and from doing any act or entering any order pertaining to the punishment or citation of petitioners as for contempt for a violation of the terms and provisions of said decree. Respondent made return to our preliminary rule and petitioners filed verified reply thereto. Respondent thereupon filed motion for judgment on the pleadings.

The question for decision is whether our preliminary rule prohibiting respondent from enforcing the decree rendered by him in the injunction suit should be discharged or made absolute.

It appears from the pleadings herein that no evidence was taken. If, as petitioners contend, plaintiff's petition stated no cause of action against defendants then the decree rendered is void, and prohibition will lie to restrain its enforcement if there is no other adequate remedy. [State ex rel. v. Mills, 231 Mo. 493, 503, 133 S.W. 22; 32 Cyc 621, 622,...