State ex rel. Delmar Jockey Club v. Zachritz
| Citation | 65 S.W. 999,166 Mo. 307 |
| Parties | THE STATE ex rel. DELMAR JOCKEY CLUB et al. v. ZACHRITZ, Judge |
| Decision Date | 21 December 1901 |
| Court | Missouri Supreme Court |
Peremptory writ denied.
John H Overall, M. L. Clardy and Boyle, Priest & Lehmann for relators.
(1) A writ of prohibition issues whenever the lower court is without jurisdiction, or is acting in excess of its jurisdiction, or in abuse of its powers, and no other remedy is available. State ex rel. v. Wood, 155 Mo. 425; Railroad v. Wear, 135 Mo. 230; State ex rel. v Elkins, 130 Mo. 90; State ex rel. v. Hirzel, 137 Mo. 447. (2) The petition for injunction does not show that the gaming is done or the gaming house is maintained within the city of St. Louis, and the circuit court of the city was, therefore, without jurisdiction. State v Kyle, 10 Mo. 389. (3) A court of chancery has no jurisdiction simply to enjoin gaming or the keeping of a gaming house. State v. Uhrig, 14 Mo.App. 413; State v. Schweickhardt, 109 Mo. 496; People v. District Court, 26 Colo. 386. (4) There was no jurisdiction for the cancellation of licenses; for, under the averments of the petition, there were no licenses, the papers referred to being absolutely void. Railroad v. Reynolds, 89 Mo. 146; Railroad v. Lowder, 138 Mo. 533; Holland v. Johnson, 80 Mo. 34; Morgan v. Pump Co., 74 Mo.App. 159; 1 High on Injunctions, sec. 89. (5) The petition improperly joins nineteen different defendants and fifteen distinct and separate causes of action, when there is no community of interest between any two of the defendants as to any of the causes of action. (6) The issuance of the injunction order deprived the defendants of their rights and properties, without due process of law, and was therefore an abuse of judicial power.
Edward C. Crow, Attorney-General, for respondent.
(1) Prohibition is an extraordinary writ, issuing out of a superior court, directed to the judge and parties of a suit in an inferior court, commanding them to cease from a prosecution thereof by reason of the original cause or some collateral matter arising therein being outside of the jurisdiction of the court. 8 Mo. 252; 3 Blackstone's Commentaries, p. 112. A writ of prohibition issues from a superior to an inferior court to restrain the latter from exceeding its jurisdiction. 8 Mo. 252. It issues to an inferior court when such court exceeds its jurisdiction in a cause of which it may take cognizance no less than when it has no jurisdiction whatever. State v. St. Louis Court of Appeals, 99 Mo. 216; State v. Slover, 126 Mo. 652; State v. Withrow, 133 Mo. 500; Railroad v. Wear, 135 Mo. 230. (2) It becomes important immediately to determine what was the cause of action. The bill asks that the licenses be delivered up and cancelled and that the defendants be restrained from using the same. An equitable action will lie to cancel an instrument upon a proper showing. Upon proper showing, equity can enjoin the use of written instruments wrongfully and fraudulently obtained and used. No doubt exists but what injunction is an equitable remedy. (3) The merits of the original proceeding will not be inquired into in a prohibition proceeding. 41 La. Ann. 963; 43 La. Ann. 1059; 105 U.S. 451. The only inquiry is, Did the court have jurisdiction of the general class of cases to which the particular case belongs, and not whether it has jurisdiction of this particular case? 104 Mo. 434; 64 Ala. 312; 116 Ala. 491; 68 Conn. 543; 45 Mo. 283. The Supreme Court can not inquire whether the lower court had jurisdiction in the particular case. "That would be to convert a writ of prohibition which proceeds upon an excess of jurisdiction into a writ of error which proceeds upon an error in the exercise of jurisdiction." 21 W.Va. 142. The right of the circuit court to cancel a paper fraudulently issued and obtained can not be denied. Whether the facts alleged in the bill are such as would authorize the court to cancel it, is a matter within the proper authority and jurisdiction of the circuit court to decide. 21 W.Va. 143; 45 Mo. 283; 34 W.Va. 336. (4) Defective averments in pleading are not ground for writ issuing. 64 Ala. 317; State ex rel. v. Railroad, 100 Mo. 59. (5) The attorney-general can institute this action. Sec. 4943, R. S. 1889; 51 Mo. 350. No property right of the State need be involved. 158 U.S. 586; 11 Howard 552; 128 U.S. 366. (6) This action is not one against the Delmar track. It is not one affecting the Delmar track as real estate. It is not a real action. Actions in replevin, attachment suits and those affecting real estate are local, all others are transitory. 48 Mo.App. 494; 42 Mo. 467; R. S. 1899, secs. 562, 563, 564; Easton v. Collier, 1 Mo. 603. The corporation sued in this case is a resident of the city of St. Louis. No presumption will be indulged that the court did not have jurisdiction. It will be contended by petitioners that the writ should not be issued to prevent the court from exercising jurisdiction over actions or parties, the subject-matter of which lie beyond the territorial limits of its jurisdiction. It must be remembered that this rule is qualified by the other principle that the writ will not lie on the ground that the court is exercising jurisdiction over parties or a subject- matter which is beyond its jurisdiction when there is another adequate remedy, as by writ of error, appeal or certiorari. Bank v. Superior Court, 83 Cal. 491; Agassiz v. Superior Court, 90 Cal. 103; State v. Malone, 23 So. Rep. 574; State v. Hocker, 33 Fla. 283; Moore v. Superior Court, 64 Cal. 345; 19 Abbott's Practice Rep. (N.Y.), 136; 35 Minn. 178.
In Banc
Prohibition.
This is an original proceeding, by petition, for a writ of prohibition against the defendant, one of the judges of the St. Louis City Circuit Court, prohibiting him as judge of said court, from the further exercise of any jurisdiction in the case of the State of Missouri ex rel. Edward C. Crow, Attorney-General, against the relators. The return of the defendant to the preliminary order is a demurrer to the petition, and a motion for judgment thereon, denying the writ, on the ground that it therein appears that the said circuit court had jurisdiction of the persons and of the subject-matter of said suit, and it does not appear that said court has exceeded its jurisdiction, or that it intends to do so.
It appears from the petition that on August 27, 1901, suit was instituted in the St. Louis City Circuit Court in the name of the State, by the Attorney-General, against the relators, by petition, in the nature of a bill in equity, the gravamen of the complaint in which was in substance that the defendant on August 6, 1901, wrongfully, fraudulently and surreptitiously obtained from one Stephen C. Rodgers, fifteen licenses, numbered from 446 to 460, inclusive, and signed by Albert O. Allen, State Auditor, authorizing the defendants, respectively therein named, to "make books," "sell pools" and "register bets" under the provisions of article 2, chapter 105, Revised Statutes 1899, on races to be run on Delmar Race Track on forty-seven days therein specified between said date and September 28, 1901, inclusive. That said licenses were issued to said defendants without authority of the said Auditor. That defendants by virtue of said fraudulent licenses and under color of same are engaged in making books, selling pools, and registering bets on the Delmar Race Track, which is partly in the city of St. Louis and partly in the county of St. Louis, and threaten to continue so doing until said last-mentioned date, wherefore plaintiff prayed that the defendants be required to bring said fraudulent licenses into court for cancellation, and that in the meantime they be enjoined from making books, selling pools, and making bets on said race track by virtue and under color of authority of said licenses, and that such injunction be made perpetual on final hearing.
In answer to a rule to show cause why a temporary injunction should not be granted on said bill, the defendants therein on August 30, 1901, appeared and filed a demurrer thereto, which having been argued by counsel for the respective parties, was taken under advisement until September 3, 1901, when, without passing on the demurrer, the defendant therein, judge of said court, granted a temporary injunction restraining the defendants therein (relators herein) until further order, "from making books, selling pools, registering bets and making wagers on the Delmar Race Track located in the city and county of St. Louis, by virtue and authority, and under color of certain alleged pretended licenses dated August 6, 1901, and being numbered from 446 to 460, inclusive, and that the defendant the Delmar Jockey Club be enjoined and restrained until further order of this court from permitting any person or persons to engage in the avocation of book-making, pool-selling, or registering bets on horse races, run on said race track, or betting or gambling on said track by virtue and authority of the licenses aforesaid." And on September 6, 1901, the preliminary order for prohibition was issued by a judge of this court.
(1) By article 2, chapter 105, Revised Statutes 1899, "book-making," "pool-selling," and "registering bets" on horse races, without a license issued under the provisions of that article by the State Auditor, is made a misdemeanor punishable by fine or imprisonment or both. If the purpose of the suit instituted in the St. Louis City Circuit Court...
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