State ex rel. Hog Haven Farms v. Pearcy, 30267.

Decision Date29 July 1931
Docket NumberNo. 30267.,30267.
Citation41 S.W.2d 403
PartiesTHE STATE EX REL. HOG HAVEN FARMS, CITY OF ST. LOUIS, VICTOR J. MILLER, Mayor, and ROBERT B. BROOKS, Director of Streets and Sewers, of City of St. Louis, v. CLAUDE O. PEARCY, Judge of Circuit Court of Eighth Judicial Circuit.
CourtMissouri Supreme Court
41 S.W.2d 403
THE STATE EX REL. HOG HAVEN FARMS, CITY OF ST. LOUIS, VICTOR J. MILLER, Mayor, and ROBERT B. BROOKS, Director of Streets and Sewers, of City of St. Louis,
v.
CLAUDE O. PEARCY, Judge of Circuit Court of Eighth Judicial Circuit.
No. 30267.
Supreme Court of Missouri.
Court en Banc, July 29, 1931.

[41 S.W.2d 404]

Prohibition.

PROVISIONAL RULE DISCHARGED (except as to the non-resident relator, as to whom it is made absolute).

Julius T. Muench, Oliver Senti, Jourdan & English, Whitnel & Browning and J.R. McMurdo for relators.

(1) Injunctive relief can be granted to a plaintiff only when warranted by the pleadings, and it is excess of jurisdiction for a court to grant a temporary injunction based upon a petition which fails to allege facts warranting such temporary injunction. State ex rel. McManus v. Muench, 217 Mo. 124; State ex rel. Hyde v. Westhues, 316 Mo. 457; Realty & Investment Co. v. Deere & Co., 208 Mo. 85; Schuster v. Myers, 148 Mo. 429; State ex rel. Anderson v. Daues, 287 S.W. 603. (2) On an application for a temporary injunction it is the duty of the court to take into consideration the injury or inconvenience likely to result to the public at large or even to defendants in case an injunction be awarded, and to refuse such injunction if the benefit to plaintiffs does not outweigh the inconvenience to the public or to defendants. 32 C.J. 81; Johnson v. Railroad, 227 Mo. 423; Horine v. Sewer Co., 200 Mo. App. 233; Steinmetz v. Lead Co., 176 S.W. 1051. (3) Equity will not enjoin an anticipated nuisance unless it clearly appears that such nuisance is bound to result from the acts of the defendant sought to be enjoined, and an injunction issued in contravention of this rule is without authority. Hazlett v. Refining Co., 30 Fed. (2d) 808; McDonough v. Robbens, 60 Mo. App. 156; Aufderheide v. Ice & Fuel Co., 4 S.W. (2d) 776. (4) Right acting on the part of public officials is presumed and, in the performance of a contract made by them, it is to be presumed that, if a nuisance results from such contract, the city authorities will take the necessary steps to abate such nuisance; but a court cannot enjoin the city officials from entering into or performing such contract on the ground that the contractor with the city has in the past or will in the future maintain a nuisance. State ex rel. Murphy v. Burney, 269 Mo. 602. (5) The disposal of garbage by the city is a governmental function, which may not be enjoined by the courts at the suit of private persons. Behrmann v. St. Louis, 273 Mo. 578; Gibson v. Baton Rouge, 161 La. 637, 47 A.L.R. 1152; 43 C.J. 958-959; State ex rel. v. Sedalia, 241 S.W. 657. (6) City officials cannot be enjoined or held responsible for the acts of an independent contractor for the disposal of garbage, even though the contractor might become liable himself. Hilsdorf v. St. Louis, 45 Mo. 94; Holman v. Clark, 272 Mo. 266. (7) The enforcement of a temporary injunction granted against a defendant without notice, in order to prevent the removal of the cause to another venue, will be prohibited. State ex rel. v. Dearing, 291 Mo. 169. (8) A court should not grant an injunction to restrain a city from disposing of its garbage where it is apparent that rival contractors are stirring up the litigation. Tuttle v. Church, 53 Fed. 422; Peltzer v. Gilbert, 260 Mo. 500.

Foristel, Mudd, Blair & Habenicht for respondent.

(1) Prohibition cannot be made a substitute for a demurrer to a petition or a means of correcting errors of trial courts. It involves questions of jurisdiction only. State ex rel. v. Tracy, 237 Mo. 118; High on Extraordinary Remedies (3 Ed.), sec. 767a, pp. 713, 714; State ex rel. v. McQuillin, 256 Mo. 706; Schubach v. McDonald, 179 Mo. 182; State ex rel. v. Stobie, 194 Mo. 52. (2) Relators ignore the fact in prohibition proceedings this court gives heed to the fact that pleadings are amendable and that this is an important and, in many cases, determinative consideration when prohibition is sought here. In fact, it must appear "that no amendment could be made by which jurisdiction could be conferred" before prohibition will lie because of insufficiency of a petition. State ex rel. v. McQuillin, 256 Mo. 705; State ex rel. v. Riley, 276 S.W. 885. (3) Things which "impair in a substantial way the comfort, repose and enjoyment" of homes and properties may be enjoined. Hayden v. Tucker, 37 Mo. 214; Street v. Marshall, 316 Mo. 705; State ex rel. v. Tube Co., 316 Mo. 644. (4) All the allegations of the petition in the Koenig case are to be assumed to be true in this proceeding. State ex rel. v. Westhues, 316 Mo. 469. (5) Relators' claim that "public convenience and necessity" affects jurisdiction in this case is unfounded: (a) On the record and admissions no such question can arise, as a matter of fact; (b) as a matter of law, such questions are relevant on a hearing, as a bill for injunction, but have nothing to do with jurisdiction. Joyce on Nuisances, secs. 483, 484; 32 C.J. 81, 82, sec. 66, and notes; Atty.-Gen. v. Birmingham, 4 Kay. & J. 528; Lillywhite v. Trimmer, 36 L.J. Ch. (N.S.) 530; Banbury v. Bd. of Health, L.R.I. Eq. 42. (6) The pleadings and the hearing and the finding in the trial court made a complete case for enjoining the creation of the threatened nuisance. The pleadings and admissions of relators here confirm the righteousness of the trial court's action. The decisions are numerous. San Antonio v. Hamilton, 180 S.W. 160; Pierce v. Gibson, 107 Tenn. 224; Missouri v. Illinois, 180 U.S. 208; Dwight v. Hayes, 150 Ill. 273; Phipps v. Canal Co., 80 Ore. 175; Ry. Co. v. Rochester, 127 N.Y. 591; Rush Springs v. Bentley, 182 Pac. 664; Eckles v. Weibley, 232 Pa. 547; Caskey v. Edwards, 128 Mo. App. 237; Holke v. Herman, 87 Mo. App. 125; City of San Antonio v. Mackey, 14 Tex. Civ. App. 213. (7) There can be no presumption of right action when the persons asking the Court to clothe them with such a presumption are now in this court for the sole purpose of getting leave to do the things which indubitably show wrong action. (a) The general power to dispose of garbage gives the city and its officials no authority to create a nuisance in exercising that power. Edmondson v. Moberly, 98 Mo. 523; Smith v. Sedalia, 152 Mo. 302, 70 L.R.A. 581-584. (b) No special injury other than interference with comfortable enjoyment of property is required to enable a private person to sue to abate even a public nuisance. Edmondson v. Moberly, 98 Mo. 525. (c) The fact that many are injured, and many are injured who do not join, does not affect the case. Givens v. Van Studdiford, 86 Mo. 158; Newman v. Marceline, 6 S.W. (2d) 660; Joyce on Nuisances, secs. 13, 14; Wood on Nuisances, secs. 14, 15, 16. (d) It is not claimed that the fact that Hog Haven Farms, Inc., is not enjoined in any way prevents the enjoining of the other defendants who appeared and tried out the matter. The law is too well settled the other way to admit of dispute. Givens v. Van Studdiford, 86 Mo. 158; Powers v. Ry. Co., 169 U.S. 92. (8) The contention of relators that "the city is not liable for the contractor's acts" is without foundation either in the facts of this record or the applicable law. The cases cited by relators refute the claim and have no other application here.

ATWOOD, C.J.


This is an original proceeding by the State of Missouri at the relation of Hog Haven Farms, Inc., a corporation, the City of St. Louis, a municipal corporation, Victor J. Miller, Mayor of the city of St. Louis, and Robert B. Brooks, Director of Streets and Sewers of the city of St. Louis, to prohibit Honorable Claude O. Pearcy, Judge of the Circuit Court of the Eighth Judicial Circuit of the State of Missouri, from keeping in force or enforcing a certain injunction order issued by him, or punishing relators or any of them as for a contempt should said injunction order be violated. Our provisional rule issued on relators' amended petition, respondent filed return and answer thereto, and relators filed reply. Relators also filed motion for appointment of special commissioner to hear and try issues of fact raised by the pleadings. This motion was overuled, and the cause now stands on the issues of law raised and facts conceded by the pleadings.

On this submission we understand relators' chief contention to be that the order in question is in excess of Jurisdiction. respondent's jurisdiction because not warranted by the allegations of plaintiffs' petition upon which it was issued.

Replying thereto counsel for respondent say: "Prohibition cannot be made a substitute for a demurrer to a petition or a means of correcting errors of trial courts. It involves questions of jurisdiction only." This may be conceded, but the question thus raised by relators is one of jurisdiction. As said in State ex rel. v. Wood, 155 Mo. 425, 445, 56 S.W. 474 (quoted with approval in State ex rel. Hyde v. Westhues, 316 Mo. 457, 469, 290 S.W. 443):

"Whether the circuit court was without jurisdiction altogether, or having jurisdiction of the class of cases in which the injunction was sought it exceeded its jurisdiction, is only ascertainable in this case by the averments in the bill filed in that court and the orders made thereon. The fact that said court was a court of general equity jurisdiction and has the power to issue or direct writs of injunction to issue, will not of itself answer the contention made in this case. Courts of equity are not invested with power to enjoin in any and every case, but there must be some special circumstances bringing the case under some recognized head of equity jurisdiction before it will wield the powerful writ of an injunction."

Respondent's order here in question was issued February 17, 1930, in a certain case then pending before him entitled H.C. Koenig et al. v. Hog Haven Farms, Inc., et al., after notice and hearing at which all defendants except Hog Haven Farms, Inc., appeared. The order provided that "defendants and N...

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