State v. Huck

Citation246 S.W. 303,296 Mo. 374
Decision Date20 December 1922
Docket NumberNo. 23042.,23042.
PartiesSTATE ex rel. BRNCIC v. HUCK, Circuit Judge, et al.
CourtUnited States State Supreme Court of Missouri

Chas. G. Revelle, of St. Louis, and B. H. Boyer, of Farmington, for relator.

Jesse W. Barrett, Atty. Gen., Marshall Campbell, Sp. Asst. Atty. Gen., and Henry Davis, Asst. Atty. Gen., for respondents.

HIGBEE, J.

On the application of relator we issued a preliminary rule prohibiting the respondent Huck, judge of the Twenty-Seventh judicial circuit, the prosecuting attorney and sheriff of St. Francois county, from taking cognizance of a certain injunction proceeding pending in the circuit court of said county. It will not be necessary to set out the return.

On September 17, 1921, W. E. Coffer, prosecuting attorney of St. Francois county, filed in the circuit court of said county a verified petition alleging, inter alia, that Frank Brncic since January 1, 1921, has continuously occupied a building situated on leased lot No. ___, in block No. ___, in the town of Desloge, in said county, in which he has since said date run and operated a pretended grocery store, dry bar, and pool room, and that he has in fact openly and continuously engaged in the unlawful manufacturing, keeping, storing, selling, and giving away intoxicating liquor such as whisky, wine, beer, and other alcoholic liquors, containing in excess of one-half of 1 per cent. of alcohol by volume at said place on each day of the week, including Sunday, up to the filing of this petition, and permitted gambling and allowed persons to congregate at said place for the purpose of gambling and buying, receiving, and using intoxicating liquors for beverage purposes; that large numbers of idle, turbulent, dissolute, and immoral persons addicted to the excessive use of ardent spirits assemble at said place, by reason whereof much disorderly conduct has occurred in and around said premises. and that said place is a public nuisance. The petition prayed a temporary injunction pending the final hearing of the cause. The temporary writ, after reciting briefly the substance of the averments of the petition, proceeds:

"And, it appearing that the plaintiff is entitled to the relief prayed for, it is by the court hereby ordered, adjudged, and decreed that a temporary writ of injunction be, and the same is hereby, granted in favor of the plaintiff and against the defendant herein, enjoining the defendant herein, his agents, employés, confederates, and all other persons from continuing the running and operating (of) the pool room, dry bar, or soft drink counter and store mentioned in said petition, and the selling, manufacturing, possessing, bartering, giving away, or otherwise disposing of or handling of any kinds of intoxicating liquors, or alcoholic liquids containing in excess of one-half of 1 per centuna by volume of alcohol, at said pool room, soft drink counter, or dry bar, and store, or any other place in the county of St. Francois and the state of Missouri, until the further order of this court."

In relator's suggestion for the writ of prohibition, it is claimed that the order is in excess of the jurisdiction of the court because: (1) It enjoins relator from conducting any grocery store, soft drink counter, etc., and the petition fails to locate or identify such grocery store or allege that any violations of the liquor law are being committed at any grocery store, etc. (2) No notice was given to relator of the presentation of the petition. (3) Relator has not been served with legal process and no criminal or civil action is pending against relator charging him with a violation of the liquor, laws of the state. (4) Although no such proceeding is pending against relator, the order fails to designate any time or place when relator, may be heard in relation to the matters mentioned.

Relator's reply to respondent's return to the preliminary writ moves the court to make permanent the writ of prohibition because (a) the writ was issued without notice; (b) the bill is based solely upon information and belief of the prosecuting attorney; (c) it is based on mere suspicion and not supported by affidavit of any person of any fact; (d) the legal effect of this proceeding is a violation of section 30, art. 2, of the Constitution of Missouri; (e) to enforce same would be to deprive relator of his liberty or property without due process of law; (f) it is an attempt to convert the equity side of the court into a criminal court and deprive him of the right of trial by jury as provided by sections 22 and 28, article 2, of the Constitution of Missouri; (g) it is a violation of relator's rights under the Fifth and Sixth Amendments to the Constitution of the United. States, and section 2, art. 2, of the Constitution of Missouri; (h) it is an attempt to evade the guaranties of section 12, art. 2, of the Constitution of Missouri, in that relator is being prosecuted as for a crime by a bill in equity which can only be done by indictment or information; (i) it is violative of section 15, art. 2, of the Constitution of Missouri, in that it seeks to give a retrospective operation to the prohibition statute; (j) the proceeding seeks to operate under the prohibitive statute with regard to injunction as though it were a complete Code, when the injunctive provision under said statute is simply a part of the general Code pertaining to injunction; and (k) the place sought to be enjoined is not described.

1. Relator's petition alleges certain grounds for the issuance of the preliminary rules which have been set out. The petition for the writ must allege every fact requisite for its issuance. 32 Cyc. 625. The issues made upon the petition and the respondent's return cannot be broadened, nor can additional issues be brought into the case by the relator's return. We will therefore confine ourselves to the issues made by the petition and the return. We may say, however, that as early as the year 1847 this court held that the sale of intoxicating liquor is by law illegal, and not a privilege of a citizen of this or any other state; there is no "provision in our Constitution which would prevent the Legislature from prohibiting dram selling entirely; nor have the Legislature been prevented from placing such restrictions upon this business as they may think fit." Austin v. State, 10 Mo. 591, 593.

"It is fundamental that no one has a natural right to sell intoxicating liquor, because the tendency of its use is to deprave public morals, and to do so without a license from proper authority is unlawful." State v. Seebold, 192 Mo. 720, 727, 91 S. W. 491, 492, and cases cited.

2. There is no merit in the contention that the petition for injunction does not locate or identify any alleged grocery store, or allege that violations of the liquor law are being committed at any grocery store, etc., located or identified. The sufficiency of the pleadings, and whether the order made is too broad, are questions which should, in the first instance, be addressed to the circuit court, and are matters for correction there upon proper application. State ex rel. v. Lamb, 237 Mo. 437, foot 457, 141 S. W. 665.

In State ex rel. v. Tracy, 237 Mo. 109, loc. cit. 121, 140 S. W. 888, 891 (37 L. R. A. [N. S.] 448), we said:

"It is contended by relator that the information fails to state a cause of action, and therefore that the court is without jurisdiction, and the writ should be issued for that reason, especially in view of the number of informations pending and about to be filed. This position is clearly untenable and no authority is cited in its support. If the lower court has jurisdiction of the class of cases to which the said prosecutions belong, then there can be no doubt of its jurisdiction to determine the sufficiency of the information, leaving the losing party the right to have such judgment reviewed on appeal. It stands admitted in this record that the police court has exclusive jurisdiction of all cases for the violation of city ordinances and that the prosecutions complained of are for the alleged violations of said ordinances. It follows that said court must have the right to determine whether the informations coming before it charge or fail to charge a violation of said ordinances, and the writ of prohibition `cannot be rightly employed to compel a judicial officer, having full jurisdiction over the parties and a cause, to steer his official course by the judgment of some other judge, or to substitute the opinion of another court for his own in dealing with the topics committed by the law to his decision."

3. The general rule is that an application for a writ of prohibition will not be considered unless a plea to the jurisdiction has been filed and overruled in the lower court, or the inferior court has been asked in some form, without avail, to refrain from further proceeding or, to dismiss the same. 32 Cyc. 624. This was not done in this case. An exception to this rule is recognized where a want or excess of jurisdiction is apparent on the face of the record. State v. Dearing 184 Mo. 647, 84 S. W. 21. From an examination of the record, it will be seen that this case falls within the general rule.

4. The injunction was sought under the statute regulating the use or possession of intoxicating Liquors and defining a nuisance.

"Any room, house, * * * structure or place of any kind where intoxicating liquor is sold, manufactured, kept for sale or bartered in violation of this article * * * is hereby declared to he a public and common nuisance." Section 6591a, Laws 1921, p. 414.

Section 6094b authorizes the Attorney General, prosecuting attorney, or any prohibition enforcement officer to bring an action in the name of the state to enjoin such nuisance. Such action may be brought...

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