State v. Jones

• Decision Date: 02 April 1918
• Docket Number: No. 16019.,16019.
• Citation: 202 S.W. 606
• Parties: STATE ex rel. KLEINSCHMIDT, Pros. Atty., v. JONES.
• Court: Missouri Court of Appeals

202 S.W. 606

STATE ex rel. KLEINSCHMIDT, Pros. Atty., v. JONES.

No. 16019.

St. Louis Court of Appeals. Missouri.

April 2, 1918.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

"Not to be officially published."

Suit for injunction by the State, on relation of Robert D. Kleinschmidt, Prosecuting Attorney for Jefferson County, against W. A. Jones. Judgment for relator, and defendant appeals. Affirmed, and cause certified to the Supreme Court.

Clyde Williams, of Hillsboro, and H. B. Irwin, of De Soto, for appellant. Robert E. Kleinschmidt, Pros. Atty., and Albert Miller, both of Hillsboro, for respondent.

BECKER, J.

This is an action brought by the prosecuting attorney of Jefferson county in his official capacity to perpetually restrain and enjoin the defendant from conducting a wholesale liquor house and from selling intoxicating liquors therefrom at Melzo, in Jefferson county, Mo., on the ground that defendant's business as conducted is a public nuisance. At the close of the hearing of the case on the merits, the court entered a judgment making the temporary injunction theretofore issued permanent and perpetual. After an unavailing motion for new trial and in arrest of judgment, the defendant brings this appeal.

It appears that the defendant on the 3d day of July, 1917, engaged in the business of selling intoxicating liquors at Melzo, Mo., by virtue of a wholesale liquor dealer's license issued by the state of Missouri under the provisions of an act to provide for the licensing and taxing of wholesale liquor dealers and wholesale liquor dealing agents in the state of Missouri (Laws of Missouri 1917, p. 318).

Defendant's place of business is located on the main traveled road between the cities of De Soto, in Jefferson county, and Bonne Terre, in St. Francois county, about midway betweeen the two cities and just across the line dividing said counties, and there are located within a very short distance of defendant's place of business a church, known as the Primrose Church, and also the Primrose Public !School. Jefferson county is "wet," whilst St. Francois county is "dry," and in the latter county and close to the place of defendant's business is what is known as the famous lead belt of Missouri. The building in which the defendant conducts his business is situated upon about an acre of land leased for the purpose, and having a commons of ten acres surrounding it, on which said commons there is a clump of woods. This acre of land and the said commons of ten acres were used by defendant for the accommodation of defendant's patrons.

The essential part of the cause of action is stated in plaintiff's bill in the following words:

"Said building is used and occupied by the defendant as a pretended wholesale liquor or barrel house, a place where liquors are sold and dispensed, but, in truth and in fact, the defendant has since said date operated a common tippling-house where daily and continuously from the above-mentioned date the defendant, in violation of the criminal law of the state of Missouri, has sold intoxicating liquors, including wine and beer, in less quantities than three gallons, and has been guilty of selling such intoxicants on the first day of the week, commonly called Sunday, and has permitted such intoxicants to be drunk on his said premises without any lawful authority whatever, and without having taken out a license as a dramshop keeper; that the defendant has permitted large numbers of men and women of immoral and vicious habits to gather at his said wholesale liquor or barrel house and to become intoxicated and act indecently, under the influence of intoxicating liquor, at the place of defendant, in violation of the laws of the state of Missouri, and has permitted all kinds of gambling to be carried on at his said premises; that by reason thereof the said wholesale liquor and barrel house is a public nuisance to the people of the state of Missouri that live in that vicinity and travel along the public highways leading to and from said wholesale liquor or barrel house; that the defendant since said date has continuously permitted his place of business to become the resort of idlers, dissolute, immoral, and dangerous persons, who are addicted to the excessive use of intoxicating liquors; that day after day and night after night since the date aforesaid the wholesale liquor or barrel house has been a scene of drunken carousals, disorderly and turbulent conduct; that by reason thereof the said wholesale liquor or barrel house is a public nuisance to the people of the state of Missouri who live in the vicinity of the same; that said idlers, dissolute, immoral, and dangerous persons (whose names are unknown to this informant), on leaving said premises, and while going along the public roads, under the influence of intoxicating liquors so sold to them at said wholesale liquor or barrel house, make loud and hideous noises, and use profane and indecent language, and frequently fights, brawls, and near-riots occur around said place aforesaid; that the frequenters of said wholesale liquor or barrel house, when leaving the same in a drunken condition, ride and drive along the public highways at such a careless and reckless rate of speed that it is dangerous for the good citizens of the state to travel on said highways, and especially women and children; that the acts and conduct of those leaving said barrel house under the influence of intoxicating liquors aforesaid is such that they often shock the morals of the good citizens of the community, that they frighten especially the self-respecting women and children in the vicinity and adjacent to the aforesaid wholesale liquor or barrel house, and render their condition perilous while on said public highways.

"Plaintiff further states that said wholesale liquor or barrel house is located within a very short distance of a church known as Primrose Church, a place set apart for the worship of God, and that said church is located on the public highway known as the De Soto and Bonne Terre road; that those who frequent said barrel house, on leaving the same in the drunken condition aforesaid, by their base acts and conduct disturb the people worshipping at said church.

"Plaintiff further states that said wholesale liquor or barrel house is located within a very short distance of a public school where the children of the school district are required by law to congregate and attend for the purpose of being educated, and that the conduct of those who come from said barrel house in a drunken condition is such that it shocks the morals of the good citizens and disturbs the pupils in attending said school, and makes it dangerous for them to travel along the public highways leading to said school."

As practically the sole point raised on appeal is that every offense mentioned in relator's petition for an injunction is an ordinary crime and not a public nuisance, and that therefore a court of equity is without jurisdiction to afford relief, we will set out such additional facts as are necessary in the body of the opinion itself.

"A public or common nuisance is an offense against the public order and economy of the state, by unlawfully doing any act or by omitting to perform any duty...