State v. Jones

• Decision Date: 01 March 1919
• Docket Number: No. 20988.,20988.
• Citation: 209 S.W. 876,277 Mo. 71
• Parties: STATE ex rel. KLEINSCHMIDT, Pros. Atty., v. JONES.
• Court: Missouri Supreme Court

209 S.W. 876

277 Mo. 71

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

No. 20988.

Supreme Court of Missouri, Division No. 1.

March 1, 1919.

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

Suit for injunction by the state of Missouri, at the relation of Robert E. Kleinschmidt Prosecuting Attorney within and for Jefferson County, against W. A. Jones. Judgment for plaintiff, affirmed by Court of Appeals (202 S. W. 606) upon a division of opinion, and the case was certified to the Supreme Court. Reversed and remanded, with directions.

Clyde Williams, of Hillsboro, and E. B. Irwin, of De Soto, for appellant.

Robert E. Kleinschmidt and Albert Miller, both of Hillsboro, for respondent.

GRAVES, J.

Upon a division of opinion in the St. Louis Court of Appeals, this case was duly certified to this court in pursuance of constitutional provisions. By a sufficient petition, the prosecuting attorney of Jefferson county sought to enjoin the defendant from further running and maintaining a wholesale liquor house in a little place called Melzo in his county. Defendant was a licensed wholesale dealer in liquors under Acts 1917, p. 318. The temporary injunction upon trial and hearing was made permanent, and defendant appealed to the St. Louis Court of Appeals, from whence the case comes here as above indicated.

Melzo seems to be a one man's place. It is located between the city of De Soto, in Jefferson county, and Bonne Terre, in St. Francois county. Its location is on a public road about midway between the two towns. Jefferson county is "wet" and St. Francois county is "dry," and Melzo is not far from the county line. Melzo seems to be made up of a store and post office, both run by defendant, Jones, and this liquor house likewise owned and run by Jones. The evidence would indicate that there was another wholesale house somewhere within the neighborhood, but not at Melzo.

The petition in this case states facts sufficient to show that the maintenance of this wholesale house constituted a public nuisance, although there are many allegations therein which only go to indicate the violation of criminal laws. Measured by the usual tests, the petition sufficiently charges the maintenance of a public nuisance.

The trouble with this case is the lack of evidence. There is evidence which shows that defendant sold liquor in less quantities than by the law and his license he was permitted to do. There is some slight evidence that there was at the times indicated by a witness or two some gambling of a minor nature. There is a little evidence of some loud talk and swearing in the place upon an occasion or two. Generally speaking the evidence shows Jones to be a reputable man, and no disorder in or about this liquor house. This comes from plaintiff's witness, who visited the post office, about 100 yards from the liquor house.

The great bulk of the evidence in this record is to the effect that along the public road from Melzo to Bonne Terre, men and women passed by in automobiles, apparently in their "cups." There was a church and a schoolhouse something over a mile—I believe a mile and a quarter—from Melzo, on the road to Bonne Terre, and these were disturbed by these passing travelers. In instances beer bottles were thrown over into the yards, and apparently drunken remarks made to men and women near the public roadside. None of this, however, was at or near defendant's place of business. All this was on the public road a mile or more from the house which the state asks to be condemned as a public nuisance. The details of this evidence as to the conduct of the travelers upon the public road, far from the defendant's place of business, noisome as it may be, is not a matter of moment under the vital portions of the petition in this case. The petition is loosely drawn, and contains many valueless statements of fact, but does contain a sufficient statement of facts as to the conduct of defendant's place to make such place a public nuisance. These material allegations are not proven by the witnesses. This sufficiently outlines the case.

I. That a court of equity can prevent the maintenance of a public nuisance is thoroughly established in this state. State ex rel. v. Canty, 207 Mo. 439, 105 S. W. 1078, 15 L. R. A. (N. S.) 747, 123 Am. St. Rep. 393, 13 Ann. Cas. 787; State ex rel. v. Lamb, 237 Mo. 437, 141 S. W. 665. This is true, although some of the acts going toward the creation and maintenance of the public nuisance may be acts in violation of the Criminal Code, and themselves punishable under the criminal law. My personal view of the law was thus expressed in the separate concurring opinion in Ex parte Laymaster, 260 Mo. loc. cit. 621, 168 S. W. 756, Ann. Cas. 1916C, 452:

"I adhere strictly to the rule announced in State ex rel. v. Canty, 207 Mo. 439 [105 S. W. 1078, 15 L. R. A. (N. S.) 747, 123 Am. St. Rep. 393, 13 Ann. Cas. 787], and State ex rel. v. Lamb, 237 Mo. 437 . I do not understand those cases to say that a court of equity will enjoin a crime, but they do announce the doctrine that when a given state of facts shows a public nuisance, then a court of equity will...