The State ex rel. Orr v. Kearns

• Decision Date: 31 July 1924
• Docket Number: 24023
• Parties: THE STATE ex rel. CAMERON L. ORR, Prosecuting Attorney, v. LEANNAH KEARNS, Alias ANNIE CHAMBERS, Appellant
• Court: Missouri Supreme Court

264 S.W. 775

304 Mo. 685

THE STATE ex rel. CAMERON L. ORR, Prosecuting Attorney, v. LEANNAH KEARNS, Alias ANNIE CHAMBERS, Appellant

No. 24023

Supreme Court of Missouri

July 31, 1924

Appeal from Jackson Circuit Court; Hon Allen C. Southern Judge.

Reversed and remanded (with directions).

J Francis O'Sullivan for appellant.

(1) The action cannot now be maintained because said act is violative of Article III, and of Section 30 of Article II, of the Constitution of Missouri, because the penalty provided by the act is wholly within the discretion of the courts, and thereby a legislative power is conferred on the courts. (a) The portion of the act authorizing closing of a building or place for a reasonable time is penal. Laws 1921, pp. 523-524; State v. Warner, 197 Mo. 650; United States v Eilert Brewing & B. Co., 279 F. 659; 30 Cyc. 1329. (b) Conferring on the court the power to assess a penalty not fixed within certain limits is a delegation of legislative functions to the courts; is violative of Article III of the Constitution, and the imposition of any penalty thereunder is violative of Section 30, Article II, of the Constitution. Young v. Railroad, 227 Mo. 317; Ex parte Dusenbury, 97 Mo. 504, 508; Morgan v. Ward, 224 F. 698; In re O'Shea, 11 Cal.App. 568; Sheldon v. Hoyne, 261 Ill. 222; Arnett v. Cardwell, 135 Ky. 14; Stimpson v. Pond, 2 Curtis, 502; In re Bonner, 151 U.S. 259. (2) The court erred in admitting evidence of acts and conditions and reputation of premises, existing prior to the date the act became effective, because by the admission and consideration of such testimony the court gave retrospective and retroactive effect to the act, and permitted same to become ex post facto in operation, in violation of Sec. 15, Art. 10, Constitution of Missouri, and clause three, Sec. 9, Art. 1, Constitution of the United States. Jamison v. Zausch, 227 Mo. 406; Bartlett v. Ball, 142 Mo. 28; Reed v. Swan, 133 Mo. 100; State ex rel. v. Wofford, 121 Mo. 61; City of St. Louis v. Clements, 52 Mo. 133; Ins. Co. v. Flynn, 38 Mo. 438; Fowler v. City of St. Joseph, 37 Mo. 228; Cunningham v. Gray, 20 Mo. 170; Deland v. Platte County, 54 F. 832; Cummings v. Missouri, 4 Wall. (U.S.) 277, 324; Kring v. Missouri, 107 U.S. 221; Burgess v. Salmon, 97 U.S. 381; Buckholts v. Buckholts, 24 Ga. 238; Scott v. Scott, 6 Ohio 534; Given v. Marr, 27 Me. 212; Sheburne v. Sheburne, 6 Me. 210; Buck v. Dowley, 82 Mass. 555; Atlaquin v. Fish, 46 Mass. 140; Manning v. Inhabitants Fifth Parish, 23 Mass. 6; Greenlaw v. Greenlaw, 12 N.H. 200. (3) The demurrer to the petition should have been sustained because on its face, it stated no cause of action and disclosed a lack of jurisdiction in equity. (a) At no place in the petition was there alleged that any irreparable damage to property rights would ensue if the alleged nuisance therein enjoined was abated, and without such allegation, courts of equity had no jurisdiction. State ex rel. v. Woodfolk, 269 Mo. 389; Herelson v. Taylor, 281 Mo. 383; Magel v. Society, 203 Mo.App. 335. (b) The petition merely alleges that there was no adequate remedy at law, and when attacked by a motion to make more definite and certain, this conclusion should not have been permitted, as the facts disclosed upon the face of the petition showed there was an adequate remedy at law, by a prosecution under the criminal statute. Attorney-General v. Uhrig, 14 Mo.App. 413; Schloss v. Dattilo, 197 Mo.App. 656; Rice v. Jefferson, 50 Mo.App. 464; State v. Ehrlick, 65 W.Va. 700; State v. Vaughan, 81 Ark. 117. (4) The act under which the injunction is sought is unconstitutional and void for the following reasons, all of which are set out in the pleadings and are contained in the declarations of law asked by appellant, and refused by the court over the exceptions of appellant: (a) The act is violative of the Fifth Amendment of the Federal Constitution and also of Section 23 of Article 2 of the Constitution of Missouri, in that it subjects appellant here and others in like circumstances to being twice tried and convicted for the same offense, once for the violation of the criminal statute and a second time for the violation of the civil decree, enjoining the commission of the same offense; and further that the act provides a means of requiring defendants in such actions to testify against themselves in criminal actions, in that plaintiff in the injunction suit may take defendant's testimony by deposition and use the same against a defendant in the criminal case involving the same subject-matter. Heddon v. Hand, 5 A. L. R. 1463; State v. Anderson, 40 N. J. L. 224; State v. Rodgers, 90 N. J. L. 60; Carleton v. Rugg, 149 Mass. 550, 5 L. R. A. 199. (b) The act is violative of the Fourteenth Amendment of the Federal Constitution in that the rights, privileges and immunities guaranteed under said amendment are taken from appellant without due process of law, in that she could be punished by imprisonment for a violation of an injunction, without any charge being made against her and without her being tried by jury.

Jesse W. Barrett, Attorney-General, and Allen May, Special Assistant Attorney-General, for respondent.

(1) The statute is a legitimate exercise of the police power, as recognized heretofore under other circumstances. Union Cemetery Assn. v. Kansas City, 252 Mo. 466, 502; State v. Tower, 185 Mo. 79; State v. Railroad, 239 Mo. 196; St. Louis Gunning Adv. Co. v. St. Louis, 235 Mo. 99; State v. Bixman, 162 Mo. 1; State v. Layton, 160 Mo. 474. (2) The Legislature may legitimately declare that to be a nuisance which is not such per se or at common law. State v. Tower, 185 Mo. 79, 91; State ex rel. Rhodes v. Saunders, 66 N.H. 39, 18 L. R. A. 646; Marvel v. State ex rel. Morrow, 127 Ark. 595, 5 A. L. R. 1458; Littleton v. Fritz, 65 Iowa 488; 54 Am. Rep. 19; State v. Marshall, 100 Miss. 626; State ex rel. v. Gilbert, 126 Minn. 95. (3) Courts of equity have always had jurisdiction to abate nuisances. State ex rel. v. Canty, 207 Mo. 439, 456; State ex rel. v. Lamb, 237 Mo. 437, 456; Ex parte Laymaster, 260 Mo. 613, 618; Mugler v. Kansas, 123 U.S. 623, 31 L.Ed. 205; Grossman v. United States ex rel. Brundage, 280 F. 683. (4) The Legislature, therefore, may lawfully extend that jurisdiction to nuisances created by a statute, specifically bawdyhouses, disorderly houses and houses of ill fame. Williams v. State, 150 Ga. 480; State ex rel. Wilcox v. Ryder, 126 Minn. 95; Ridge v. State, 206 Ala. 349; People ex rel. Bradford v. Barbiere, 33 Cal.App. 770; People ex rel. Thrasher v. Smith, 275 Ill. 256; Gregg v. People, 65 Col. 390; Chase v. Revere House, 232 Mass. 88; State ex rel. English v. Fanning, 97 Neb. 224; King v. Com. ex rel. Smith, 194 Ky. 143; Wind v. State, 102 Ohio St. 62; State ex rel. Ford v. Young, 54 Mont. 401; State ex rel. Kern v. Jerome, 80 Wash. 261. (5) Statutes of this character do not violate constitutional provisions by providing for punishment of crimes by civil action. The action is addressed, not to the wrongdoer, but the property used in the wrong doing. Mugler v. Kansas, 123 U.S. 623, 31 L.Ed. 205, 214; State v. Marshall, 100 Miss. 626; Littleton v. Fritz, 65 Iowa 488; Fulton v. State, 171 Ala. 572; Chase v. Revere House, 232 Mass. 88; Gregg v. People, 65 Cok. 390; Williams v. State, 150 Ga. 480. (6) Such statutes do not violate constitutional provisions giving citizens immunity from furnishing evidence against themselves. Such immunity can be claimed at any time in any proceeding. State v. Blackburn, 273 Mo. 469, 482; State v. Young, 119 Mo. 495, 520; State v. Naughton, 221 Mo. 398; Ex parte Gauss, 223 Mo. 277, 135 A. S. R. 517; Ridge v. State, 206 Ala. 349. (7) Statutes of this character which give the defendant a judicial hearing in a court of equity do not in any regard transgress the due process clauses of either the State or Federal Constitution. Mugler v. Kansas, 123 U.S. 623, 31 L.Ed. 205; Fulton v. State, 171 Ala. 572; State ex rel. Atty.-Gen. v. Stoughton Club, 163 Wis. 362; Ridge v. State, 206 Ala. 349; Williams v. State, 150 Ga. 480. (8) The case being one of equitable jurisdiction, a class of cases in which the right of trial by jury has never obtained, no constitutional right of defendant was denied in failing to accord her a jury trial. State ex rel. v. Canty, 207 Mo. 439, 461; Mugler v. Kansas, 123 U.S. 623, 673, 31 L.Ed. 205, 214; City of St. Louis v. Stern, 3 Mo.App. 48; Chase v. Revere House, 232 Mass. 88; Williams v. State, 150 Ga. 480. (9) No allegation of irreparable damage to property is required or essential to the sufficiency of a petition for the abatement of a public nuisance. Irreparable damage to public health, morals and safety is of as much concern to the courts as like damage to property, and a sufficient basis for equity jurisdiction. State ex rel. v. Canty, 207 Mo. 439, 459; Littleton v. Fritz, 65 Iowa 488, 54 Am. Rep. 19. (10) Evidence of the general reputation of an establishment and of its inmates is competent upon a proceeding to establish the existence of a bawdyhouse; this exception to the hearsay rule being a rule of necessity from the nature of the proceeding. Clementine v. State, 14 Mo. 112.

OPINION

Lindsay, C.

This proceeding was instituted on June 27, 1921, by the Prosecuting Attorney of Jackson County, in the circuit court of that county, under the provisions of the act approved March 28, 1921. [Laws 1921, p. 523]. An injunction was granted perpetually restraining the defendant from maintaining a nuisance by conducting or keeping a bawdyhouse or house of assignation, upon certain premises owned by her situated on West 3rd Street in Kansas City, and also directing the closing of the premises and keeping them closed from use for any purpose, for a period of two months; and from the judgment, ...