The State ex rel. Brncic v. Huck
| Decision Date | 20 December 1922 |
| Citation | 246 S.W. 303,296 Mo. 374 |
| Parties | THE STATE ex rel. FRANK BRNCIC v. PETER HUCK, Judge of Circuit Court, et al |
| Court | Missouri Supreme Court |
Preliminary rule discharged.
Chas G. Revelle and B. H. Boyer for relator.
(1) Under the law as it existed, at least prior to the enactment of the Prohibition Statute, the commission of offenses against the liquor laws could not be enjoined by a court of equity. Ex parte Laymaster, 260 Mo. 613; State ex rel. v Leisure Hours Social & Pastime Club, 187 S.W. 819. (2) If the Prohibition Statute authorizing the abatement of places where liquor is manufactured or sold is constitutional, the same should be strictly construed and the constitutional rights and safeguards carefully preserved because it constitutes a radical departure from the law as it has heretofore existed, and because it substitutes for the constitutional jury trial an extraordinary and dangerous procedure. (3) The circuit judge acted in excess of his jurisdiction in issuing the injunction in question, because neither the petition nor injunctive order designate, locate or identify any particular structure or premises against which the injunction can operate. 22 Cyc. 925; Secs. 6594a, 6594b, 6595, Laws 1921, pp. 414 to 416. (4) The injunctive order is likewise void because it enjoins relator from operating and conducting his pool room, dry bar, soft-drink counter and store, when the statute only authorizes an injunction against the unlawful manufacture, sale and storage of intoxicating liquor in such places of business. Sec. 6594b, Laws 1921, p. 415. (5) It is void for the further reason that the petition does not allege that there was pending at the time any civil or criminal action against relator. Sec. 6594a, Laws 1921, p. 414; State ex rel. v. Dearing, 253 Mo. 604. (6) It is also void because no notice or other process was served upon relator before the issuance thereof. Secs. 6594a, 6594b, Laws 1921, pp. 414-415; Tuttle v. Lowe, 176 Mo. 158; Weeks v. United States, 232 U.S. 383, 399. (7) The injunction is not in reality a temporary nijunction but a permanent one, and the court was without jurisdiction to issue the same without process on relator and without according him his day in court. Sections ?bove; State ex rel. v. Huck, 203 S.W. 485. (8) Under the circumstances disclosed by this record prohibition is not only the proper but the only remedy available to relator. Sec. 1967, R.S. 1919; State ex rel. v. Williams, 221 Mo. 227; State ex rel. v. Buckner, 203 S.W. 242; State ex rel. v. Riley, 203 Mo. 175; State ex rel. v. Fort, 210 Mo. 512; State ex rel. v. Duncan, 195 Mo.App. 541.
Jesse W. Barrett, Attorney-General, Marshall Campbell, Special Assistant Attorney-General, and Henry Davis, Assistant Attorney-General, for respondents.
(1) The abatement of a nuisance by injunctive process does not violate any of the provisions of the Constitution of the State of Missouri or of the Constitution of the United States. State ex rel. v. Canty, 207 Mo. 439, 454; State ex rel. v. Lamb, 237 Mo. 437, 456. (2) The Legislature has the power to declare that to be a nuisance which was not such at common law. State v. Tower, 185 Mo. 79; State ex rel. Tibbels v. Iden, 221 S.W. 781. (3) The petition for the writ of injunction sufficiently described the property and the building at which the alleged nuisance was maintained. State ex rel. v. Canty, 207 Mo. 439, 443. (4) The writ granted by the respondent judge is a temporary one, as it specifically states. Sec. 6594b, Laws 1921, p. 415; State ex rel. McMahon v. Huck, 203 S.W. 485. (5) It is not a condition precedent to the issuance of a writ of injunction that there shall be pending a civil or criminal action against the defendant. Sec. 6594b, Laws 1921, p. 415. (6) Temporary writs of injunction and restraining orders may be granted without notice to the defendant. Secs. 1952, 1967, R.S. 1919; Tuttle v. Blow, 176 Mo. 158, 171; State ex rel. v. Woodside, 254 Mo. 580, 591; State ex rel. v. McQuillin, 256 Mo. 693, 707; State ex rel. v. Dearing, 236 S.W. 629. (7) The petition for the writ of injunction was properly verified by the prosecuting attorney. The Osprey v. Jenkins, 9 Mo. 643; State v. Lamb, 234 Mo. 437, 445. (8) Questions as to the legal sufficiency of a petition for an injunction and whether the order made is too broad should, in the first instance, be addressed to the circuit court before applying to the Supreme Court for a writ of prohibition. State ex rel. v. Lamb, 237 Mo. 437, 457; State ex rel. v. McQuillin, 256 Mo. 693, 704; State ex rel. v. McQuillin, 260 Mo. 164, 176; State ex rel. v. Aloe, 152 Mo. 466, 484. (9) Where a court has jurisdiction and is proceeding as is prescribed by law, errors in construing pleadings are reviewable only by appeal or writ of error, and prohibition will not lie. State ex rel. Harrington v. Pratt, 183 Mo.App. 209; State ex rel. Fenn v. McQuillin, 256 Mo. 693, 704; State ex rel. v. Riley, 127 Mo.App. 469, 476; State ex rel. v. Tracy, 237 Mo. 116. (10) The writ of injunction is not broader than was authorized. State ex rel. v. Lamb, 237 Mo. 437, 445.
OPINION
In Banc.
Prohibition.
On the application of relator we issued a preliminary rule prohibiting the respondent Huck, Judge of the 27th Judicial Circuit, the Prosecuting Attorney and the 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 situate 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 whiskey, wine, beer and other alcoholic liquors, containing in excess of onehalf of one 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, employees, 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 one per centum 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 respondents' 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 Article II 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 II, 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 12, Article II, of the Constitution of Missouri; (h) it is an attempt to evade the guarantees of...
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