The State ex rel. Thrash v. Lamb

• Decision Date: 27 November 1911
• Citation: 141 S.W. 665,237 Mo. 437
• Parties: THE STATE ex rel. W. A. THRASH et al. v. FRED LAMB, Judge
• Court: Missouri Supreme Court

141 S.W. 665

237 Mo. 437

THE STATE ex rel. W. A. THRASH et al. v. FRED LAMB, Judge

Supreme Court of Missouri

November 27, 1911

Writ denied.

John D Taylor for relator.

(1) "Prohibition is an extraordinary remedy and will not lie where the party claiming it has adequate remedy by ordinary means, and the ordinary means that will defeat the application for this writ must be sufficient to afford the relief the case demands." State ex rel. v Aloe, 152 Mo. 483; State ex rel. v. Eby, 170 Mo. 497; State ex rel. v. Denton, 128 Mo.App. 314. (2) The matters complained of in the petition for the injunction are immoral or criminal acts, and injunction is not a proper remedy for the suppression of acts merely immoral or criminal. State ex rel. v. Uhrig, 14 Mo.App. 413; State ex rel. v. Schweickhardt, 109 Mo 496; State ex rel. v. Canty, 207 Mo. 456; (3) The matters complained of in the petition for injunction is that relators are selling intoxicating liquors in violation of the Local Option Law. The Criminal Code of Missouri, and Sec 7246, R. S. 1909, furnish an adequate remedy for the suppression of the matters complained of. A court of equity will not interfere where there is an adequate remedy at law for the suppression of the matters complained of. State v. Crawford, 28 Kan. 726; State v. Vaughn, 81 Ark. 117; State v. O'Leary, 155 Ind. 526. (4) Injunction should not be granted on ex parte application, thereby destroying plaintiff's business and resulting in a loss of the property without opportunity for the persons enjoined to be heard. 1 Spelling Ext. Legal Rem. (2 Ed.), art. 381; 6 Am. & Eng. Ency. Law (2 Ed.), 347; Scheurich v. Light Company, 109 Mo.App. 430. (5) A restaurant business is not a nuisance per se, and it is wholly within the province of a jury to determine what constitutes a nuisance; and until some complaint has been made of some special injury, or until the State has indicted, tried and convicted persons sought to be enjoined for maintaining a nuisance, and until it has been clearly demonstrated that there is no adequate remedy at law for the suppression of grave immoral and illegal acts which have become or may become especially injurious to the public or to the rights of person or property of some individual, should a court of equity invade the field of criminal law. 1 Spelling Ext. Legal Rem. (2 Ed.), art. 356; State v. Crawford, 28 Kan. 726; State v. O'Leary, 52 L.R.A. 299. (6) The granting of the interlocutory injunction was a violation of relators' rights guaranteed them under Secs. 4 and 30, art. 2, Constitution of Missouri. (7) The granting of an injunction as prayed for in the petition filed is in violation of Secs. 12 and 28, art. 2, Constitution of Missouri.

Roy W. Rucker, Forrest G. Ferris and Wm. H. Wallace for respondent.

(1) A house where persons are accustomed to assemble, and acts committed or practices indulged in which are injurious to the peace or the health or the morals of the people, is a public nuisance. Such a place becomes a nuisance of the most aggravated type when the inevitable result is to injure the peace, health and morals all combined, as is admitted by the pleadings in the case at bar. State v. Canty, 207 Mo. 439; Mugler v. Kansas, 123 U.S. 623; Kansas v. Ziebold, 123 U.S. 637; State v. Ingram, 118 Mo.App. 327. (2) The maintenance of an unlicensed tippling house, to the annoyance or injury of any portion of the inhabitants of the State, is a nuisance in violation of Sec. 4800, R. S. 1909, relating to nuisances. State v. Ingram, 118 Mo.App. 323. (3) By authorities cited in point one, supra, to conduct without license a place of business whose tendency is to deprave public morals, is to maintain a nuisance. The following authorities hold that the use of intoxicating liquors tends to deprave public morals. Austin v. State, 10 Mo. 593; State v. Seebold, 192 Mo. 727; State ex rel. v. Hill, 84 Mo.App. 18; State ex rel. v. Hudson, 78 Mo. 302; State v. Bixman, 162 Mo. 1; Black on Intoxicating Liquors, sec. 24; opinion of Chief Justice Tawney in License Cases, 5 Howard, 577; Opinion of Mr. Justice McLean, same volume, pages 588, 589; Opinion of Mr. Justice Woodbury, p. 628, same volume; Opinion of Mr. Justice Grier, pp. 631, 632, same volume; Mugler v. Kansas, 123 U.S. 658; Cooley on Const. Law (4 Ed.), 727. (4) Our statute on the subject does not undertake to cover all cases of public nuisances, and as to those not provided for by statute, the common law remains in force. State v. Boll, 59 Mo. 321; State v. Ingram, 118 Mo.App. 327. (5) If the case of State v. Ingram, 118 Mo. App., declaring specifically that an "unlicensed tippling house maintained to the annoyance or injury of any portion of the inhabitants of this State" is a nuisance, under our statute, is overruled by this court, then we submit that the petition for the injunction in the case at bar abundantly charges also a disorderly house which is a nuisance at common law if not by statute in Missouri. State ex rel. v. Dykeman, 153 Mo.App. 416; State ex rel. v. Canty, 207 Mo. 454; Cheek v. Com., 79 Ky. 359; 1 Wood on Nuisances (3 Ed.), secs. 37, 38. (6) We have in the case at bar a nuisance maintained by outlaws. State v. Seebold, 192 Mo. 727; State v. Ingram, 118 Mo.App. 327; Austin v. State, 10 Mo. 591; State v. Bixman, 162 Mo. 1; Barnett v. Pemiscot County, 111 Mo.App. 693. (7) A court of equity has power and will enjoin the continuance of a public nuisance. State v. Canty, 207 Mo. 439; Mugler v. Kansas, 123 U.S. 672. (8) Equity will not refuse to lend its aid, although the nuisance sought to be enjoined is also a crime. And in the case at bar it will not deny its relief because the sale of liquor without license is a criminal offense, punishable under our statute. State v. Canty, 207 Mo. 439; Mugler v. Kansas, 123 U.S. 623; Kansas v. Ziebold, 123 U.S. 654; People v. St. Louis, 48 Am. Dec. (Ills.) 340; 2 Story's Eq., secs. 921, 922; Story's Equity Jurisprudence (13 Ed.), secs. 921, 923, 924. (9) Relators' contention that their property rights are being invaded is untenable. Mugler v. Kansas, 123 U.S. 623. (10) No bond is required of the State in a case like this. State ex rel. v. Railroad, 221 Mo. 227.

FERRISS, J. Woodson, J., concurring and dissenting.

OPINION

In Banc

Prohibition.

FERRISS J. --

This is an original proceeding by petition for a writ of prohibition against the respondent, judge of the 12th Judicial Circuit, prohibiting him from proceeding further in the exercise of jurisdiction in the case of The State at the relation of Roy W. Rucker, prosecuting attorney of Chariton county, against the relators.

It appears from the petition filed by relators that they were for some time prior to July 3, 1911, owning and operating a lunch stand and soft drink establishment in the city of Keytesville, Chariton county, under a license from that city; that on said third day of July, Roy W. Rucker, prosecuting attorney, presented the following petition to the respondent circuit judge:

State of Missouri ex rel. Roy W. Rucker, Prosecuting Attorney of Chariton County, Missouri, Plaintiff, v. W. P. Thrash Aubrey Thrash and R. P. Carroll, defendants.

Comes now the above named plaintiff, by Roy W. Rucker, prosecuting attorney, in behalf of the State of Missouri, and states:

That on the 24th day of April, 1908, the act of the Legislature of the State of Missouri, approved April 5, 1887, now Article 3 of the Revised Statutes, 1909, of said State, commonly known as the Local Option Law, was adopted in said county of Chariton, and that said Local Option Law was in full force and effect in said county at all times and dates hereinafter mentioned.

That the defendants, W. P. Thrash, Aubrey Thrash and R. P. Carroll, on a date to this plaintiff unknown, moved into and occupied the first floor of the premises known as the Hansman and Schell building, located in lot one, on Bridge street, in the city of Keytesville, Chariton county, Missouri, with the avowed and pretended intention of conducting a restaurant and lunch room therein.

Plaintiff states that defendants opened up said pretended restaurant and lunch room as a mere subterfuge, and that they have, in fact, for themselves and by their officers, agents, servants and employees, openly and in violation of the laws of the State of Missouri, and particularly of what is known as the Local Option Law, engaged in storing for and selling and disposing of to the public intoxicating liquors and intoxicating beverage, containing alcohol, on every day of the week, including Sundays from on or about the 1st day of June, 1910, up to the time of the filing of this petition herein, and have since on or about the 1st day of June, 1910, until the present time, engaged in the business of selling intoxicating liquors, to-wit, beer and whiskey and intoxicating beverages containing alcohol, called grape juice and manitou, in said premises, without any legal authority to sell the same.

And plaintiff further states that said intoxicating liquors and intoxicating beverages, containing alcohol, were so, as aforesaid, disposed of and sold by the said defendants, their officers, agents, servants and employees indiscriminately to all persons offering to purchase the same.

Plaintiff states that the illegal sale of intoxicating liquors and intoxicating beverages, containing alcohol, as aforesaid, causes and has caused a large number of idle, lawless, turbulent, dissolute and immoral and dangerous persons, addicted to the use of ardent spirits, to be attracted to and assembled at the defendants' said premises, and that by reason thereof much disorderly conduct, tending to destroy the public morals of the community, and to the prejudice of the good name and general welfare of the people, has been

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