State Ex Rel. Brncic v. Huck

*378 HIGBEE, J. 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, *379 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 one-half 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 *380 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 aré being committed at any grocery store, etc. 2. No notice was given to relator of the presenta1 tion 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 *381 of Section 12, Article II, of the Constitution of Missouri in that relator is being prosecuted as for a crime by a bill in equity, which can only be done by indictment or information; (i) it is violative of Section 15, Article'll, of the Constitution of Missouri in that it seeks to give a retrospective operation to the prohibition statute; (j) the proceeding seeks to operate under the prohibitive statute with regard to injunction as though it were a complete code, when the injunctive provision under said statute is simply a part of the general code pertaining to injunction, and (k) the place sought to be enjoined is not described. I. Relator’s petition alleges certain grounds for the issuance of the preliminary rule which have been set out. The petition for the writ must allege every fact requisite for its issuance. [32 Cyc. 625.] The issues made upon the petition and the respondent’s return cannot he broadened, nor can additional issues be brought into the case by the relator’s reply. We will, therefore, confine ourselves to the .issues made by petition and the return. We may say, however, that as early as the year 1847 this court held that the sale of intoxicating liquor is by law illegal and not ‘a privilege of a citizen of this or any other State; there is no “provision in our Constitution which would prevent the Legislature from prohibiting dram-selling entirely; nor have the Legislature been prevented from placing such restrictions upon this business as they may think fit.” [Austin v. State, 10 Mo. 591, 593.] “It is fundamental that no one has a natural right to sell intoxicating liquor, because the tendency of its use is to deprave public morals, and to do so without a license from proper authority is unlawful.” [State v. Seebold, 192 Mo. 720, 727, and cases cited.] *382 *381 II. There is no merit in the contention that the petition for injunction does not locate or identify any alleged *382 grocery store, or allege that violations of the liquor law are being committed at any grocery store, etc., located or identified. The sufficiency of the pleadings and whether the order made is too broad, are questions which should, in the first instance, be addressed to the circuit court and are matters for correction there upon proper application. [State ex rel. v. Lamb, 237 Mo. 437, foot 457.] In State ex rel. v. Tracy, 237 Mo. 109, l. c. 121, we said: . “It is contended by relator that the information fails to state a cause of action and therefore that the court is without jurisdiction and the writ should be issued for that reason, especially in view of the number of informations pending and about'to be filed. This position is clearly untenable and no authority is cited in its support. If the lower court has jurisdiction of the class of cases to which the said prosecutions belong, then there can be no doubt of its jurisdiction to determine the sufficiency of the information, leaving the losing party the right to have such judgment reviewed on appeal. It stands admitted in this record that the police court has exclusive jurisdiction of all cases for the violation of city ordinances and that the prosecutions complained of are for the alleged violations of said ordinances. It follows that said court must have the right to determine whether the informations coming before it charge or fail to charge a violation of said ordinances, and the writ of prohibition ‘cannot be rightly employed to compel a judicial officer, having full jurisdiction over the parties and a cause, to steer his official course by the judgment of some other judge, or to substitute the opinion of another court for his own in dealing with the topics committed by the law to his decision.’ ” *383 *382 III. The general rule is that an application for a writ of prohibition will not be considered unless a plea to the jurisdiction has been filed and overruled in the lower *383 court, or the inferior court has been asked in some form, without avail, to refrain from further proceeding or to dismiss the same. [32 Cyc. 624.] This was not done in this case. An exception to this rule is recognized where a want or excess of jurisdiction is apparent on the face of the record. [State ex rel. v. Dearing, 184 Mo. 647.] From an examination of the record, it will be seen that this case falls within the general rule. IV. The injunction was sought under the statute regulating the use or possession of intoxicating liquors and defining a nuisance. “Any room, house, . . . structure or place of any kind where intoxicating liquor is sold, manufactured, kept for sale or bartered in violation of this article . . . is hereby declared to be a public and common nuisance.” [See. 6594a, Laws 1921, p. 414.] Section 6594b authorizes the Attorney-General, prosecuting attorney or any prohibition enforcement officer to bring an action in the name of the State to enjoin such nuisance. Such action may be brought and tried as an action in equity in any court having jurisdiction. If it is made to appear by affidavit or otherwise, to the satisfaction of the court or judge in vacation, that such nuisance exists, a temporary writ shall forthwith issue restraining the defendant from conducting or maintaining any such nuisance until the conclusion of the trial. No bond shall be required in instituting such proceedings. On finding that the material allegations are true, the court shall order that no liquors shall be manufactured, sold, bartered, stored or kept in any such room, house or building, etc. The action so authorized is an independent action for the purpose of abating the nuisance complained of; it is not an action in aid of or ancillary to another proceeding, either civil or criminal, as contended by learned counsel. The petition was duly verified. The act per *384 emptorily required tie issuance of a temporary injunction restraining the defendant from conducting or maintaining any such nuisance until the conclusion of the-trial. It is not questioned that the Legislature has power to declare that to he a nuisance which is neither such per se nor such at common law. [State v. Tower, 185 Mo. 79; State ex rel. Tibbels v. Iden, 221 S. W. 781.] V. On the motion of the relator for judgment, the facts well pleaded are taken as confessed. We have distinctly held, under substantially similar averments, that a court of equity has authority to issue a temporary injunction without bond to enjoin a public nuisance; that the right of the State to abate such nuisance by injunction proceedings in a court of equity is beyond question and the writ will not be withheld merely because the act or some of them when committed, would be a crime. In State ex rel. Thrash v. Lamb, 237 Mo. 437, l. c. 456, we said: “Relators concede, on this record, for the purposes of this case, that they were conducting a sham restaurant, where, under the guise of a legitimate, licensed business, they were openly selling liquor in violation of law, and they point triumphantly, in oral argument,' to the fact that so far they have escaped conviction for such offense in the various criminal prosecutions heretofore instituted by the State. They concede, further, that their place of business, by reason of the illegal practices therein permitted, has become the resort of idlers and dissolute, immoral and dangerous persons, whose continuous disorderly conduct tends to the injury of the public morals, peace and welfare. Such conduct, as the court found, constituted a continuing public nuisance. The relators, without denying the facts alleged in the bill, or disputing seriously the conclusion that they constitute such nuisance, seek to separate the elements which, to- *385 getter, constitute this nuisance, and insist that the court has no jurisdiction to enjoin either element so segregated. Relators’ propositions are that the court cannot lawfully enjoin (a) the commission of a crime, -i. e., the illegal sale of liquors, or (b) the business of conducting a restaurant. The State is seeking by means of injunction to close this place, not primarily because of the illegal sale of liquor, nor because of the operation of a sham restaurant. These things are pleaded as the facts which underlie the nuisance, namely, a disorderly house. The bill for injunction is bottomed on our ruling in the case of State ex rel. v. Canty, 207 Mo. 439, and seeks to restrain a public nuisance. The fact that this alleged nuisance involves selling liquor in violation of law, an offense that may be prosecuted under the criminal law, will not prevent an injunction against the nuisance. We have ruled many times that injunction will not lie to prevent the commission of a crime. We said in the Canty Cáse, speaking through WoodsoN, J., that ‘this court has uniformly held that a court of equity has no jurisdiction to enjoin the commission of a crime;’ but Judge WoodsoN said further in that case (l. c. 459): ‘ The contention of respondents that a court of equity has no' jurisdiction to abate a public nuisance where the offenders are amenable to the criminal laws of the State, is not tenable.’ And the court, speaking further, through ValliaNt, J., says (l. c. 460): ‘A court of equity will not undertake to enforce the criminal law; therefore it will not enjoin the commission of a threatened act merely because the act.would be a crime, but, on the other hand, neither will it withhold its equitable relief in a case in which, for other reasons, it has jurisdiction, merely because the act when committed would be a crime.’ “There can be no serious contention that this injunction forbids a legitimate lunch business, in face of the record admission that the restaurant is a mere sham and subterfuge for the sale of liquor, but we apprehend that a lunch business, whether genuine or not, operated in *386 connection with, a public nuisance, and as one of its elements, would not so leaven tbe whole as to save it from abatement. If this petition states a case at all, it states a public nuisance, and we think the facts therein alleged justify the discretion exercised by the State’s attorney in bringing’ the suit.” This fits the case as the glove the hand, and disposes adversely of all of the relator’s contentions save that of want of notice. VI. There is no merit in the complaint that the temporary injunction was without notice. The statute does not require notice. Temporary writs of injunction may be granted without notice to the defendant. [Secs. 1952, 1967, R. S. 1919.] In State ex rel. v. Lamb, supra, l. c. 459, we said: “In view of the fact that upon the record here there is no denial of the facts set up in the bill for injunction, we do not see how the relators were injured by reason of the failure to give notice. ’ ’ Jurisdiction to issue the writ is not conditioned upon the giving of a previous notice of an application therefor. This was not an injunction to stay proceedings. [State ex rel. v. Woodside, 254 Mo. 580, 591.] In State ex rel. v. McQuillin, 262 Mo. 256, 269, Lamm, C. J., said: “On prohibition the determinative question here is not one of mere pleading below, where pleadings are amendable (and often need amendment). It rises to the dignity of one of jurisdiction in the strictest sense. In that view of it, in the Schubach-McDonald Case, 179 Mo. l. c. 182, are pertinent observations, viz.: “ ‘The matter, therefore, compresses itself into the question whether or not a basic subject-matter, over which a court of equity has jurisdiction, was presented to the circuit court for adjudication by the injunction suits. That is, whether a matter was presented which •that court has power to deal with, and not whether such *387 a matter was inartificially or defectively presented. In other words, the question is one of jurisdiction and not of pleading, for if the court had jurisdiction over the subject-matter, it had the power to decide whether the .pleadings are or were not properly drawn, and also to decide whether or not the plaintiff was entitled to the relief sought. If a court has the power to act, its jurisdiction is in nowise impaired by the consideration whether it acted in accordance with the law or erroneously. Given the jurisdiction, all else is a mere matter of error, to be corrected on appeal. Or, further illustrated, if the court has jurisdiction over the subject-matter, it has the power to decide whether the petition does or does not state a cause of action, and the mere failure of a petition to state a cause of action or the defective statement of a good cause of action, in no way affects the jurisdiction of the court.’ ” From the foregoing considerations, it' results that the preliminary rule must be quashed and the writ denied. It is so ordered. Woodson, C. J., Walker and David E. Blair, JJ., concur; Graves, J., dissents in separate opinion, in which Elder and James T. Blair, JJ., concur.