State Ex Rel. Burns v. Shain

*376 WALKER, J. Relator, by an original action in this court, seeks to prohibit respondent as judge of the Thirteenth Judicial Circuit from continuing in force a temporary injunction and to restrain him from proceeding against the relator for' contempt for the latter’s violation of the temporary writ. On November 14, 1921, the prosecuting attorney of Pettis County filed in the circuit court of that county a suit entitled, “The State of Missouri ex rel. Prosecuting Attorney, plaintiff, v. O. J. Burns, defendant, ’ ’ ih which .it was alleged that the defendant was the occupant and in charge of a building in the city of Sedalia known as the Falstaff Hotel, wherein *377 he unlawfully sold and kept for barter and sale intoxicating liquors, and that the said building was then being used as a nuisance and should be enjoined and abated. On the filing of said petition, notice was served on the defendant that on the 19th day of November, 1921, plaintiff would apply to the court for an injunction against defendant to have said building declared a public and common nuisance and abated as such. The only relief sought was the closing of the building. On the same day the defendant made application for a change of venue, Immediately thereafter there was much discussion in open court between the contending parties not necessary or relevant in the determination of the matter at issue, and the prosecuting- attorney dismissed the case. On the same day he filed, another petition having the same title and parties as in the first. It contained the same averments as to the unlawful sale and keeping for sale of intoxicating liquors in the Falstaff Hotel, and prayed that the building and premises be declared a public and common nuisance and that it be abated by a permanent injunction and closed for a reasonable length of time. In- addition it was prayed (which prayer was not in the first petition) that the defendant, his agents and servants be forthwith restrained from maintaining said nuisance until the conclusion of the trial and pending the final determination of the case. The distinguishing difference between the two cases is'that in the first no temporary injunction was asked as it was in the second. The temporary injunction, however, was not sought to- close the building but to restrain the defendant and his agents and servants from maintaining a nuisance, the closing- of the building being left to the conclusion of the trial as to whether a permanent injunction should be issued. Upon the filing of the second petition, the plaintiff asked the immediate issuance of a temporary injunction; whereupon defendant’s attorney asked for time to file an application for a change of venue, which was denied, and a temporary injunction granted as prayed by plain *378 tiff. After the entry of the order granting this writ, which restrained the defendants from conducting or maintaining the nuisance in the building, the defendant filed his application for á change of venue, but almost immediately withdrew the same, and filed a motion to dismiss the temporary restraining order. Thereafter, the troubled waters seem for .a time to have become stilled, the record disclosing no further entries indicative of action until January 4, 1922, when the plaintiff (as prosecuting’ attorney) filed an application that the defendant be cited for contempt in violating the temporary restraining order or injunction. This citation was issued and the defendant brought into court. He thereupon filed an additional motion to dissolve the temporary restraining order, which motion was overruled. He then asked time within which to commence the action at bar, which was granted; and on the 12th day of January, 192.2, b,e filed the petition in prohibition in this court. The alternative writ was granted, respondent made return thereto, a commissioner to take testimony was appointed and the same was taken. Included therein is a transcript of the record of the proceedings in the first case, which had been dismissed. The propriety of the trial court’s action in regard to the last-mentioned matter may, in the determination of the pertinent issues, become a subject for consideration. I. ■ Only an absence or an excessive exercise of jurisdiction will authorize prohibition. This rule as applied to the facts at bar will enable it to be determined whether the writ herein should be made permanent. The general jurisdiction of the circuit court over . , . . , . „ ,, , cases involving a violation of the law concerning the use and possession of intoxicating liquors is conferred by statute (Sec. 6594b, Laws 1921, p. 415), and a discussion of that power is therefore rendered unnecessary. There remains, however, the question as to whether *379 the court, although having a, general jurisdiction over this class of cases, has exceeded it in the original action upon which this proceeding is based. [State ex rel. Bernero v. McQuillin, 246 Mo. 517, and cases p. 532.] The writ prayed, for cannot be made to perform the functions of an appeal or a writ of error. An attempt to secure its use in that behalf, as indicated by the record, renders a restatement of the rule relevant. [State ex rel. v. Fort, 210 Mo. 525 and cases; State ex rel. Buckingham Hotel Co. v. Kimmel, 183 S. W. (Mo. App.) l. c. 652; State ex rel. Aiken v. Buckner, 203 S. W. (Mo. App.) l. c. 243.] A material question confronting us before considering defendant’s contentions and one which it seems will suffice to determine this case is discussed in State ex rel. Thrash v. Lamb, 237 Mo. 437. It was held in that case that the question as to whether the. State at the relation of the prosecuting' attorney of a county may maintain an action to abate a public nuisance was one to be raised and deter- . , , . .. mined m the trial court, and that it did not go to the jurisdiction of the court; and as a consequence its decision thereon did not furnish a basis for prohibition to restrain the court from the further exercise of jurisdiction in the case. Regardless of this ruling, however, we have re viewed in their order the defendant’s contentions. It is urged that the trial court exceeded its authority in not sustaining the application for a change of venue in the first suit brought by the prosecuting attorney, which was dismissed by him with the approval of the court. The prosecuting attorney-in bringing the suit was acting in his official capacity and, as a consequence, he was clothed with such discretion as to authorize him to dismiss tire proceeding if, in his judgment, such course was for the bes.t interests of the public. Empowered to thus dispose of the action, controversy as to the regularity of that proceeding is foreclosed; and the presentation and discussion of the court’s action in that behalf are ir *380 relevant. No adjudication having been made in the first case other than the judgment of dismissal, the parties were left to litigate the issues as though no action had been commenced. [Harrison v. Rem. Paper Co., 140 Fed. 385, 72 C. C. A. 405, 5 Ann. Cas. 314, 3 L. R. A. (N. S.) 954.] II. It is further contended that the trial court exceeded its powers in refusing to give the defendant time to prepare and file an application for a change of venue in the second case before granting the temporary restraining order prayed for by the prosecuting attorney. Whether or not this was a proper exercise of the court’s powers is rendered unnecessary of solution by the defendant’s own action. The record discloses that the defendant, upon the entry of the temporary restraining order by the court, filed the application for a change of venue, but immediately thereafter withdrew the same and filed a motion to dismiss the temporary order. This constituted an abandonment of the application and a waiver of objections to the validity of the court’s action. The ruling* of a trial court will not be held to be error where it appears that the matter ruled upon was abandoned by the complaining party in pursuing another and different .course from that upon which the assignment was based. [State ex rel. Kimbrell v. People’s Ice Co., 246 Mo. 168.] Not only did the defendant abandon his application but cleared the way for this course by withdrawing it from the court’s consideration. Further than this, the improper granting* 'or refusal of a change of venue is a matter of exception. None was preserved in this case. [In re Drainage District v. Richardson, 227 Mo. 252; State ex rel. v. Riley, 203 Mo. 175; State ex rel. v. Evans, 184 Mo. 632; Littleton v. Burgess, 16 Wyo. 58, 16 L. R. A. (N. S.) 49.] *381 *380 III. The right to the writ is invoked on the ground that the petition for injunction filed by the prosecuting *381 attorney does not state facts sufficient to constitute a cause of action. The sufficiency of the petition was not challenged in the trial court. Under such circumstances, prohibition will not lie. Having jurisdiction of the subject-matter and the parties, this court must presume that the trial court, if afforded an opportunity to rule upon a demurrer or a motion to make more definite and certain, will rule correctly. As we said in effect in State ex rel. Warde v. McQuillin, 262 Mo. l. c. 268, it will not do for us to anticipate the rulings of the judge upon the sufficiency of the pleadings or on the facts, or to imagine errors in his future rulings and take over jurisdiction to ourselves, not only as to the sufficiency of the pleadings but on the merits, as intermediate steps to arrest the. progress of a case pending below. To the same effect it was said in the Warde Case: “On prohibition the determinative question 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 Schubach v. McDonald, 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 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 were 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 no wise 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, *382 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 caúse 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.’ ” IV. It is contended that the court exceeded its powers in denying the defendant the right to a trial by jury. In support of this contention it is urged that this right, as accorded by the State Constitution (Secs. 22 and 28, Art. 2), has been violated. Section 22 has reference solely to criminal cases. It has no application here because this is purely an equitable proceeding. [Sec. 6594b, Laws 1921, p. 415.] Section 28 has reference to the inviolability of the right to a jury trial as heretofore enjoyed. This means that the right as it existed at common law is not to be impaired. This guaranty has not been held to apply to cases in equity. [State ex rel. Thrash v. Lamb, 237 Mo. 437, 141 S. W. 665; State ex rel. v. Canty, 207 Mo. 439.] To give concrete application to the rule, where the application is for an injunction to ábate a public nuisance, no damages being asked, the constitutional guaranty does not apply. [Ex parte Keeler, 45 S. C. 537, 31 L. R. A. 678.] Where, as in the instant case, relief is sought in the abatement of a nuisance, although as an incident thereto the defendant may be made, liable for the costs and the judgment therefor may go against the property used in carrying on the nuisance, if no other damage or relief is sought, the defendant is not entitled to a jury. [King v. Commonwealth, 238 S. W. (Ky.) 373.] The opinion in the King Case, supra, contains a compilation and discussion of numerous cases from different jurisdictions which uniformly sustain the rule as announced. The eases cited by respondent (McMillan v. Wiley, 45 Fla. 487; Wiggins v. Williams, 36 Fla. 637; Davis v. Settle, 43 W. Va. 17) that where the effect of a stat *383 ute was to give a remedy in equity for what was formerly a leg'al demand has no application here. A proceeding to abate a public nuisance is inherent in courts of equity and cannot be divested although such acts may entail a violation of the criminal law. [State ex rel. Kleinschmidt v. Jones, 277 Mo. 71; State ex rel. Railroad v. Woolfolk, 269 Mo. 389; State ex rel. Gibson v. Railroad, 191 S. W. (Mo.) 1051.] The supplementary contention therefore that the statute (Sec. 6594, supra) is unconstitutional in that it denies the right to a trial by jury is without- merit, as no such right exists in a proceeding of this character. Y. In considering the validity of the statute it should be borne in mind that it does not provide, nor is it sought in this proceeding, to try the defendant for a Crime. The temporary writ granted herein can have reference only to what may be done in the future. If its terms be violated, the defendant (relator here) may be cited to answer for such violation. The statute provides “if it be made to appear by affidavit, or otherwise to the satisfaction of the court, or judge in -vacation, that such nuisance exists a temporary writ of injunction shall forthwith issue restraining the defendant,” etc. This statute is but a declaration of one of the many phases of the police power, which, is conceded to include everything essential to the preservation of the public health, safety and morals. Included within the exercise of this power is the abatement of nuisances by summary proceedings if the same be found within the purview of the statute. In the exercise of this power a particular discretion is vested in the Legislature in framing the statute, and also in the courts in the enforcement of same. Two cardinal rules are to be observed in the exercise of this power on behalf of the public: One is that the interests of the public demand the interference; and the other that the means employed be reasonably necessary for the accomplishment of the purpose in view and not unduly oppressive upon individuals. In the presence of *384 these conditions, in no wise contravened by the terms of the statute, the right to exercise the power therein defined is not subject to question. The enforcement of the statute not having been shown to be in excess'of the power conferred and defendant having been deprived of no constitutional right, the preliminary writ issued herein should be discharged, and it is so ordered. Woodson, G. J., and White, J., concur; David E. Blair, J., concurs except in paragraph 2; James T. Blair and Graves, JJ., dissent; Ragland, J., not sitting.