State ex rel. Kenamore v. Wood

GANTT, C. J. This is an original proceeding for a' writ of prohibition out of this court to arrest further action by the circuit court of the city of St. Louis in a certain suit now pending therein to obtain a perpetual injunction against the relator herein as State Beer Inspector to restrain him and his deputies from taking any steps whatever to carry out and enforce an act of the General Assembly of Missouri, entitled, “An Act creating the office of Inspector of Beer and Malt Liquors of the State and providing for the inspection of beer and malt liquors manufactured and sold in this State,” approved May 4, 1899. [Laws 1899, p. 228.] It appears from the petition of relator that eight corporations and one individual separately engaged in the manufacture of beer in the city of St. Louis, joined as plaintiffs in a suit in the St. Louis Circuit Court for the injunction. Relator alleges his appointment to the office of beer inspector by the Governor, and his qualifications as required by the act; that the said eight corporations and single individual were all engaged in the business of brewing beer and other malt products in this State with the purpose of offering the same for sale; that Judges Horatio D: Wood and Eranklin Eerris are two of the circuit judges of the said city of St. Louis, duly elected and qualified and acting as such. He then avers that in September, 1899, said bill for injunction was filed in Division No. 5, of the said circuit court over which Judge Wood presides and was in substance as follows: “Plaintiff's in behalf of themselves and all others in the — 440 — State similarly situated, stated they were and for many years had been engaged in the manufacture and sale of beer and other malt liquors; that defendant George R. Kenamore had been recently appointed beer inspector under the Act of May 4, 1899,” and then set out the act itself in haec verba as it is found in the laws of Missouri 1899, pages 228 to 231 inclusive; that said Kenamore had qualified under the terms of said, act and claimed to be entitled to discharge the duties thereof and enforce and carry out the provisions thereof, and has issued a circular letter notifying plaintiffs and all others similarly situated that he intends to enforce said act of May 4, 1899, and every provision thereof and requiring plaintiffs and all other persons similarly situated to submit their products of beer and other malt liquors to his inspection and threatens to exact the tax imposed by said act under the name of inspection fees. They then allege that besides themselves there are other brewers at other cities in the State also engaged in the manufacture and sale of beer and giving a list of them. They then aver that the said brewers of this State annually manufacture not less than 2,250,000 barrels of beer of 31 gallons each, of which they sell in Missouri not less than 975,000 barrels of 31 gallons each; that of said brewers twelve sell their entire product in this State and of the remainder, the majority sell the largest portion of their product in this State but that one of them sells more than two-thirds of its product and another four-fifths of its product, and another one-half of its product outside of this State. That in addition to the persons named as manufacturing beer in this State there are persons, firms and corporations engaged in manufacturing beer in other States, particularly, Illinois and Wisconsin, who annually ship into and sell in this State not less than 165,000 barrels of 31 gallons each, and about 1,500 barrels of beer and ale are imported from Germany and England. That certain named corporations, firms and persons are — 441 — engaged in the manufacture of weissbier to the amount of 5,200 barrels of which 4,000 are sold in this State and 1,200 exported. That weissbier is a malted fermented liquor brewed from wheat and can not be made from any other cereal. That lager beer is made commonly of hops, malted barley, and of barley, rye, com, and any other farinaceous cereal which it is convenient for the brewer to use and may properly be made of any farinaceous cereal used in conjunction with hops and malt and such materials so used are entirely wholesome. That beer, whether wiessbier or lager beer and whatever its manufacture must for the purposes of sale be inclosed in tight packages of glass or wood, and when so prepared for sale by inclosure can not be opened without injury to the contents and are never opened except for immediate consumption; that the average price of beer manufactured in this State exclusive of United States revenue stamps is five dollars per barrel. Plaintiffs then alleged in said bill for injunction that said act of May 4, 1899, was unconstitutional and void and then proceeded to specify that it violated section 28 of article IY of the Constitution of Missouri, in that it contained more than one subject in its title, and because the title did not indicate the subject of taxation and revenue. That it also violated section 8 of article X of the Constitution of Missouri, in that it exceeded the maximum rate of taxation allowed by the Constitution. That it is violative of section 3, article X, of the Constitution in that it violates the principle.of uniformity ordained by the Constitution in said section. That it violates section 4, article IE, of the Constitution of Missouri which provides that all persons have a natural right to life, liberty, and the enjoyment of the gains of their own industry, etc., and of section 30, article II, which provides that “No person shall be deprived of life, liberty or property without due process of law.” That said act violates said two last mentioned sections of the Constitution in this that the 4th section of said act, which provides that no manufacturers of beer in this State — 442 — shall use any substance, material or chemical in the manufacture of beer or other malt liquors “other than pure hops, or pure extract of hops, or of pure barley, malt or -wholesome yeast or rice,” is an unreasonable, oppressive, and unconstitutional restraint upon a lawful occupation and excludes the use of water which forms the major part of all beer. That the inspection required by the act is „of sealed packages, and such an inspection, if carried out, will be destructive of plaintiffs’ products and render them unsalable and prevent them from pursuing their occupation in this State. That said act is violative of the Fourteenth Amendment to the Constitution of the United States, and section 2 of article IV, of the Constitution of the United States, among other things, in that it discriminates between the brewer who sells in this State and one who exports his product, taxing the first thirty-nine cents a barrel and the other nothing. That said act of May 4, 1899, is inoperative and void "because incapable of execution for the reason that inspection will not determine of what cereals beer is manufactured, and because the inspector and his deputies can not inspect all the beer manufactured from day to day without subjecting the brewers to ruinous delays. That said act is violative of the Constitution of the United States concerning interstate commerce, being section 8, of article I, as well as section 2, of article IV, section 10 of article I, and section 1 of the Fourteenth Amendment. That said act violates the order prescribed by the 'Constitution of Missouri as to appropriations by the General Assembly. That the enforcement of said act would work irreparable injury to plaintiffs and their business. “And plaintiffs further state that besides the irreparable damage which will be inflicted upon their property and business by the inspection of beer as hereinbefore more fully set out, the act in question provides for heavy fines -and penalties and the imprisonment of all brewers who fail to' conform to — 443 — its provisions and who sell their product without submitting the same to such inspection and who fail to pay the unconstitutional tax imposed by said act; and said act provides that a prosecution and conviction for failure to comply with the terms-of said act, and of the payment of said tax shall be followed by a forfeiture of the brewer’s right to manufacture and sell-beer or other malt liquors in this State for a period of two years thereafter, which would cause ruinous damage to plaintiff’s business and that of others similarly situated in which much capital is invested, and in which many thousands of persons are employed; That said pretended right to enforce said act and to inflict said penalties and forfeitures, and,the said circular letter constitute a cloud on plaintiff’s title to their property -and their business and a constant menace thereto.” The said plaintiffs then conclude their petition as follows: “Wherefore plaintiffs say that they are without an adequate remedy at law, -and they now come into a court of equity and pray for relief under the facts and circumstances herein stated, and -plaintiffs say that unless the relief hereinafter prayed for is granted the damage to them and all others similarly situated will be irreparable. Wherefore they now pray that an -order of injunction may issue- out of this court directed to the -defendant, the said George E. Kenamore, claiming to be inspector of beer, enjoining and restraining him, his deputies, servants and agents, and each of them, from enforcing or attempting to enforce said act of the General Assembly of May 4, 1899, and from inspecting or attempting to inspect the beer or other malt liquors manufactured or offered for sale by plaintiffs, or others similarly situated, and from collecting or -attempting to collect any tax or inspection fees under said act, and from attempting to enforce said act as against the said retail dealers, customers of plaintiffs, and others similarly situated, and that said act of the General Assembly be declared null and void, and for such other and further re — 444 — lief as to tliis Honorable Court may seem meet and proper under all the circumstances of the case.” It is then averred by relator herein that the Honorable Horatio Wood, Judge of the Circuit Court of St. Louis, Division No. 5, granted the following temporary injunction or restraining order, omitting formal parts: “Now come the plaintiffs and present their petition and application for a temporary injunction herein, and upon consideration thereof, if is ordered by the court that the defendant, George R. Kenamore, State Inspector of Beer and Malt Liquors, show cause on Wednesday, the 4th day of October, 1899, at 10 o'clock a. m. in Court Room No.- 5, why a temporary injunction should not be granted in accordance with the terms of said petition, pending the final hearing of this cause, ’and that pending the hearing and determination of said application for a temporary injunction, and upon plaintiffs giving bond in the sum of five thousand dollars, to be approved by the clerk, said defendant, George R. Kenamore, Inspector of Beer, as aforesaid, his deputies, servants and .agents, be and hereby are restrained from enforcing or attempting to enforce, the act of the General Assembly of May 4, 1899, entitled: ‘An act-creating the office of Inspector of Beer and Malt Liquors of this State, and providing for the inspection of beer and malt liquors manufactured and sold in this State;’ and the said George R. Kenamore, his deputies, servants and agents are hereby restrained from inspecting or attempting to inspect the beer or other malt liquors manufactured or offered for sale by plaintiffs or others similarly situated and from collecting or attempting to collect any tax or inspection fees under said Act of May 4, 1899, and from attempting to enforce said act as against the retail dealers, customers of plaintiffs, and others similarly situated, referred to in the petition in this cause.” Thereupon relator applied -to one of the Judges of this Court in vacation and procured a provisional writ of prohibí — 445 — tion against further action in said injunction proceeding. Eelator avers that by said injunction he and his deputies were restrained and forbidden to perform their duties under the act of May 4, 1899, that the said circuit court exceeded its jurisdiction and prayed that it might be prohibited from taking or further entertaining jurisdiction of said injunction. I. The question for decision is whether this court can properly and lawfully prohibit the circuit court from further taking cognizance of the application made to -it by the plaintiffs in. said -injunction case. This depends upon whether that court was entirely wanting in jurisdiction to grant said injunction on the showing made in the petition, or whether granting it had jurisdiction in that class of cases, it has not exceeded its jurisdiction. Whether the circuit court was without jurisdiction altogether, or having jurisdiction of the class -of cases in which the injunction was sought it -exceeded its jurisdiction, is only ascertainable in this case by the averments in the bill filed in that court and the orders made thereon. The fact that said court was a court of general -equity jurisdiction and has the power to issue or direct writs of injunction to issue, will not of itself answer the contention made' in this case. Courts of equity are not invested with power to enjoin in any and every case but there must be some special circumstances bringing the case under some recognized head of' equity jurisdiction before it will wield the powerful writ of an injunction. By means -of the process of exclusion -and inclusion we will be greatly aided in reaching the sufficiency of the petition to state a ease belonging to a class in which courts of equity are authorized to grant injunctive relief. [State ex rel. McCaffrey v. Aloe, 152 Mo. 466.] The bill obviously seeks relief upon the idea of the unconstitutionality o-f the law, irreparable damage, multiplicity of suite, and a cloud upon title. — 446 — The act of May 4, 1899, is incorporated in the bill as the foundation of all the various grounds of relief. The allegation as to “cloud upon title” is simply that the circular letter of the State Beer Inspector notifying plaintiffs therein that they must submit their product for inspection .and his pretended right to enforce the said act will constitute a cloud upon their title to their property and business, and a menace thereto. That this averment taken in connection with the statement of the provisions of the law itself, fails to bring the plaintiffs within that class of cases in which equity will interpose to prevent a" cloud upon title, seems too clear for doubt. That jurisdiction is limited to cloud upon title to real estate. It 'Would seem to be elementary that in legal parlance oloud upon title arises with reference to real estate only. [6 Am. and Eng. Ency. of Law (2 Ed.), 150, and cases cited. This is the settled law of this State. Lockwood v. St. Louis, 24 Mo. 20; Leslie v. St. Louis, 47 Mo. 474; Warrensburg v. Miller, 77 Mo. 56; Sayre v. Tompkins, 23 Mo. 443; Bank v. Kansas City, 73 Mo. 555.] But in this case the bill negatives all idea of this inspection law affecting the property of plaintiffs therein, in that it is made a purely personal charge against individuals only, and can form no basis, either in law or equity, of a proceeding against their property or business. A failure to pay it can result neither in a judgment, levy or seizure of their property generally or specially, and the bill wholly fails to charge that any suit, lien, levy or seizure is threatened by the inspector in case of a failure or refusal to submit their product to his inspection. On the contrary, the sole and exclusive remedy is by an indictment or information in a court having jurisdiction over criminal cases. A court of equity, moreover, has no jurisdiction to enjoin the collection of a personal tax or fee when the bill shows no ground for apprehending that the officer will attempt to enforce its collection against the property of the complainant. — 447 — We desist from further discussion of this point because in' our opinion no precedent for an injunction under such a state of facts can be found and because such an allegation discloses no equity "whatever. In the natural connection let us now examine the allegation of “irreparable injury.” As’to this ground, the jurisdiction rests upon well-settled principles. A mere allegation that irreparable injury will ensue is insufficient. Traversable facts must be stated in the bill, which show that plaintiffs can not have an adequate remedy at law, or that the injury can not be compensated by an action for damages as such. [1 High on Injunctions (3 Ed.), sec. 34; Clarke v. Ganz, 21 Minn. 387.] That a court of equity may enjoin upon some other ground is not the question now, but does this petition aver traversable facts sufficient to state a cause of “irreparable injury.” [Dows v. Chicago, 11 Wall. 108; Shelton v. Platt, 139 U. S. 596; Verdin v. St. Louis, 131 Mo. loc. cit. 106 and 107.] The statement of such essential facts is jurisdictional. [Dows v. Chicago, 11 Wall. 108.] When we recall that by no possibility can the property of plaintiffs therein be disturbed for the collection of the inspection fee, it is plain we must look elsewhere in the petition for the traversable facts, which would work irreparable damage. If found at all, it must be in the allegation that the inspection would necessarily render the beer stale, flat and unsalable by opening the vessels containing it, for that purpose. It "is plain, however, that this averment has no other foundation than the act itself and is a legal conclusion drawn by learned counsel from the law. Section 7 of the act is the basis of this contention, and is in these words: “It shall be the duty of such inspector to cause to be inspected all beer br other malt liquors brewed or manufactured or sold in this State, and if he shall find that such beer or other malt liquor has been made from pure hops or the pure extract of hops, or of puré barley, malt — 448 — or wholesome yeast, or rice, to place upon the package containing such beer or malt liquor his label, certifying the same has been inspected and made from wholesome ingredients.” The interpretation of this section is one of law. It should receive a reasonable construction, one which would conform to common sense, and at the same time render the act' opera-tive if possible. So construed it does not require each barrel or bottle to be opened after it is closed. The learned counsel for the State Beer Inspector, the officer charged with this inspection, say “there is but one practical and intelligent method by which the output of lager beer in this State can be inspected; that is by going direct to the brewery and taking a sample of their mash, and of the beer that they are fermenting. This method would not, in the slightest manner, interfere with or hinder them in their operations, and would a't the same time enable the inspector to inspect hundreds and thousands of gallons of beer from the one sample; for as the mash is, so must the beer be. The hnash’ is the material from which the beer is brewed. But should they change the mash after the inspection, they could not possibly change the beer after it was brewed in the fermenting tubs. The fermenting vats are great cooperages, holding each from five hundred to five thousand gallons. Into these the beer is placed for the purpose of fermentation, which is the last act of the brew. After the fermentation the beer is run off into hogsheads, barrels and kegs for the market.” We think the counsel have given a satisfactory and reasonable construction of the act. fío that, if the brewers elect to stand upon their construction, that the act is unconstitutional, they need not submit to an inspection, but may refuse to pay the fees therefor, and defend the indictments and in-formations if any are found, on the ground of the unconstitutionality of the act. On the other hand, if they submit to the law and their brew is inspected in the vats, and large cooper-ages, no damage whatever can result to their beer from the — 449 — inspection, and so this court can say there is no case of irreparable damage made out on the face of the petition in the circuit court. There being, then, neither 'allegations of traversable facts showing 'irreparable damage, or the absence of an adequate remedy at law, or cloud upon title, the case stands upon'the allegations of the unconstitutionality of the act of May 4, 1899, and the complaint that they would be annoyed by a multiplicity of prosecutions for the violation of said act. Now a court of equity has no jurisdiction to enjoin criminal prosecutions, and yet the petition for the injunction in the circuit court ashed and the restraining order prohibited the inspector and his deputies from doing anything to carry out the provisions of the act. He can make no inspections, collect no fees, nor institute any prosecution for violation of the act. Injunctions to prevent criminal prosecutions have been held so completely beyond the jurisdiction of courts of chancery that their decrees in such cases have been disregarded as absolutely void in collateral proceedings, and parties arrested for contempt for violating their injunctions discharged on habeas corpus. [In re Sawyer, 124 U. S. 200.] In this case the mere fact that the injunction is not ashed against the prosecuting attorney of the State eo nomine, can rnahe little or no difference. This court must looh at the effects of said restraining order and prayer for injunction, and determine whether it enjoins, or will enjoin, if granted, the institution of criminal proceedings to enforce the act. Thus in Crighton v. Dahmer, 70 Miss. 602; In re Sawyer, 124 U. S. 200; Yellowstone Kit v. Wood, 43 S. W. Rep. 1068, and New Home S. M. Co. v. Fletcher, 44 Ark. 139, the prosecuting or circuit attorneys were not made parties to enjoin the prosecutions but this did not deter the courts from holding that the purpose of the bills were to enjoin criminal prosecutions, and that courts of equity had no such jurisdiction. — 450 — A case strikingly in point is Fitts v. McGhee, 172 U. S. 516. An act of the General Assembly of Alabama, approved February 9, 1895, prescribed certain maximum rates of toll to be charged on the bridge across the Tennessee river between the counties of Colbert and Lauderdale in that State, known as the Florence bridge. It also provided that if the owners, lessees or operators of the bridge by themselves or their agents, demand or receive from any person a higher rate of toll -than was prescribed by the act, he should forfeit $20 for each offense, to be recovered before any justice of the peace in either of said counties. McGhee and Fink, receivers of the Charleston & Memphis bridge, filed a bill in the circuit court of the United States for the northern district of Alabama against the State of Alabama, William O. Oates, Governor thereof, and Fitts, the Attorney-General, alleging among other things that the rates of toll fixed by said act were arbitrary, unreasonable, and amounted virtually to confiscation of plaintiff’s property; that said act was unconstitutional and deprived them of their property without due process of law and denied them the equal protection of the law; that the provision imposing the penalty for demanding or receiving higher tolls than prescribed by the act, was intended to deter from questioning the validity of said act; that they were remediless, except by a bill in equity, and prayed for an injunction. The circuit court granted the injunction, and on appeal the Supreme Court of the United States, through Mr. Justice Harlan, held, first, that the State of Alabama could not be sued in this manner without its assent, at the suit of private persons, and secondly, that the circuit court of the United States, sitting in equity, was without jurisdiction to enjoin the institution or prosecution of criminal proceedings commenced in the State courts; that to do so would be to invade the domain of the courts of common law. Said the court: “The plaintiffs state that the toll-gatherers in their service had been indicted in a State court for violating the provisions of — 451 — •the act of 1895, in respect of tolls. Let them appear to the indictment and defend themselves upon the ground that the State statute is' repugnant to the Constitution of the United States. The State court is competent to determine the question thus raised, and is under a duty to enforce the mandates of the supreme law of the land. [Robb v. Connolly, 111 U. S. 624.] And if the question is determined adversely to 'the defendants in the highest court of the State in which the decision could be had, the judgment may be re-examined by this court upon writ of error. That the defendants may be frequently indicted constitutes no reason why a federal court •of equity should assume to interfere with the ordinary course of criminal procedure in a State court.” To the same effect is the decision in Hemsley v. Myers, 45 Fed. Rep. loc. cit. 286, in which Judge Caldwell says: “A man who has a full and complete remedy at law to recover damages he suffers can not be heard to say that the damage is irreparable.” But counsel for respondents insist that the act copied into and made part of their bill in the circuit court is not and. does not purport to be a criminal statute. By the 12th section of said act it is provided that all prosecutions for fines and penalties under said act shall be either by indictment or information in any court of competent jurisdiction, and by the 10th section it is provided that “any person who shall sell any beer or malt liquors within this State which has not been inspected according to the provisions of this act........ shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine not exceeding five hundred dollars or by imprisonment in the county jail' for a period of not less than six months,” etc. If these words do not define a criminal offense, then it will be difficult to find appropriate language for that purpose. Plaintiffs in the injunction can not be proceeded against — 452 — in any other manner than by indictment or information. This i's not -a mere quasi-criminal proceeding as is the prosecution for violation of a city ordinance; it is a criminal statute of the State, and the allegations of die bill as to “heavy fines and imprisonment” can have no reference 'to the staying of any other proceeding and tire object in view can only bé to enjoin these criminal prosecutions. Such prosecutions will not affect defendants’ property rights and an injunction is not necessary to preserve their rights to any of their property. [Yellowstone Kit v. Wood, 43 S. W. Rep. 1068; New Home S. M. Co. v. Fletcher, 44 Ark. 139; High on Injunctions (3 Ed.), secs. 20, 68, 272, 1244; Beach on Injunctions, secs. 59, 60, 574.] The result of our examination is that the petition in the circuit court did not -and in the very nature of the case could not under the act of May 4, 1899, allege facts which brought .the case under any recognized head of equity jurisprudence. The case stands upon the naked averment that the law is unconstitutional and the inspection fee illegal, the remaining averments wholly failing to make a case under any decision of this court for injunctive relief. In Dows v. Chicago, 11 Wall. loc. cit. 109, Mr. Justice Field, voicing the unanimous judgment of the Supreme Court of the United States in a suit to restrain the collection of a tax levied by the city of Chicago on the ground of its unconstitutionality, said: “Assuming the tax to be illegal and void, we do not think any ground is presented by the bill justifying the interposition of a court of equity to enjoin its collection. The illegality of the tax and' the threatened sale of the shares for its payment constitute of themselves alone no ground for such interposition. There must be some special circumstances attending a threatened injury of this kind, distinguishing it from a common -trespass, and bringing the case under some recognized head of equity jurisprudence before the preventive remedy of injunction can be invoked. It is upon taxa — 453 — tion that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, -may derange the operations of government, and thereby cause serious detriment to the public. No court of equity will, therefore, allow its injunction to issue to restrain their action; except where it may be necessary to protect the rights of 'the citizen whose property is taxed, and he has no adequate remedy by the ordinary processes of the law. It must appear that the enforcement of the tax would lead to a multiplicity of suits, or produce irreparable injury, or where the property is real estate, throw a cloud upon the title of complainant, before the aid of a court of equity can be invoked. In the cases where equity has interfered, in the absence of these circumstances, it will be found, upon examination, that the question of jurisdiction was not raised or was waived.” This explicit statement of the law is fully sustained by the great weight of -authority in this country. [Cruickshank v. Bidwell, 176 U. S. 73; Shelton v. Platt, 139 U. S. 591; Allen v. Pullman’s Palace Car Co., 139 U. S. 661; Union Pac. R’y Co. v. Cheyenne, 113 U. S. 516; Cooley on Taxation, p. 536; United Lines Tel. Co. v. Grant, 32 N. E. Rep. 1005; Franklin v. Appel, 73 N. W. Rep. 259; Thomas v. Rowe, 22 S. E. Rep. 157.] Nowhere is the doctrine more forcibly and correctly stated than in Heywood v. Buffalo, 14 N. Y. 534. Having examined the various allegations of the bill for injunction in our opinion it did not state a case which fell within the class of which the circuit court had jurisdiction to grant an injunction, for the reason that the alleged unconstitutionality of the law alone furnishes no ground for injunction; and because the circuit court had no jurisdiction to prevent the institution of criminal proceedings by the inspector — 454 — by information to punish violations of said act, and because in our opinion the bill, otherwise, charges no traversable facts showing -a want of an adequate remedy at law, but on the contrary shows that the courts of law are open to the plaintiffs in said ease to make their defense to any prosecution under said act, and that the act of May 4, 1899, does not require an •inspector to open sealed packages of beer after they are closed to inspect the same, but may inspect said beer or malt liquors, before put in the closed barrels or bottles. Eor these reasons we think the provisional rule of prohibition should be made absolute against Judge Wood and the circuit court over which he presides, but as Judge Eerris took no part in the case it is ordered dismissed as to him. Brace, Marshall and Valliant, JJ., concur; Burgess, J., dissents; Sherwood, J., not being present at the hearing, takes no part in the decision; Robinson, J., absent.