Opinion
NOTE: Opinion filed at the May Term, 1938, August 8, 1938; motion for rehearing filed; motion overruled at September Term, September 6, 1938.
1. CRIMINAL LAW: Equity. As a general rule a court of equity is without jurisdiction to interfere with the enforcement of the criminal law.
But where a statute or ordinance is unconstitutional or otherwise invalid and where an attempt to enforce it is a direct invasion of property rights resulting in irreparable injury, injunction may issue to restrain its enforcement.
2. CRIMINAL LAW: Equity: Constitutional Question. Where a petition sought to enjoin an action prohibiting the sale of non-intoxicating beer on the ground that it endeavors to regulate in an unlawful manner the traffic in a commodity against the provisions of the Constitution and endeavors to distinguish against plaintiff as a class, since the petition alleged the violation of no provision of the Constitution it presents no constitutional question.
3. INTOXICATING LIQUOR. An act prohibiting saloonkeepers from selling intoxicating liquor on Sunday does not deprive such saloonkeepers of their property without due process of law.
The right to sell intoxicating liquor is not a natural right; the State may impose limitations, conditions, burdens and responsibilities upon those engaged in the traffic.
In such case a revocation of a license issued to saloonkeepers for selling non-intoxicating beer on Sunday would not be an invasion of their property rights.
4. STATUTES: One Subject. An act to prohibit saloonkeepers from selling intoxicating liquor on Sunday while pretending to sell non-intoxicating beer on said day is not a regulation of non-intoxicating beer, and the act contained only one subject.
Appeal from Circuit Court of City of St. Louis. — Hon. Granville Hogan, Judge.
REVERSED AND REMANDED.
Roy McKittrick, Attorney General, E.H. Miller, Assistant Attorney General, Edgar H. Wayman and Oliver Senti for appellants.
(1) Plaintiffs are operating taverns wherein they are licensed to sell intoxicating liquor. (a) The only relief sought by the plaintiffs is that the defendants be restrained from interfering with them for the sale of non-intoxicating 3.2% beer on Sunday. (b) The record contains no evidence of the State Supervisor of Liquor Control ever having made any rule or regulation. Plaintiffs, therefore, are in no position to question the validity of the statute which authorizes him to make rules and regulations. Keane v. Strodtman, 323 Mo. 161, 18 S.W.2d 896. (2) No person having a license to sell intoxicating liquor can lawfully sell, give away or otherwise dispose of upon his premises any intoxicating liquor on Sunday. Laws 1935, p. 267, sec. 15. (a) No person holding a license to sell intoxicating liquor can lawfully sell, give away or otherwise dispose of upon his premises any non-intoxicating beer on Sunday. Laws 1935, p. 267, sec. 22. (3) A privilege which the State may withhold altogether can be granted upon such terms as the State may see fit to impose. State v. Bennett, 315 Mo. 1267, 288 S.W. 50. (a) No one has an inherent right to sell intoxicating liquor and the State can withhold the privilege or grant it upon such conditions as it may see fit to impose. State v. Parker Distilling Co., 236 Mo. 219. (4) The petition raises no constitutional question. State v. Campbell, 259 S.W. 430; Lohmeyer v. Cordage Co., 214 Mo. 688, 113 S.W. 1109; State v. Kramer, 222 S.W. 823. (a) The defendant Supervisor of Liquor Control is an officer of the State. Laws 1933-4, p. 77, sec. 2. (b) A State officer being a party to the cause, this court has appellate jurisdiction. Mo. Const., Art. VI, Sec. 12. (c) This court will not construe a constitutional question not properly raised below although it has jurisdiction of the appeal. St. Louis v. Southcombe, 320 Mo. 865, 8 S.W.2d 1001.
Godfrey, Schurr Taylor for amicus curiae.
(1) Full liquor license dealers licensed to sell intoxicating liquor by the drink are not prohibited from remaining open on Sunday, the first day of the week. Laws 1935, p. 267, sec. 15. (2) The contention of appellants that under the Intoxicating Liquor Act a full liquor license dealer is prohibited from selling or dispensing of 3.2 beer on Sunday is without avail because (a) Section 22 of the Intoxicating Liquor Act does not prohibit full liquor license dealers from selling 3.2 beer on Sunday. Joplin Supply Co. v. Smith, 167 S.W. 649, 182 Mo. App. 212. (b) The attempt of the Legislature to restrict those engaging in the sale of intoxicating liquors only, from selling a non-intoxicating beverage, or lawful commodity, on Sunday, constitutes a discrimination in violation of Article II, Section 30, of the Constitution of the State of Missouri. (3) The Intoxicating Liquor Act, in so far as it attempts to regulate the sale or dispensing of a particular non-intoxicating beverage on Sunday, namely 3.2 beer, is unconstitutional because the title of the Intoxicating Liquor Act relates only to the regulation of traffic in intoxicating liquor and the regulation of traffic in a non-intoxicating beverage in said act constitutes more than one subject, which subject is not embraced in the title of said act. Mo. Const., Art. IV, Sec. 28.
Action to enjoin the State Supervisor of Liquor Control, Board of Police Commissioners, Chief of Police, Chief of Detectives of the City of St. Louis and their subordinates from enforcing the Sunday provisions of the Intoxicating Liquor Act, Laws of Mo. 1935, page 267, l.c. 272. The judgment enjoined the defendant officials from interfering with the saloonkeepers selling non-intoxicating beer on Sunday. Defendants appealed.
The action was instituted by three hundred saloonkeepers. One hundred and fifty saloonkeepers intervened. All of them are licensed to sell intoxicating liquors. The petition of the interveners is substantially the same as the petition of the plaintiffs.
It will not be necessary to summarize the pleadings in view of the stipulation, which follows:
"It is hereby stipulated and agreed by and between the parties plaintiff and the parties defendant and the parties to the interpleader in this action that the only injunctive relief, if any, to be granted by this Court in this cause shall be to restrain the defendants from interfering with the sale by plaintiffs and interveners of non-intoxicating beer, having an alcoholic content under 3.2 percent by weight, on the first day of the week commonly called Sunday."
The provisions of the act (Laws 1935, pp. 267, 272, 275) for consideration follow:
"Sec. 15. No person having a license under the provisions of this act shall sell, give away or otherwise dispose of, or suffer the same to be done upon or about his premises, any intoxicating liquor in any quantity on the first day of the week, commonly called Sunday. . . ."
"Sec. 22. Provided, however, that no licensee holding a license to sell malt liquor containing alcohol in excess of three and two-tenths per cent (3.2%) by weight or any other kind or character of intoxicating liquor, shall sell, give away or otherwise dispose of or suffer the same to be done in, upon or about his premises any non-intoxicating beer in any quantity, either in the original package or by the drink, on the first day of the week, commonly called Sunday."
"Sec. 43. Violation a misdemeanor — penalty. — Any person violating any of the provisions of this Act, except where some penalty is otherwise provided, shall upon conviction thereof be adjudged guilty of a misdemeanor and punished by a fine of not less than Fifty ($50.00) Dollars, nor more than One Thousand ($1000.00) Dollars, or by imprisonment in the county jail for a term not exceeding one year, or by both such fine and jail sentence."
It is the general rule that a court of equity is without jurisdiction to interfere with the enforcement of the criminal law. However, an exception to the rule is stated as follows:
"It is only where the statute or ordinance is unconstitutional or otherwise invalid and where in the attempt to enforce it there is a direct invasion of property rights resulting in irreparable injury that an injunction will issue to restrain the enforcement thereof. Both of these elements are indispensable, and the latter element is not present where it appears that the injury or loss to plaintiff's business or rights of property would be only such as would incidentally flow from the arrest and prosecution thereunder." [32 C.J., sec. 443, p. 280.]
The exception is recognized by this court in State ex rel. v. Wood, 155 Mo. 425, 56 S.W. 474; Merchants Exchange et al. v. Knott et al., 216 Mo. 616, 111 S.W. 565; State ex rel. v. Hall, 297 Mo. 594, 250 S.W. 65, and Wellston Kennel Club v. Castlen, 331 Mo. 798, 804, 55 S.W.2d 288.
The petition alleged that the provision of said act prohibiting plaintiffs and interveners from selling non-intoxicating beer is unconstitutional for reasons as follows: "(1) In that it endeavors to regulate in an unlawful manner the traffic and trade in a commodity against the terms and the provisions of the Constitution of the State of Missouri and of the United States. (2) In that it endeavors to distinguish against these plaintiffs as a class against the terms of the Constitution of the State of Missouri and of the United States."
Thus it appears that the petition alleged a violation of no provision of the Constitution. In this situation the record presents no constitutional question. [State v. Campbell, 259 S.W. 430.]
Even so, amicus curiae contends that the act deprives plaintiffs and interveners of their property without due process of law. [Art. II, Sec. 30, Const. of Mo.]
The right to sell intoxicating liquor is not a natural right. The State may impose limitations, conditions, burdens and responsibilities upon those engaged in the traffic. [State v. Parker Distilling Co., 236 Mo. 219, 139 S.W. 453; State v. Bennett, 315 Mo. 1267, 288 S.W. 50.] If so, neither the revocation of the licenses issued to plaintiffs and interveners nor the prosecution of plaintiffs and interveners for selling non-intoxicating beer on Sundy could be an invasion of their property rights.
Amicus curiae also contends that the act under consideration violates Section 28, Article 4 of the Constitution, which provides that "no bill . . . shall contain more than one subject, which shall be clearly expressed in its title."
It is argued that the act undertakes to regulate both the sale of intoxicating liquor and the sale of non-intoxicating beer on Sunday, and for that reason the act contains more than one subject. We do not think so. The Legislature intended by Section 22 of the act to prohibit the saloonkeeper from selling intoxicating liquor on Sunday while pretending to sell only non-intoxicating beer on said day. In other words, said section is not a regulation of the sale of non-intoxicating beer. It is a regulation of the conduct of those licensed to sell intoxicating liquor and does not violate Section 28, Article IV of the Constitution.
The petitions did not state a cause of action in equity, and the judgment should be reversed and the cause remanded with directions to dismiss the petitions of plaintiffs and interveners. It is so ordered. All concur.