Opinion
December 16, 1932.
1. PROHIBITION: Injunction. A decree in an injunction proceeding restraining certain officials from action, where the petition stated no cause of action against the defendants, is void and prohibition will lie to restrain its enforcement if there is no other adequate remedy.
2. PROHIBITION: Injunction: Adequate Remedy. Where it appears upon the face of the petition that the conduct of the business sought to be protected by the injunction would be a violation of law, the remedy by appeal is inadequate, for the police power would be bound and crime loosed pending the result of an appeal.
3. PROHIBITION: "Proceeding." In such case prohibition should not be denied on the ground that, the injunction suit having gone to final judgment, there was no proceeding, where the court could execute the judgment and cite defendants for contempt for violation of the court's order.
PRELIMINARY RULE MADE ABSOLUTE.
Harry W. Castlen, Herbert W. Ziercher, Arthur V. Lashly, Albert Miller, Forrest C. Donnell and Holland, Lashly Donnell for petitioners.
(1) In general, a court of equity has no jurisdiction to enjoin arrests or criminal prosecutions by public officials. State ex rel. v. Wood, 155 Mo. 449; 32 C.J. 261, 279, 281; Russo v. Miller, 3 S.W.2d 268; Fitts v. McGhee, 172 U.S. 531; Kearney v. Laird, 164 Mo. App. 414; Foley v. Ham, 102 Kan. 66, L.R.A. 1918C, 209; Sterman v. Kennedy, 15 Abb. Pr. (N.Y.) 201; Kramer v. Police Dept., 53 N.Y. Sup. Ct. 492; Campbell v. York, 30 Misc. Rep. 340; Delaney v. Flood, 183 N.Y. 323; Stevens v. McAdoo, 112 N.Y. App. Div. 458; Shepard v. Bingham, 125 N.Y. App. Div. 784; Athletic Club v. Speer, 29 Colo. 158; Adams v. Oyster Fish Co., 34 Colo. 219; Chicago v. Wright, 69 Ill. 318; Moses v. Mayor, 52 Ala. 208; Caille Co. v. Haager, 50 S.W. 244; Ex parte Sawyer, 124 U.S. 200, 31 L.Ed. 402. The exceptional cases in which courts of equity have jurisdiction to enjoin arrests or criminal prosecutions are only those in which exist each and all of the following facts: (a) That no crime has been, or is about to be committed. (b) That no reasonable ground exists for suspicion, by the public officials, that a crime has been, or is about to be, committed. (c) That a direct invasion of property rights will be involved in such arrest or prosecution. (d) That irreparable injury will result from such arrest or prosecution. (e) That the complainant comes into court with clean hands. Certain of said five facts do not exist in the case at bar. On point that crime was about to be committed by respondent see: State v. Stolberg, 2 S.W.2d 619; Secs. 4285, 4286, 4291, 4303 and 4314, R.S. 1929; Art. XIV, Sec. 10, Const. of Mo.; State ex rel. Gentry v. Ramona Kennel Club, 8 S.W.2d 1; Definitions in 12 R.C.L. 707, 720, 721, 747, and 726; St. Louis Fair Assn. v. Carmody, 151 Mo. 566; State ex rel. Cantley v. Meyer Tailoring Co., 25 S.W.2d 98; State ex rel. v. Hughes, 253 S.W. 229; State v. Becker, 248 Mo. 559; Kearney v. Laird, 164 Mo. App. 406; Fleming v. Wengler, 190 S.W. 875, 269 Mo. 366; State v. Huber, 263 S.W. 94, 304 Mo. 15; State v. Emerson, 1 S.W.2d 109, 318 Mo. 633. As to the effect of existence of reasonable ground for suspicion and the right of officials to exercise discretion see: Kearney v. Laird, 164 Mo. App. 413; State ex rel. Shartel v. Westhues, 320 Mo. 1111, 9 S.W.2d 612; Selecman v. Matthews, 321 Mo. 1051; Russo v. Miller, 3 S.W. 269; Oliver v. Orrick, 288 S.W. 969; Modern Horseshoe Club v. Stewart, 242 Mo. 431; 32 C.J. 242, sec. 384; 32 C.J. 253, sec. 398; 22 R.C.L. 490, 493; 2 High on Injunctions (4 Ed.) 1324, 1325, sec. 1311; 4 Pomeroy's Equitable Jurisdiction (4 Ed.) 4064, sec. 1751; 22 Cyc. 880; Decker v. Diemer, 229 Mo. 296; Gaines v. Thompson, 74 U.S. 352, 19 L.Ed. 65; 2 High on Injunctions (4 Ed.) sec. 1326; Kerr on Injunctions, p. 4; Spelling on Injunctions, secs. 628, 691; 3 Abbott on Municipal Corp., secs. 1130, 1137; 22 Cyc. pp. 879, 889; Ballentine's Law Dict., p. 979; 3 Bouvier Law Dict., pp. 2615-23; Freund on Police Powers, sec. 86. With respect to direct invasion of property rights and irreparable injury, see Modern Horseshoe Club v. Stewart, 242 Mo. 421; State ex rel. v. Wood, 155 Mo. 447; Secs. 3945, 3954, R.S. 1929; State ex rel. v. Kreuger, 217 S.W. 310, 280 Mo. 299; Kearney v. Laird, 164 Mo. App. 413; Sullivan v. Gas Co., 148 Cal. 368; Fincke v. Police Comm., 66 How. Pr. 318; Kenny v. Martin, 11 Misc. 651; Suesskind Rehfeldt v. Bingham, 125 N.Y. App. Div. 787; Moore v. Owen, 109 N.Y.S. 585; Russo v. Miller, 3 S.W.2d 269. With respect to necessity for clean hands, see Russo v. Miller, 3 S.W.2d 266; Modern Horseshoe Club v. Stewart, 242 Mo. 431. (2) It appearing upon the face of plaintiff's petition that plaintiff has no powers nor privileges not possessed by individuals or partnerships, it is not a suable entity; and, therefore, cannot maintain this action. Sec. 11, Art. XII, Const. of Mo.; Sec. 4526, R.S. 1929; Newton County Farmers Fruit Growers Exchange v. Ry. Co., 326 Mo. 622; Mayes v. United Garment Workers, 320 Mo. 19; Clark v. Grand Lodge, 43 S.W.2d 405. And power or privilege must be conferred by statute. Newton County Farmers Fruit Growers Exchange v. Ry. Co., 326 Mo. 622; Clark v. Grand Lodge, 43 S.W.2d 405. (3) Prohibition is the proper remedy to prevent a court from assuming a jurisdiction which it has not or exceeding a jurisdiction which it has. State ex rel. v. Aloe, 152 Mo. 483; State ex rel. v. Elkins, 130 Mo. 109; State ex rel. v. Porterfield, 6 S.W.2d 47; State ex rel. v. Denton, 128 Mo. App. 304; State ex rel. v. Fort, 107 Mo. App. 328; State ex rel. v. Allen, 45 Mo. App. 557. Prohibition will issue to prevent the enforcement of a void decree. State ex rel. v. Wood, 155 Mo. 425, L.R.A. 596; State ex rel. v. Hennings, 194 Mo. App. 546. Prohibition is the proper remedy to prevent an abuse of judicial power where the remedy of appeal or writ of error is inadequate. State ex rel. v. Burney, 193 Mo. App. 326; State ex rel. v. Eby, 107 Mo. 526; State ex rel. v. Hall, 12 S.W.2d 94; State ex rel. v. Mills, 231 Mo. 493. The remedies of appeal and writ of error are wholly inadequate in this case. State ex rel. v. Calhoun, 234 S.W. 855; State ex rel. v. Burney, 193 Mo. App. 336; State ex rel. v. Withrow, 133 Mo. 500; State ex rel. v. Spencer, 166 Mo. 271; Railroad v. Wear, 135 Mo. 230; State ex rel. Bickford v. Porterfield, 6 S.W.2d 47.
Henry Rowe, T.J. Rowe and Thos. J. Rowe, Jr., for respondent.
(1) The petition must affirmatively allege every fact upon which to base the authority for the issuance of the writ. State ex rel. v. Ryan, 79 S.W. 429; State ex rel. v. Huck, 246 S.W. 303; Barnes v. Gottschalk, 3 Mo. App. 223. (2) The petition fails to allege and the record fails to show the pendency of any suit or proceeding before respondent as Judge of the Circuit Court of St. Louis County. State ex rel. v. Ryan, 79 S.W. 429; State ex rel. v. Huck, 246 S.W. 303; Barnes v. Gottschalk, 3 Mo. App. 223. (3) The Supreme Court will not take judicial notice of the rules of circuit courts. State ex rel. Clinton Const. Co. v. Johnson, 272 S.W. 928; Fox-Miller Grain Co. v. Stevens, 217 S.W. 994; O'Donnell v. New York Life Ins. Co., 251 S.W. 82; Hirsch v. Hirsch, 273 S.W. 151. A motion for a rehearing is not authorized by any law, and when filed to circumvent the mandate of the statute limiting the time for answering is necessarily frivolous and may be disposed of immediately. Secs. 768, 769, 813, R.S. 1929; Valle v. Picton, 16 Mo. App. 180; Nelson v. Betts, 30 Mo. App. 10; Cashman v. Anderson, 26 Mo. 67; State v. Underwood, 76 Mo. 630. (4) Equity will enjoin the prosecution of crime, but the petition must state facts showing that irreparable injury to property or property rights will result, save for the intervention of a court of equity by injunction. Russo v. Miller, 3 S.W.2d 266; Kearney v. Laird, 164 Mo. App. 406; State ex rel. v. Wood, 56 S.W. 474. A court of equity has jurisdiction to inquire into the legality of any threatened invasion of property or rights of property, by public officers charged with the enforcement of the criminal laws, where the facts alleged in the petition show that irreparable injury will result to plaintiff's property, if such invasion is held unlawful. Merchants' Exchange v. Knott, 111 S.W. 651; State v. Hall, 250 S.W. 64; State ex rel. v. Wood, 56 S.W. 474. (5) If to make up and distribute a purse on a horse race is not betting or wagering or other gambling, as has been universally held, neither is the distribution of a purse or possible over-subscriptions on a dog race in the manner described in the petition. Treacy and Wilson v. Chinn, 79 Mo. App. 651; State v. Hayden, 31 Mo. 35; St. Louis Fair Assn. v. Carmody, 151 Mo. 571; State v. Lemon, 46 Mo. 375; Delier v. Plymouth County Agricultural Society, 57 Iowa 481; People v. Fallon, 4 A.D. 82; Alvord v. Smith, 63 Ind. 58; Harris v. White, 81 N.Y. 532; Wilson v. Conlin, 3 Ill. App. 517.
This is an original proceeding in prohibition by the Prosecuting Attorney, the Sheriff and the County Counselor of St. Louis County, Missouri, the Attorney-General of the State and the Constable of St. Ferdinand Township in said county and state, as petitioners, to prevent respondent from enforcing or causing to be enforced the provisions of a certain decree rendered by him in an injunction suit against them, and from doing any act or entering any order pertaining to the punishment or citation of petitioners as for contempt for a violation of the terms and provisions of said decree. Respondent made return to our preliminary rule and petitioners filed verified reply thereto. Respondent thereupon filed motion for judgment on the pleadings.
The question for decision is whether our preliminary rule prohibiting respondent from enforcing the decree rendered by him in the injunction suit should be discharged or made absolute.
It appears from the pleadings herein that no evidence was taken. If, as petitioners contend, plaintiff's petition stated no cause of action against defendants then the decree rendered is void, and prohibition will lie to restrain its enforcement if there is no other adequate remedy. [State ex rel. v. Mills, 231 Mo. 493, 503, 133 S.W. 22; 32 Cyc. 621, 622, n. 44; 22 R.C.L. p. 6, n. 13, and cases cited.]
Counsel for respondent insist that petitioners had an adequate remedy by appeal, and for that reason our preliminary rule in prohibition should not have been issued. The restraint here complained of is upon a public and not a private right. The public is to that extent deprived of its right to the unhampered exercise of official discretion on the part of its law enforcement representatives in the discharge of their duties. Where it appears on the face of a petition that conduct of the very business sought to be protected would be in violation of law it is unthinkable that the police power should be bound and crime loosed pending the result of an appeal in the injunction suit — all on the specious plea that in this the public would have an adequate remedy. In such case the remedy by appeal is obviously inadequate.
After the preliminary rule was issued in this case the appeal taken in the injunction suit was advanced in this court on motion because of the public interest involved, and there is herewith handed down our opinion on the merits of that appeal wherein we hold that the petition stated no cause of action against defendants. The reasons therefor are just as apparent on the face of the record in this case as they were on the face of the record submitted on the appeal and reference is made to that opinion for a full statement of the grounds for such holding. [Wellston Kennel Club, a Voluntary Association, v. Harry W. Castlen, 55 S.W.2d 288.] It is enough simply to announce the same holding in this case.
Counsel for respondent, however, say that in this case our writ was prematurely issued because the injunction suit had gone to final judgment and no proceeding was then pending for its enforcement, citing State ex rel. v. Ryan, 180 Mo. 32, 49, 79 S.W. 429. In that case members of a state board applied to a circuit court for a contempt citation directed to certain witnesses who had refused to testify in certain matters then pending not in court but before the board. No citation had been issued when the writ was applied for and upon an admittedly technical view of the facts pleaded it was held that there was no cause pending before the circuit court upon which the writ could operate, hence, prohibition would not lie. According to the petition in the instant case not only did respondent permanently enjoin petitioners, in a suit brought for that purpose, from taking any official action whatever that would in anywise interfere with the Kennel Club's alleged activities, but each of them was immediately served with a copy of the order. This record is meaningless if it does not show that any subsequent act of petitioners in violation of respondent's order would be met by the Kennel Club's motion in the same cause for a contempt citation, and respondent's return filed herein boldly declares his intention to proceed therewith unless prohibited by this court. We think the facts shown fully meet the requirement of a pending action, proceeding or matter upon which the writ could operate. [Ferriss on Extraordinary Remedies, sec. 321, pp. 432, 433, n. 25; 22 R.C.L. 8, sec. 7, n. 8; 50 C.J. p. 662, n. 86, p. 663. n. 96.]
The preliminary rule was providently issued and it is now made absolute. All concur.