August 14, 1941.
1. PROHIBITION: Parties. The plaintiff in an injunction suit, as to which it is sought to prevent the judge from entertaining jurisdiction, was improperly joined as a respondent.
2. INJUNCTIONS: Pleading. A petition for an injunction in the circuit court which states conclusions and does not allege that the plaintiff has no adequate remedy at law, fails to state a cause of action.
3. PROHIBITION: Courts: Jurisdiction. The fact that the petition of the plaintiff in the circuit court does not state a cause of action for injunctive relief does not mean that the relators, the defendants in said suit, are entitled to prohibition unless, under the admitted facts, petitioner cannot state a cause of action.
4. INJUNCTIONS: Officers: Photographs and Fingerprints. There may be circumstances in which police officers would not have the right to disseminate the photographs and fingerprints of a person lawfully arrested by them. An action for damages would not be an adequate remedy for the display of an innocent person's photograph in rogues' galleries throughout the country, and such remedy would not constitute a bar to equitable relief.
5. PROHIBITION: Discretion. Prohibition is a discretionary remedy, and will be denied where there is any doubt as to whether, on admitted facts, a defective petition in the circuit court can be amended so as to state a cause of action. The Supreme Court will not speculate as to how the plaintiff would have to amend his petition in order to state a cause of action.
PRELIMINARY RULE DISCHARGED.
William S. Hogsett and Leslie A. Welch for relators.
(1) Prohibition should issue because on the face of Root's petition the respondent judge has no jurisdiction to grant the injunctive relief prayed. (a) A court of equity has no jurisdiction to enjoin law enforcement officers where the complainant makes no claim that such officers threaten irreparable damage to his property rights. Hann v. Fitzgerald, 342 Mo. 1166, 119 S.W.2d 808; State ex rel. Chase v. Hall, 297 Mo. 594, 250 S.W. 64; Wellston Kennel Club v. Castlen, 331 Mo. 798, 55 S.W.2d 288; State ex rel. Castlen v. Mulloy, 55 S.W.2d 294; State ex rel. v. Wood, 155 Mo. 425, 56 S.W. 474; Beach v. Bryan, 155 Mo. App. 33; Russo v. Miller, 221 Mo. App. 292, 3 S.W.2d 266; Kearney v. Laird, 164 Mo. App. 406, 144 S.W. 904. Section 1683, Revised Statutes 1939, did not change the rule. School District v. McFarland, 154 Mo. App. 411, 134 S.W. 675. The facts alleged by Root do not constitute violation of property rights. Ryan v. City of Warrensburg, 342 Mo. 761, 117 S.W.2d 303; Wolf v. Harris, 267 Mo. 405, 184 S.W. 1139. (b) A court of equity has no jurisdiction when complainant has an adequate remedy at law — and this complainant has such remedy. Modern Horseshoe Club v. Stewart, 242 Mo. 421. (c) On the ground of public policy, courts of equity have no jurisdiction to enjoin law enforcement officers in the performance of administrative functions. State ex rel. Igoe v. Joynt, 110 S.W.2d 737; Selecman v. Matthews, 321 Mo. 1047, 15 S.W.2d 788. (d) Article III of the Missouri Constitution prohibits the judicial department from interfering with the executive department in the exercise of its administrative functions. State ex rel. Shartel v. Westhues, 320 Mo. 1093, 9 S.W.2d 612; Russo v. Miller, 221 Mo. App. 297. (2) Prohibition should issue because Root's petition not only does not state, but under the pleaded facts, cannot state, a cause of action. State ex rel. Kansas City Missouri River Navigation Co. v. Dew, 312 Mo. 300; Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606; State ex rel. Barnett School Dist. v. Barton, 104 S.W.2d 284; State ex rel. Hog Haven Farms, Inc., v. Pearcy, 328 Mo. 560, 41 S.W.2d 403; State ex rel. v. Wood, 155 Mo. 425, 56 S.W. 474; State ex rel. Hyde v. Westhues, 316 Mo. 457, 290 S.W. 443. Root cannot state a cause of action, because (a) The power of law enforcement officers to fingerprint persons lawfully arrested exists without express legislative authority. Holker v. Hennessey, 141 Mo. 527; Sec. 8354, R.S. 1939; Bartletta v. McFeeley, 107 N.J. Eq. 141, 152 A. 17; Downs v. Swann, 111 Md. 53, 73 A. 653; State ex rel. Bruns v. Clausmier, 154 Ind. 599, 57 N.E. 541; Mabry v. Kettering, 89 Ark. 551, 117 S.W. 746; United States v. Kelly, 55 F.2d 67; Shaffer v. United States, 24 App. (D.C.) 417, writ of certiorari denied in 196 U.S. 639, 49 L.Ed. 631, 25 S.Ct. 795; People v. Les, 267 Mich. 648, 255 N.W. 407; People v. Sallow, 100 Misc. 447, 165 N.Y.S. 915; United States v. Cross, 20 D.C. 365; Owensby v. Morris, 79 S.W.2d 934, 83 A.L.R. 127. Taking fingerprints of persons lawfully arrested does not violate the constitutional prohibition against self incrimination. People v. Les, 267 Mich. 648, 255 N.W. 407; Holt v. United States, 218 U.S. 245; Olmstead v. United States, 277 U.S. 438; State v. Pomeroy, 130 Mo. 489; State v. Jeffries, 210 Mo. 302; State v. Sharpless, 212 Mo. 176. (b) The Bertillon statute, sections 4184-4187, Revised Statutes 1939, did not destroy inherent administrative power to fingerprint persons lawfully arrested. (c) Said statute has no application to fingerprinting and photographing because it was not so intended when enacted. Southwest Mo. Light Co. v. Scheurich, 174 Mo. 235; State ex rel. Laclede Gas Light Co. v. Murphy, 130 Mo. 10; Lamar v. United States, 241 U.S. 103; State ex rel. Aull v. Field, 112 Mo. 554, 20 S.W. 672; Fischbach Brewing Co. v. St. Louis, 231 Mo. App. 793, 95 S.W.2d 335; City of Lexington ex rel. Menefee v. Commercial Bank, 130 Mo. App. 687, 108 S.W. 1095; Pate v. Ross, 229 Mo. App. 836, 84 S.W.2d 961; State ex rel. Rippee v. Forest, 177 Mo. App. 245, 162 S.W. 706. The Bertillon system did not include fingerprinting and photographing. Laws 1899, p. 59; Sec. 7702, R.S. 1939. (d) The Bertillon statute was not an enabling statute. Since it was not in derogation of any existing law, it created no new powers. Sutherland on Statutory Construction (1 Ed.), pp. 410, 415, 416; Black on Interpretation of Laws, p. 107. (e) Declarations contained in State v. Baldwin, 317 Mo. 759, 780, are not controlling, were dictum, were erroneous and should be disapproved. (3) There is urgent public need for this Honorable Court to exercise its discretion by issuing prohibition herein. State ex rel. St. Louis Mut. Life Ins. Co. v. Mulloy, 52 S.W.2d 469; State ex rel. Moss v. Hamilton, 260 S.W. 466; State ex rel. Nolen v. Nelson, 310 Mo. 526; State ex rel. Funkhouser v. Spencer, 166 Mo. 271; State ex rel. Caldwell v. Cockrell, 280 Mo. 269.
Clif Langsdale, Clyde Taylor and Roy W. Rucker for respondents.
(1) Where it is contended that equity may not intervene because only personal rights are involved, the court, where it is apparent that a constitutional right has been violated, will search out and discover, if possible, at least some nominal property right upon which injunctive relief may be awarded. 28 Am. Juris. 264; Ex parte Badger, 226 S.W. 936; 14 A.L.R. 301. (2) Missouri has a statute which abolishes any distinction between purely personal and property rights so far as the jurisdiction of a court of equity is concerned. R.S. 1939, sec. 1683; 28 Am. Juris. 226; Macklind v. Ferry, 108 S.W.2d 21; Hughes v. State Board of Health, 137 S.W.2d 523; Pacific Movement v. Wright, 117 S.W.2d 647; Thompson v. Malden, 118 S.W.2d 1059; Crow v. Crow-Humphrey, 73 S.W.2d 807. (3) The right asserted by plaintiff below which is being invaded by defendants below, is a fundamental human right in the nature of a property right, even under the ancient chancery rules. United States v. Kelly, 51 F.2d 263; Cooley on Torts, 29; Railroad v. Botsford, 141 U.S. 250; Lutherman v. Romey, 143 Iowa 233, 121 N.W. 1040; Munden v. Harris, 134 S.W. 1076. (4) The injunction sought below does not interfere with the exercise of any lawful authority possessed by the defendant police officials. Noble v. Un. River Ry., 13 Sup. Ct. 271; Garfield v. Goldsby, 29 Sup. Ct. 62; Lane v. Watts, 34 Sup. Ct. 965; Payne v. Central Pac. Ry., 41 Sup. Ct. 314; Santa Fe Railroad v. Fall, 42 Sup. Ct. 466; Colo. v. Toll, 45 Sup. Ct. 405; Work v. La., 46 Sup. Ct. 92; 32 C.J. 240; State v. Johnson, 137 S.W. 589. (5) Taking pictures and fingerprints of persons who have not been convicted of a felony is unlawful. Secs. 4184-4187, R.S. 1939. (6) Statute having described the persons whose photographs and fingerprints may be taken excludes the taking of the photographs and fingerprints of any other persons. 59 C.J. 984; State v. Sweany, 195 S.W. 714; Sutherland on Statutory Const., sec. 327; Ex parte McCardle, 74 U.S. 506; Johnson v. Ry., 117 F. 462; Johnson v. Baker, 139 P. 87; Kincade v. Becchi, 164 N.E. 199; People v. Deutsche, 94 N.E. 162; Pierce v. Bekins, 172 N.W. 191; Boswell v. Sinns, 219 S.W. 803; Van Sweeden v. Same, 230 N.W. 191; In re Bailey Estate, 103 P. 232; Milholland v. Stanton, 231 S.W. 332; 25 R.C.L. 981. (7) It is illegal for police officers to take the pictures and fingerprints of a person who has not been convicted of a felony. State v. Baldwin, 297 S.W. 10. (8) The ruling in the Baldwin case (supra) on the question of the right of the police department to make photographs and take fingerprints of persons not convicted of a felony is not obiter dictum. 15 C.J. 952; Kane v. McCown, 55 Mo. 181; State v. Moore, 147 S.W. 551. (9) Plaintiff below does not have an adequate and complete remedy at law. 32 C.J. 42, 60-61; State v. Guinotte, 57 S.W. 281; McAlister v. Graham, 206 S.W. 393; Springfield Co. v. Springfield, 85 Mo. 674; St. Louis Bank v. Kennett, 74 S.W. 481; Gordon v. Mansfield, 84 Mo. App. 373; Calvert v. Bates, 44 Mo. App. 632. (10) There is no yardstick by which the damages of the plaintiff below may be measured. 32 C.J. 62; Cooley on Torts, sec. 29; Union Pac. Ry. v. Bottsford, 141 U.S. 250. (11) The taking of fingerprints and photographs is a part of the Bertillon Signaletic System. Am. Ed., Dr. Bertillon's Book (1896), 79A-79B. Thomas C. Hennings, Jr., Henry G. Morris, Ivan Lee Holt, Jr., George D. Chopin and Oliver Senti for Department of Police for City of St. Louis, amicus curiae.
(1) Prohibition should issue for the reason no cause of action is stated under the facts pleaded. (a) The statute relied on by respondent Root has no application to the point involved. (b) The acts complained of are within the scope of the general police powers of the State and its enforcement officers. Secs. 4346, 4834, 6581, 8354, R.S. 1939; Art. XVII, Ch. 30, R.S. 1939. (2) Prohibition should issue because no jurisdictional matter was presented to respondent judge, and (a) No constitutional question is involved; (b) The point involved is a moot question; (c) Absent attempted use of evidence of fingerprints at trial, no question was presented for determination. State v. Cerciello, 86 N.J.L. 309, 90 A. 112, 52 L.R.A. (N.S.) 1010; People v. Roach, 215 N.Y. 592, 109 N.E. 618, Ann. Cas. 1917-A 410; State v. Connors, 87 N.J.L. 419; Moon v. State, 198 P. 288; Lamble v. State, 114 A. 346; Commonwealth v. Albright, 101 Sup. Ct. 317; Garcia v. State, 229 P. 103.
Prohibition: Relators Reed and Kearney are, respectively, Chief of the Police Department of Kansas City, and Superintendent of the Technical and Record Division thereof, commonly known as the Bureau of Identification. By this original proceeding in prohibition they seek to prevent the respondent judge, Hon. Brown Harris, one of the judges of the Circuit Court of Jackson County, from entertaining jurisdiction of a pending injunction suit filed by respondent Root, as plaintiff, against relators, as defendants. The relief sought in said suit is that of enjoining the sending of police photographs and fingerprints of Root to various law enforcement agencies throughout the country, which photographs and fingerprints were taken and made while he was in the custody of relators, as police officers, on a charge of having violated a municipal ordinance relating to traffic upon the streets of Kansas City.
Contemporaneously with the filing of relators' petition for prohibition, respondents, by stipulation, entered their appearance and waived the issuance and service of our preliminary rule. The issues have been framed upon relators' petition and respondents' demurrer thereto, and the cause submitted on briefs. Root having been improperly joined as a respondent in this proceeding (State ex rel. v. Duncan, 333 Mo. 673, 63 S.W.2d 135; State ex rel. v. Bader, 336 Mo. 259, 78 S.W.2d 835; State ex rel. v. Barton, 300 Mo. 76, 254 S.W. 85; State ex rel. v. Sevier (Mo.), 92 S.W.2d 102), he will not be further noticed as such party in the course of this opinion.
The petition in the challenged suit, after setting out the official capacities of relators as hereinabove mentioned, and that plaintiff therein has never been convicted of any felony, alleges that plaintiff was on February 17, 1941, "arrested by two members of said Police Department, and taken to headquarters . . . where he was unlawfully and wrongfully fingerprinted and photographed; . . . that said defendants threatened to and will send said fingerprints and photographs to the Federal Bureau of Criminal Identification in Washington, D.C., and to the Bureau of Identification at Jefferson City maintained by the State Highway Patrol Department, and to other persons and places unless they are restrained and enjoined." The prayer is  that defendants be restrained and enjoined from so doing.
Respondent invokes the provisions of what is known as the "Criminal's Identification Law," Sec. 4184, R.S. '39 (Sec. 3794, Mo. Stat. Ann., p. 3314), which provides, "Any person convicted of a felony, which shall not be set aside or reversed, may be subjected by or under the direction of those in whose custody he is to the measurements, processes and operations practiced under the system for the identification of criminals, commonly known as the Bertillon signaletic system. Such force may be used as necessary to the effectual carrying out and application of such measurements, processes and operations; and the signaletic card and other results thereof may be published for the purpose of affording information to officers and others engaged in the execution or administration of the law."
It is contended in respondent's briefs that fingerprinting and photographing are parts of the Bertillon system, and, therefore, are included in the "processes and operations" authorized by the statute; but that since the statute applies only to convicted felons, it impliedly protects all other persons from subjection to such indignities, under the rule inclusio unius est exclusio alterius. He relies on State v. Baldwin (en banc), 317 Mo. 759, 297 S.W. 10, where, in reversing a criminal case for the reason, among others, that the State had been permitted to show defendant's picture was in the Bertillon room at police headquarters, the court, citing the statute, supra, said, "So, under the law (presumably known by all citizens) the defendant's picture was in the Bertillon room of the city of St. Louis, wherein it had no place, unless, under Section 4041 (now Sec. 4184, R.S. '39), he had been convicted of a felony and his conviction had not been reversed." Relators insist this is mere dictum, and, if it be not so regarded, they ask us to overrule the case.
The petition in the instant case sets forth the proceedings in the injunction suit, together with copies of the pleadings, including the amended answer and the reply, from which it appears that a demurrer to the petition has been overruled, and a temporary injunction issued. The amended answer contains, among other things, admissions (1) that defendants "have no knowledge, information or belief that plaintiff has ever been convicted of any felony; (2) that as a matter of normal routine in said department, said fingerprints and photographs, or copies thereof, will be sent by officers or employees of said police department to the" agencies referred to in the petition "and, on proper request, to any other official law enforcement agency which may ask for them." A plea to the jurisdiction is also incorporated in the amended answer, which plea sets up the grounds here urged for prohibition. The reply undertakes to plead a wrongful conspiracy on the part of defendants and other (unidentified) members of the department to photograph and fingerprint labor leaders in said city. Whether plaintiff is one of the persons against whom said conspiracy is directed does not affirmatively appear. It is not so alleged, nor is there an averment of his affiliation with any labor organization. It is elementary, of course, that plaintiff cannot recover on a cause of action stated only in his reply, and not in the petition, nor may he thus piece out a cause of action.
[2, 3] Relators contend the petition not only fails to state a cause of action, but that it cannot be amended to state one. Of course, the allegation that plaintiff "was unlawfully and wrongfully fingerprinted and photographed" is the statement of a mere conclusion. Nor is there any allegation that plaintiff has no adequate remedy at law. We think that, as drawn, it wholly fails to state a cause of action. But this does not mean that relators are entitled to prohibition unless, under the admitted facts, petitioner cannot state a cause of action. [State ex rel. Leake v. Harris, 334 Mo. 713, 67 S.W.2d 981; State ex rel. Castlen v. Mulloy, 331 Mo. 776, 55 S.W.2d 294; State ex rel. Massman Const. Co. v. Buzard, 346 Mo. 1162, 145 S.W.2d 355.]
The burden of relators' brief is in support of the proposition that photographing and fingerprinting are permissible practices as incidents of a lawful arrest. If this be conceded (a point which we do not decide), it is not necessarily dispositive of the case. The real point in controversy, under permissible amendments to the petition, would still remain, i.e., the matter of sending the photographs and fingerprints to other agencies — broadcasting them — to prevent which injunction is sought. In order to sustain relators it would be  necessary to hold not only that the discretionary right to photograph and fingerprint exists without express legislative authority, but also that there is to be implied therefrom the further discretionary right, in every case, and under any and all circumstances, to circulate the same to other agencies where they will be permanently kept and exhibited. In this connection, we observe that it must be apparent there is a marked difference between making an adequate record of the identity of a person lawfully in custody (a right vehemently asserted by relators and not controverted by respondent) and the dissemination of the photographs and fingerprints of an innocent person about whose identity there can be no question. We are asked, in effect, to hold that under no circumstances can threatened action of the nature here complained of be restrained, which is a step we are unwilling to take — at least at this stage of the proceedings, for reasons presently to be noticed.
We are satisfied that an action at law for damages would not be an adequate remedy. The damage, if any, flowing from the display of an innocent person's photograph in Rogue's galleries throughout the country, is or might be a continuing one, and not capable of any fair estimation or measurement by a money judgment. The remedy at law would be incomplete, less prompt and less efficient than resort to equitable relief, and, hence, would not constitute a bar to the latter.
Courts do recognize the right of innocent persons to the return of such records and exhibits. [14 Am. Jur., sec. 133, p. 857.] Now what facts Root might be able to allege and prove with respect to the use of his photographs and fingerprints (to say nothing of other elements going to make up his case) is something upon which we must decline to speculate. The case falls within the principle announced in State ex rel. v. Buzard, supra, where we denied prohibition, holding the petition there under scrutiny failed to state a cause of action, but disallowing the claim that under the admitted facts petitioner could not state a cause of action, and in so doing it was said, "We have only some isolated facts and not the whole picture." And so it is here.
It is strenuously urged that a court of equity has no jurisdiction to enjoin law enforcement officers where the complainant makes no claim that such officers threaten irreparable damage to his property rights, and that the facts alleged by Root do not constitute violation of property rights. This question may be dealt with more appropriately if and when it arises in the case on its merits, under such permissible amendments of the petition as may be made, and it is, therefore, reserved.
We do not need to go so far as hold that a cause of action can be stated, nor do we intend so to do. It is sufficient to say that, at this distance, we will not hold, on the admitted facts before us, that a cause of action cannot be stated. The views hereinabove expressed make it unnecessary to discuss the other contentions urged upon us by relators. The writer expresses the opinion that had the case arisen in the ordinary way, and without waiver of issuance of the preliminary rule, we would not have taken jurisdiction. Prohibition is a discretionary writ and where there is any doubt as to whether, on admitted facts, a defective petition can be amended so as to state a cause of action, it should not issue. Our preliminary rule having been improvidently issued, should be discharged. It is so ordered. All concur.