Ex Parte Gounis

Petitioner seeks release from confinement in the county jail of St. Louis County under an order of commitment issued by the circuit court of that county. The facts relative to the cause of his imprisonment as disclosed by the record are briefly these: On September 29, 1923, the Prosecuting Attorney of St. Louis County, purporting to act under authority conferred upon him by the National Prohibition Act, instituted an action in the circuit court of that county to enjoin a nuisance which it was alleged was being maintained by petitioner and others at certain premises in St. Louis County. The petition in that proceeding was entitled, "United States of America ex rel. Adam Henry Jones, Prosecuting Attorney of St. Louis County, Missouri, plaintiff, vs. Peter Gounis et al., defendants"; it charged the defendants, upon information and belief, with the maintenance of a nuisance in the language of Section 21, Title II, of the National Prohibition Act; it was verified by the relator on information and belief; and it prayed both a temporary restraining order and a permanent injunction. With the petition there was also filed the affidavit of one Russell, in which affiant stated that on a certain date he had purchased beer of defendants, and that on another date he had seen on the premises of defendants quantities of intoxicating liquor and a number of gambling devices. On October 10, 1923, without previous notice to defendants of the application therefor, a temporary restraining order was issued and served on them. On January 25, 1924, the petitioner, Gounis, was cited to show cause why he should not be punished for contempt of court, in having violated the temporary restraining order. On a hearing had on January 30th following the citation, he was found guilty of wilful contempt, and his punishment therefor was assessed at a fine of $700 and imprisonment in the county jail for a term of six months. Judgment and his commitment followed.

I. In this proceeding only questions of jurisdiction are involved. "Where a party who is in confinement under judicial process is brought up on habeas corpus, the court or judge before whom he is returned will inquire: Whether the court or officer issuing the process under which he isQuestions for detained had jurisdiction of the case and hasConsideration. acted within that jurisdiction in issuing such process. If so, mere irregularities or errors of judgment in the exercise of that jurisdiction must be disregarded on this writ, and must be corrected either by the court issuing the process or on regular appellate proceeding." [Cooley's Const. Limitations (4 Ed.) 430; Hartman v. Henry, 280 Mo. 478, 481.]

II. The petitioner contends that the entire proceeding in the Circuit Court of St. Louis County out of which the alleged contempt arose was coram non judice. The grounds of his contention broadly stated are that Congress is without power to appropriate state agencies, including its courtsJurisdiction of and officers, for the enforcement of nationalState Court. legislation, and that the State of Missouri by enacting a statute almost identical in terms with the National Prohibition Act thereby impliedly directed and limited the activities of its prosecuting officers in the enforcement of the Eighteenth Amendment to the methods, means and procedure provided in such statute.

Before examining the specific grounds upon which the petitioner predicates lack of jurisdiction in the Circuit Court of St. Louis County to entertain the proceeding in which he was adjudged guilty of a contempt, it will not be amiss to consider that proceeding in the light of certain general principles which have come to be accepted as settled constitutional law. Congress cannot confer jurisdiction upon the state courts; neither can it regulate or control their modes of procedure. [Houston v. Moore, 5 Wheat. 27; Martin v. Hunter, 1 Wheat. 334; Kent's Com. 395 et seq.] "There has been no surrender by the states of the right to establish their own courts, to define and limit their jurisdiction and functions, and to regulate and control them in all respects, except as to appellate jurisdiction, and as to subjects within the exclusive jurisdiction of the United States." [Rushworth v. Judges,58 N.J.L. 97, 101.] State courts cannot take cognizance of criminal offenses committed against the authority of the United States, or of actions for the recovery of penalties and forfeitures (wholly penal in character) arising under the laws of the United States. With respect to civil actions the jurisdiction of the State and Federal courts may be concurrent. In cases arising under the Constitution, laws and treaties of the United States, if exclusive jurisdiction in the United States courts be neither express nor implied, "the state courts have concurrent jurisdiction whenever, by their own Constitution, they are competent to take it." [Claflin v. Houseman, 23 U.S.L. Ed. 833.] Expressed in another way: "State courts, may, in the exercise of their ordinary, original and rightful jurisdiction, incidentally take cognizance of cases arising under the Constitution, laws and treaties of the United States." [1 Kent, 397; Ward v. Jenkins,51 Mass. 583.] The injunction suit which gave rise to the present proceeding was bottomed on a Federal statute. The petition in that cause recited that it was filed by the Prosecuting Attorney of St. Louis County "pursuant to authority thereto granted by Sec. 22, Title II, National Prohibition Act, and for the purpose of enjoining and abating a certain public and common nuisance as defined in Section 21, Title II, of said Act of Congress." Sections 21, 22 and 24 of the Act referred to, so far as pertinent to the present consideration, are as follows:

"Sec. 21. Any room, house, building, boat, vehicle, structure, or place where intoxicating liquor is manufactured, sold, kept or bartered in violation of this title, and all intoxicating liquor and property kept and used in maintaining the same, is hereby declared to be a common nuisance. . . . .

"Sec. 22. An action to enjoin any nuisance defined in this title may be brought in the name of the United States or by the Attorney-General of the United States or by any United States attorney or any prosecuting attorney of any State or any subdivision thereof or by the commissioner or his deputies or assistants. Such action shall be brought and tried as an action in equity and may be brought in any court having jurisdiction to hear and determine equity cases. If it is made to appear by affidavits 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 from conducting or permitting the continuance of such nuisance until the conclusion of the trial. . . . No bond shall be required in instituting such proceedings.

"Sec. 24. In the case of the violation of any injunction, temporary or permanent, granted pursuant to the provisions of this title, the court, or in vacation a judge thereof, may summarily try and punish the defendant. The proceedings for punishment for contempt shall be commenced by filing with the clerk of the court from which such injunction issued information under oath setting out the alleged facts constituting the violation, whereupon the court or judge shall forthwith cause a warrant to issue under which the defendant shall be arrested. The trial may be had upon affidavits, or either party may demand the production and oral examination of the witnesses. Any person found guilty of contempt under the provisions of this section shall be punished by a fine of not less than $500 nor more than $1,000, or by imprisonment of not less than thirty days nor more than twelve months, or by both fine and imprisonment." [41 U.S. Statutes at Large, 314, 315.]

The essential objective of the quoted provisions of the statute was to declare any place where intoxicating liquor is manufactured, sold, kept or bartered in violation of its provisions a public nuisance. The circuit courts of this State as courts of general equity jurisdiction have full power to enjoin the maintenance of a public nuisance which affects the health, morals or safety of the community. And this is so whether the wrongs and injuries constituting such a nuisance are so denominated at common law or by statute. [State ex rel. v. Canty, 207 Mo. 439; State v. Tower, 185 Mo. 79; State ex rel. v. Houck, 246 S.W. 303.] When therefore places in the State of Missouri where intoxicating liquor was manufactured or sold became, by virtue of the act of Congress, public nuisances, they could at that instant be suppressed by injunctions issued by the circuit courts of the State "in the exercise of their ordinary, original and rightful jurisdiction." Consequently there can be little question but that the Circuit Court of St. Louis County had full jurisdiction, so far as subject-matter was concerned, of the action prosecuted in the name of the United States against the petitioner here. Whether that jurisdiction was properly invoked by the United States, in other words, whether it was a proper party plaintiff, cannot be considered in this proceeding. Defect of parties, if it exists, can beDefect of corrected on appeal or writ of error. It does not goParties. to the power or jurisdiction of the court. [State ex rel. v. Zachritz, 166 Mo. 307, 314; State ex rel. v. So. Ry. Co., 100 Mo. 59; Bowman's Case, 67 Mo. 146.]

III. As heretofore stated the action brought against petitioner to enjoin the maintenance of a public nuisance was based upon an act of Congress. And while the Circuit Court of St. Louis County had jurisdiction of the class of cases to which it belonged, it was bound to exercise that jurisdiction in conformity with the laws of this State. The petition filed in the injunction suit and the subsequent proceedings had therein strongly indicate that the court endeavored to, and did, literally follow the procedure outlined by the National Prohibition Act. Notwithstanding, those proceedings, so far as the record here affirmatively shows, did not transcend in any respect the jurisdictional limitations prescribed by the law of the State relating to the issuance of injunctions. When we say the record does not affirmatively show any act in excess of jurisdiction, we do so advisedly. It is entirely silent with respect to the filing of a bond, which was a condition precedent to the issuance of the temporary restraining order. It is expressly provided by Section 1957, Revised Statutes 1919, that no injunction, unless on final hearing or judgment, shall issue in any case, except in suits instituted by the State in its own behalf, until the plaintiff, or some responsible person for him, shall have executed a bond with sufficient surety, etc. The injunction suit against petitioner was not instituted by the State of Missouri, nor in its behalf. It was brought in the name and on the behalf of the United States. In bringing it Henry Adam Jones was acting not in his official capacity as prosecuting attorney of St. Louis County, but as the agent and attorney of the United States. If, therefore, the temporary restraining order was issued without the giving of a bond conditioned as the statute provides, it was void. [State ex rel. v. Foard, 251 Mo. 58; State ex rel. v. Lamb,237 Mo. 447; State ex rel. v. Williams, 211 Mo. 227.] But as the St. Louis County Circuit Court is a court of general jurisdiction and the case with which it was dealing was one which fell within that jurisdiction, we are bound to presume, in the absence of a showing to the contrary, that it required a bond to be given before making effective its restraining order, because the law required it so to do. Omnia praesumuntur rite et solemniter esseacta.

The petitioner's complaints, that the temporary restraining order was issued without sufficient proof to show prima-facie that the allegations of the petition for an injunction were true, and that it was issued without previous notice to him of the application therefor, both relate to matters of error and not jurisdiction. It has been expressly held that in cases other than those to stay proceedings falling within the purview of Section 1952, Revised Statutes 1919, jurisdiction, in the sense of power to act, in the granting of a preliminary injunction, is not conditioned upon a showing of previous notice of the application therefor, given to the defendant. [State ex rel. v. Woodside, 254 Mo. 580, 591.]

IV. We entirely agree with the petitioner that Congress is without power to compel the state courts to assume jurisdiction of actions brought to enforce the provisions of the National Prohibition Act. If the United States can institute such actions in state courts by a county prosecuting attorney,Duty of it can do so by the Attorney-General of the UnitedState Courts. States or any United States attorney; and if the state courts are bound to entertain jurisdiction in such actions, then the entire burden of enforcing the National Prohibition Act, so far as it can be done through the prosecution of civil actions, can be transferred from the courts of the United States to those of the states. In such event the state courts through the stress of national business would cease to function locally. In this connection what is said by the Supreme Court of New Jersey in Rushworth v. Judges, supra, is in point:

"If Congress has, without the consent of the State, the power to impose such a duty upon the state courts, there is no legal limit to the authority of the national legislature to burden the state courts with such a volume of business as to essentially impair their capacity to exercise the judicial functions for which they were created by the State.

"The inability of congress thus to fetter and disable the instrumentalities provided by the State for carrying on the operations of its own government, was the ground upon which the power of the Federal Government to lay an income tax upon the salaries of the state judiciary was denied in Collector v. Day, 11 Wall. 113.

"Chancellor Kent, in his Commentaries, says that in Houston v. Moore, 5 Wheat, 1, the Supreme Court disclaimed the idea that Congress could authoritatively bestow judicial powers on state courts. In that case it is said that it is perfectly clear that Congress cannot confer jurisdiction upon any courts but such as exist under the Constitution and laws of the United States, although the state courts may exercise jurisdiction in cases authorized by the laws of the State and not prohibited by the exclusive jurisdiction of the federal courts.

"The learned author declares that in the case last cited, the judges of the Supreme Court very clearly intimated that the state courts were not bound in consequence of any act of Congress to assume and exercise jurisdiction in such cases, and he regards the doctrine as well founded that Congress cannot compel a state court to entertain jurisdiction in any case. [1 Kent, Com. 399, 400, 402.]

"Such has been the view adopted by state courts, where the question has been involved. [Haney v. Sharp, 1 Dana (Ky.) 442; Ex parte Pool, Va. Cas. 276.]

"The national courts have recognized their want of authority in cases not within the appellate jurisdiction of the United States, to issue injunctions to the state courts, or in any other manner to interfere with their jurisdiction or proceedings. [Diggs v. Wolcott, 4 Cranch, 179.]

"`The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people.' [U.S. Const. Amend., art. 10.]"

In the second Employers' Liability Cases, 223 U.S. 1, 58, the Supreme Court of the United States held that "the existence of . . . jurisdiction creates an implication of duty to exercise it, and that its exercise may be onerous does not militate against that implication." The court in those cases, however, was considering "the question of the duty of such a (state) court, when its ordinary jurisdiction as prescribed by local laws is appropriate to the occasion and is invoked in conformity with those laws, to take cognizance of an action to enforce a right of civil recovery arising under an act of Congress and susceptible of adjudication according to the prevailing rule of procedure." And the right of civil recovery it had in mind was a private right as distinguished from one pertaining to the general public. Where an act of Congress, such as the National Prohibition Act, is designed to suppress a public evil, it is clearly the duty of Congress to provide efficient national instrumentalities, including courts, for its enforcement. It cannot impose that burden or any part of it upon the state courts; nor is there in any case an implication of duty on the part of a state court to lend its jurisdiction to the enforcement of the laws of the United States in behalf of the United States. That duty devolves wholly upon the courts of the United States, which were created for the purpose of maintaining in part its sovereign authority.

The State of Missouri has the power, concurrent with but wholly independent of that conferred upon the United States, to enforce the Eighteenth Amendment, within its boundaries. [United States v. Lanza, 43 Sup. Ct. Rep. 141; National Prohibition Cases,253 U.S. 350.] And this it has undertaken to do. Its Legislature has provided remedies to that end just as complete and just as drastic as those found in the Act of Congress. There is no apparent reason therefore for the State's prosecuting officers to institute, or its courts to entertain, actions under the Federal law for the enforcement of constitutional prohibition. If in the proper exercise of their respective powers and prerogatives they effect enforcement of the state law they will have discharged in full measure the duties severally incumbent upon them in that behalf.

Congress has not, however, attempted to compel the state courts to entertain jurisdiction in actions arising under the National Prohibition Act. It has merely permitted such of them as are competent for the purpose, and have an inherent jurisdiction adequate to the case, to entertain suits in equity for the abatement of liquor nuisances. With respect to such suits, state courts of first instance, in the absence of a state prohibition, may determine for themselves whether their duty requires them to assume jurisdiction.

V. It is contended by the petitioner that the Legislature of this State by the enactment of a law which is almost a rescript of the National Prohibition Act intended toThe Missouri restrict the actions of its courts and itsStatute. prosecuting officers in the enforcement of the Eighteenth Amendment to the remedies afforded by that law. At the time the present State Prohibition Statute was passed, in 1921, the National Prohibition Act was in force, declaring places where intoxicating liquor was manufactured, sold or bartered in violation of its provisions to be public nuisances, and providing that certain state and federal officers, including state prosecuting attorneys, might bring actions for their abatement, in the name of the United States, in any court having jurisdiction to hear and determine cases in equity. The Missouri statute followed almost literally the national act in declaring in one section the nuisance and in another prescribing the remedy for its suppression. It differed only in providing that suits of injunction might be brought in the name of theState of Missouri by any prosecuting attorney or circuit attorney of any county or city in the State. Its language in so far as it constitutes a direction to the state's prosecuting officers in the employment of such civil action as a means of prohibition enforcement is permissive and not mandatory. It contains no expression limiting the civil remedy to the one provided by it, or prohibiting prosecuting attorneys from employing any other, although the Legislature must at the time have known that under the Act of Congress county prosecuting attorneys were authorized to bring in state courts of competent jurisdiction actions in the name of the United States for the suppression of the same evil. It is clear under well settled rules of construction that the remedy provided by the state statute must be deemed cumulative and not exclusive. [Endlich on the Interpretation of Statutes, sec. 467.]

This case presents for the first time the question of whether the circuit courts of this State can take cognizance of civil actions arising under the National Prohibition Act. For that reason we have endeavored to consider it from every angle pointed out by counsel or suggested by the record itself; otherwise, it could have been much more summarily disposed of. We hold that the Circuit Court of St. Louis County had jurisdiction of the action brought against the petitioner to enjoin the maintenance of a public nuisance, and that none of its orders which culminated in the commitment for contempt was, so far as the record here affirmatively shows, in excess of its jurisdiction. It follows that the petitioner must be remanded. It is so ordered. All concur; Graves, C.J., in separate opinion in which James T.Blair, Walker, White and Woodson, JJ., concur.