author: CRAVES, J.

text:
    HARRY W. SWINHART v. ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant.
    Division One,
    November 27, 1907.
    1. RAILWAY: Construction in Street: No Consent: Duty of Plaintiff to Prove. In a suit by owners of property abutting on a public road in a county, to enjoin the use of a railway constructed therein by a railway corporation and to require its removal, it is not incumbent on the plaintiffs to make proof of their negative allegation that the county court had not given its consent to the construction of the railway in the public highway. Without such permission defendant is a trespasser, and the duty -to show that permission is upon defendant.
    2. NEGATIVE ALLEGATIONS: Proof: Civil Case. A negative allegation, the subject-matter of which lies peculiarly within the knowledge of the defendant, will be taken as true without proof, unless disproved by defendant. And this rule applies to civil as well as criminal, cases. So where it is alleged, in an injunction suit, that defendant constructed its street railway in a public highway without the permission of the county court, that averment will be taken as true, without proof thereof on plaintiff’s part, unless disproved by defendant.
    3. APPROPRIATION OF HIGHWAY: Injunction: Remedy at Law. Where the evidence tends to show that by reason of the manner of its construction of a railway in a public street and the use to which defendant put it, the practical usefulness of the street to the owners of the abutting property was destroyed, there is no adequate remedy at law, and the equitable remedy, of an injunction against the irailway company to enjoin the further use of its tracks so laid and to require their removal, is the proper one.
    4. --: -: Trespasser. So likewise is injunction the remedy where defendant is a trespasser. In such case defendant has no standing in court to complain of the remedy invoked by plaintiffs, or to contend that they have a remedy at law.
    5. -: Protests: Estoppel. A failure of plaintiffs to protest against the appropriation of the public highway is but one element tending to establish estoppel.
    6. -: -: -: Must Be Pleaded: Modification of Rule. Estoppel is an affirmative defense and must be pleaded. And where the petition charged that the street railway was built in the public highway over the protest and objections of plaintiffs, and there was no proof of that allegation, and the answer was a general denial, defendant cannot on appeal insist on this failure of proof, nor insist that plaintiff® are estopped by their acquiescence in defendant’s trespass ' by permitting nearly two years to pass before urging active complaints and objections. And whether or not the rule that estoppel must be specially pleaded has been so modified as to estop respondent on appeal to insist on the trule, by the fact that both sides tried the case as if such estoppel were pleaded, the rule still remains in force where the evidence shows the case was not so tried, but that the evidence as to protests was introduced upon another pertinent issue in the case.
    7. -: Decree. Where defendant has no legal right to use the public highway for its street railway, the couirt should not by its decree permit it to use a part of it, but should compel it to remove the obstruction entirely.
    Appeal from St. Louis County Circuit Court. — Now. John W. McElhinney, Judge.
    Affirmed.

      Boyle <& Priest and T. M. Pierce for appellant.
    (1) The court erred in not dismissing the petition of the plaintiff: (a) Because there was a failure on the part of plaintiff to prove material and necessary allegations in his petition, in that he failed to show that the track of defendant was laid without the authority of the county or State and against his own protest and objection. G-reenleaf on Evidence (14 Ed.), secs. 74 and 80; Bank v. Dandridge, 12 Wheat. 64; 1 Jones on Evidence, sec. 50; State ex rel. v. Kupferle, 44 Mo. 158; Ins. Co. v. Smith, 73 Mo. 371; Chouteau v. Railroad, 122 Mo. 384; Wyrich v. Railroad, 74 Mo. App. 417; State ex rel. v. Hudson, 86 Mo. App. 501 ; Clements v. Macheboeuf, 92 U. S. 425; Pringle v. Woolworth, 90 N. T. 510'. (b) Because, on the pleadings and evidence, plaintiff was shown to have a complete and adequate remedy at law. Planet Prop. & Fin. Co. v. Railroad, 115 Mo. 613; Restetsky v. Railroad, 106 Mo. App. 382; Walker v. Railroad, 57 Mo. 275; Stephenson v. Railroad, 68 Mo. App. 642; Lockwood v. Railroad, 122 Mo. 101; Lumber Co. v. Railroad, 129' Mo. 455; Knapp, Stout & Co. v. Railroad, 126 Mo. 38; State ex rel. v. Railroad, 86 Mo. 14; Dnbach v. Railroad, 89 Mo. 488; R. S. 1890, sec. 9454; Osborne v. Railroad, 147 IT. S. 259. (c) Because, by acquiescence and laches, plaintiff is estopped from disturbing de-' fendant in the operation and maintenance of its track. High on Injunctions (2 Ed.), secs. 643, 637 and 786; Childs v. Railroad, 117 Mo'. 432. (2) The court erred in refusing to modify its decree and permit defendant to so place its track on Horton Place as to avoid any possibility of interference with tbe rights of tbe plaintiff as adjacent owner. Paddock v. Somes, 102 Mo: 226; Carlin v. Wolff, 154 Mo. 543; State ex rel. v. Dearing, 180 Mo. 53; Yudes v. Foundry Co., 124 Mo. 347.

      Leverett Bell for respondent.
    (1) Tbe burden of proof is on appellant to show that it was authorized by the State or by tbe county of St. Louis to lay, maintain and operate its railway track in Horton Place. R. S. 1899', sec. 1035; State Const., sec. 20, art. 12; State v. Lipscomb, 52 Mo. 32; State v. Edwards, 60 Mo. 490. (2) Respondent has no complete or adequate remedy at law for the injuries complained of in this case. R. S. 1899, sec. 3469; Lockwood v. Railroad, 122 Mo. 101. (3) Respondent is not estopped by acquiescence and lacbes from prosecuting- this action. There is nothing in tbe testimony showing lacbes or acquiescence on tbe part of respondent. Bales v. Perry, 51 Mo. 449'. Tbe answer is a general denial. No estoppel is pleaded. No lacbes on tbe part of plaintiff is averred. Estoppel if relied upon must be pleaded. Bray v. Marshall, 75 Mo. 327; Noble v. Blount, 77 Mo. 235.
   CRAVES, J.

— One could adopt the statement made of this case by counsel either for plaintiff or defendant, and not be far wrong. However, with a view to brevity, and to bring out one or two. salient features a little more fully, we do not so do, but attempt the task ourselves.

Plaintiffs are abutting property-owners on the north side of Horton Place shown to be a public thoroughfare, sixty feet in width. Horton Place extends over and across the corporate line separating St. Louis county and the city of St. Louis, and is therefore both in the city and county of St. Louis; but plaintiff’s property lies in the county of St. Louis. The real situation, with the location of the. property, is best shown by the plat thereof which was introduced in evidence :

From this plat and other evidence it appears that prior to 1901, the defendant, a street railway company, had and still has its line of street railway running from the city of St. Louis to points in St. Louis county. Prior to 1901 the three plaintiffs owned lots 11 and 12 as indicated on the plat. In 1901 the defendant built a single track, near the crossing of DeHodiamont avenue, up through Horton Place, to the Wabash Railroad tracks on the west. The defendant owned property on both sides of Horton Place for the purposes indicated and marked on this plat. This single track in Horton Place was not used for defendant’s regular business of carrying passengers, but was used to reach the shops and car sheds owned by it, and in bringing cars and material thereto. This rendered Horton Place practically a car yard. In February, 1903, the shops of defendant were almost entirely destroyed by fire, and shortly thereafter, work of bringing in material for the rebuilding of the shops began, and Horton Place, more than ever,, became a car yard, on account of storing ears of material upon the street. June 2, 1903, these plaintiffs filed their bill in equity, wherein, among other things, is charged:

“That all of said property is improved with dwelling houses erected by plaintiffs, fronting on said Place, and occupied by plaintiffs and their tenants, as places of residence, and that access of said property to Horton Place is an important element in its value. That the defendant is a railway corporation organized, created and existing under the law of the State of Missouri, and is engaged in operating an electric railway in the city and county of St. Louis, for the transportation of passengers. That Horton Place possesses a width of sixty feet. That after the plaintiffs had acquired the property aforesaid, the defendant, to-wit, about the year 1901, without any authority of law and without permission of the county of St. Louis or State of- Missouri, and against the protest and objection of the plaintiffs, proceeded to and did lay and construct a railway track along, in and upon Horton Place aforesaid, in front of plaintiffs’ said property, connecting the main line of the defendant in the city of St. Louis with the Wabash Railway at Vendóme avenue in the county of St. Louis, and said defendant without any authority proceeded to erect poles in said street supporting electric wires, which it»employs in moving cars upon said track, and the defendant has since and is now engaged in operating and switching and storing cars on said track, and the maintenance and operation of said track and wires and poles and cars in said Horton Place as the same are now being pursued and carried on by the defendant, hinders and prevents the public and the plaintiffs from using the street, and excludes all vehicles from the street and destroys the use of the street as a public thoroughfare, all of which under the law of the land is without legal justification or excuse. That by the' construction, maintenance and operation of said track on Horton Place, between the points named, the property above mentioned, owned by the plaintiffs, is greatly depreciated and damaged in its selling and rental value, and will hereafter be greatly diminished and lessened and that the damages that have and will accrue to the plaintiffs by reason of the matters aforesaid differ in degree and kind from those which have and will result to other members of the community or to the public at large from the same causes.
“Plaintiffs pray that the defendant, its officers, agents and servants, may be forever enjoined from operating said track with cars, and that they be enjoined and compelled by the order of this court to remove said track and poles and wires from Horton Place between the points named,, and that plaintiffs may have such other relief as they are entitled to and their costs in this behalf expended.”

The answer of defendant was a general denial. The evidence disclosed that there were dwelling houses upon each of the lots, designated in the plat by number and name, being some four in addition to the plaintiffs’. It also showed that the only practical way in and out of Horton Place was at the east. That the way over and across the Wabash Railroad tracks was impracticable and not then in use; that the street railway track was constructed on or about the center of Horton Place, by putting the ties upon the surface of the ground, and then the rails thereupon; that by such construction it was difficult to cross this track; that cars, both street railway and some from the Wabash Railroad, were continuously being stored and permitted to stand upon this track. There was also evidence of the depreciation of the property of plaintiffs in value, by reason of the fact that this car line was maintained there, and used in the way it was used, as was there also evidence of the great inconvenience suffered by the plaintiffs and other occupants of the residence property on the north side of Horton Place.

After hearing the evidence, the trial court entered a decree for plaintiffs in this language:

“This cause coming on to be heard on the pleadings and the evidence adduced and being submitted to the court, and the court being now fully advised of and concerning the same, the court doth find and determine the issues herein in favor of the plaintiffs, and doth thereupon order, adjudge and decree that the defendant be enjoined and restrained from operating the railway track in Horton Place, in St. Louis county, Missouri, between Vendóme avenue on the west and the county line on the east, with cars, and from standing and switching and storing cars on said track between said points; and that within ninety days from the date hereof, the said defendant is enjoined and commanded to remove from said Horton Place, between the points named, the said railway track and all poles and electric wires placed, employed or adapted to the purpose of moving cars thereon; and further, that the plaintiffs recover of the defendants their costs in this behalf expended, and have execution therefor; provided, however, that pending the hearing and determination of a motion for new trial in this case, if any be filed, the enforcement of this decree be stayed and suspended.”

Motion for new trial was filed, heard and overruled, whereupon defendant by motion asked the court to modify the decree which motion to modify reads:

“Now at this day comes the defendant herein and moves this honorable court to modify its decree granting an injunction herein so as to permit defendant to use its tracks on said street after removing the same to the south boundary thereof so that said track when removed shall not occupy to exceed fifteen feet of said street exclusive of the south sidewalk thereof; on condition that defendant promptly take an appeal in this case and prosecute the same with due diligence and on condition that no obstruction of said street north of the center thereof shall be made by defendant pending the appeal of this case and on condition that defendant give an appeal bond to be fixed by this court. ’ ’

This motion being likewise overruled, the defendant in due time and form perfected its appeal to this court. Points made by defendant will be stated and considered in their order.

I. The first point made by the defendant' is that the court upon the close of the evidence should have dismissed plaintiffs’ bill. “Because there was a failure upon the part of plaintiffs to prove material and necessary allegations in their petition, in that they failed to show that the track of the defendant was laid without the authority of the county or State and against their own protest and objection.”

Briefly stated, defendant contends that plaintiffs should have proved affirmatively that defendant had not been granted authority either by the State or county to construct its street railroad in Horton Place, a public thoroughfare, and further should have affirmatively proven that plaintiffs had protested against the action of the defendant in the building of the said street railroad.

Was it incumbent upon the plaintiffs to make proof of the negative allegation or averment that no assent had been given by the county court of St. Louis county to the action of defendant in building its said street railroad, or was it incumbent upon defendant to show its right of occupancy by showing the action of the county court in giving such assent? This is the question before us. The portion of the road involved is or was in St. Louis county.

Our Constitution, section 21, article 12, provides: “No law shall be passed by the General Assembly granting the right to construct and operate a street railroad within any city, town, village, or on any public highway, without first acquiring the consent of the local authorities having control of the street or highway, proposed to be occupied by such street railroad.”

Section 1035', Revised Statutes 1890, provides: “Nothing herein contained shall be construed to authorize . . . the construction of any railroad . . . upon or across any street in a city or road of any county, without the assent of the corporate authorities of said city, or the county court of such county.”

These provisions of the law have the double purpose of protecting the property-owner and the public. The county court of the several counties have control of the public roads of the county in the interest of the public, but likewise have in hand the property-owner as a part of that public. To such a body the law wisely gives the power to grant such privileges, if such are granted, for the use of the public highways, other than the usual and ordinary uses thereof. The abutting property-owners have no right to. authorize such a use of the public highway. This question we will discuss later. Now to revert to the question first stated. Was it the duty of plaintiffs to make the proof of the negative allegation that the county court had not given its assent to the construction of defendant’s street railroad in this public highway? We think not. We think that it was incumbent upon the defendant to have shown this assent, for without such assent, defendant was a trespasser pure and simple. [State ex rel. Titus v. Railroad, 206 Mo. l. c. 263.]

This assent of the county court is in the nature of a license granted by the court to the defendant to use the public highway in the transaction of its business, which business, under the law, is public in character. To so use the street or highway, without this license or assent, is unlawful. With the assent or license, it becomes lawful. The averments in this petition as to want of authority from the State or county, are in their nature negative averments. In State v. Lipscomb, 52 Mo. 32, we said: “A license must be shown by a party claiming its protection. When the subject-matter of the negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party. Such is the case in civil or criminal prosecution for a penalty for doing an act which the statutes do not permit to be done by any person except those who are duly licensed therefor; as for selling liquors, exercising a trade or profession, and the like.”

This doctrine is reaffirmed in State v. Edwards, 60 Mo. 490, and in criminal cases is, and since these cases has been, the established rule in Missouri. Nor has this court confined the rule to criminal cases as defendant would have us believe. In the early case of State to use v. Schar, 50 Mo. l. c. 394, an action upon a constable’s bond, charging failure to return an execution, we said: “The general rule is that he who alleges an affirmative is bound to prove it. But there are some exceptions to this rule. "Where the plaintiff grounds his right of action upon a negative allegation, and the proof of the affirmative is not peculiarly within the knowledge and power of the other party, the establishment of this negative is an essential element of the plaintiff’s case. "Where, however, the subject-matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party. [1 Greenl. Ev., sec. 79.]” Along the same line are a number of cases from several States, cited in 20 Cent. Digest, columns 201 and 202, secs. 114, 115.

From them all is to be deduced that generally the burden is upon the plaintiff to make out his case. That if in the statement of his case, negative averments are required, and the proof of such negative averments is not peculiarly within the knowledge and power of the defendant, then plaintiff must affirmatively establish such negative averments, but if, on the other hand, the proof of such negative averments lies peculiarly within the knowledge or power of the defendant, then such negative averments will be taken as true unless the defendant speaks and disproves them. Of course, if the knowledge and power to produce the evidence is possessed equally, the plaintiff must make the proof. [People v. Nedrow, 16 Ill. App. l. c. 192; Bonney & Bonney v. Ketcham, 51 Ill. App. l. c. 321.]

In the case at bar, defendant was prohibited by law from constructing its railroad in a public highway, without first obtaining the assent of the county court, as is an individual prohibited from selling liquor without the assent of the county court in the shape of a license. In both cases the privilege to do the act requires the action of the county court. In both cases the act is in violation of express law unless favorable action is taken by the county court. In both cases the plaintiff’s pleadings necessarily contain negative averments. Then why should the order of proof be different? We see no reason. The defendant in this case has just as much peculiar knowledge of the fact as to. whether or not it applied to the county court for a grant of a privilege to use a public highway and received the assent of such court, as has the individual as to whether or not he has applied to and received from the same body an assent or license to sell liquor. We hardly think Bank of United States v. Dandridge, 12 Wheat. 64, and other cases following it and relied upon by defendant, discuss the real question in this case.

We therefore conclude that the negative allegations or averments were properly taken as true under the facts of the case.

II. It is next insisted that the plaintiffs have complete and adequate remedy at law. There is ample evidence in this record tending to show that by reason of the manner of its construction and the use to which this railroad was put, the practical usefulness of this street, to the abutting land-owners, was destroyed. From the evidence the trial court could have easily so found. In such case there is no adequate remedy at law and the equitable remedy here sought is the proper one. [Lockwood v. Railroad, 122 Mo. l. c. 101.] And in Schopp v. St. Louis, 117 Mo. 131, it is further held that such use of a street amounts to a nuisance, both public and private, and that abutting property-owners eonld maintain injunction. The use shown by the evidence in this record before us is not the ordinary use made by a street railway company of a street, but it amounted practically to making the street a car and material yard. Cars and materials were left for great length of time standing on the street and in and near the property of the plaintiffs and other abutting owners.

But a sufficient answer to all of this question rests in the fact, that so far as this record shows, the defendant was occupying this street without legal authority. It was a trespasser each succeeding hour and minute. It was violating the law at all times, and under such circumstances it hardly lies within the mouth of ■defendant to say that, although my unlawful acts are a continual menace to you and your property, you have your action at law for damages. If defendant had lawfully entered the street, the cases relied upon by it would be in point, but we hardly think SO' in this case. Without showing some legal right to be occupying the street in question, the defendant has no standing in court.

III. As previously stated, one of the allegations in plaintiffs’ petition was that this railroad was built in Horton Place over the protests and objections of the plaintiffs. Defendant contends that there was failure of proof on this allegation, and that therefore plaintiffs’ bill should have been dismissed. Defendant further contends that by reason of acquiescence and laches plaintiffs are estopped from now disturbing the possession of defendant. We thought best to consider these two questions together and will do so. As to the failure of the record to show that the plaintiffs protested, that would be but one element tending to establish estoppel, so that we only have for real consideration the question of estoppel as now urged by the defendant. The only evidence of estoppel, if that be considered such, is the mere fact that the road was built and operated nearly two years before active complaints and objections were urged. The whole question is disposed of by the pleadings. Defendant answered by a general denial. Estoppel is an affirmative defense and must be pleaded.

In Bray v. Marshall, 75 Mo. l. c. 330, this court said: “No error was committed by. the court in refusing to consider the facts offered by the defendant for the purpose of establishing an estoppel in pais. No such defense was pleaded, and even if the testimony offered were sufficient for that purpose, which we do not decide, it was properly excluded from the consideration of the court and jury.”

Again, in Noble v. Blount, 77 Mo. l. c. 242, we find this language: “Nor was there any issue tendered in the pleadings to authorize such evidence or instructions. Estoppel in pais must be specially pleaded.”

This broad doctrine as above announced continued in full force in this State up to and including the case of Casler v. Gray, 159 Mo. l. c. 595, where we then said: “It is also insisted that as certain bequests were made to the plaintiff John Casler by the will of his wife, which he received, he cannot take under the will, and at the same time claim curtesy in her real estate. It is sufficient to say with respect to this contention, that it could only operate by way of estoppel, which in order to be available must be pleaded.”

However, in Price v. Hallett, 138 Mo. 561, in an opinion by Gantt, P. J., there was a modification of the rule to the effect that where the evidence was admitted without objection and such evidence instructed upon, and the parties had full opportunity to meet the issues, it was too late to raise the question in this court. In the Price case, supra, the case was tried as if the plea of estoppel was in the case, as lawyers frequently try cases as if a reply was in, when in fact none had been filed. Judge Gantt makes this suggestion in the opinion. The Price case has been followed by the latter case of McDonnell v. Bldg. Assn., 175 Mo. l. c. 275, in an opinion by Burgess, J.

But grant it that there has been a modification of the rule, such modification certainly only goes to the effect that the case below must have been tried as if the formal plea of estoppel in pais was actually on file, and if so tried, then the other party could not raise the question of pleading. But a reading of the evidence taken does not show that this ease was so tried. Most of the evidence which would in any way tend to prove estoppel was introduced upon another pertinent issue in the case. Under such circumstances this case falls under neither the old rule nor the modification thereof, if we say there has been or should be a modification.

At most the evidence shows mere silence, and this is insufficient.

. IV. Lastly, it is argued that the trial court erred in refusing to' modify its decree in conformity to the request made by it in the motion to modify. In view of the fact that the defendant failed to show any right to occupy the road at all, there was no error upon the trial court in refusing to modify its decree. To have so. modified the decree giving defendant the right to use the south part of the road instead of the center portion thereof, would have been granting the defendant an unauthorized right. The circuit court would have been usurping the powers possessed only by the county court. The modification was therefore properly refused.

It follows from these views that the case has been properly tried, and the judgment should be and is affirmed.

All concur.


source: Caselaw Access Project

author: WOODSON, J. VALLIANT, P. J. LAMM, J.

license: Public Domain

text:
    THE STATE ex rel. CROW, Attorney-General, Appellant, v. DENNIS CANTY et al.
    Division One,
    November 27, 1907.
    1. PUBLIC NUISANCE: Injunction: In Circuit Court: By Attorney-General. An injunction suit, in the name of the State at the relation of the Attorney-General, to enjoin a continuing public nuisance, is properly brought in the circuit court of the county where the nuisance is maintained.
    2. -■: What Is? Any act which is an offense against the public order, common good and public 'decency or morals, or any public exhibition which tends to corrupt the morals, to disturb the peace or the general good order and welfare of society, is a public nuisance, as are all exhibitions the natural tendency of which is to pander to vicious and disorderly members of society.
    3. -: Bull-Fight. A public bull-fight, at which men and ferocious bulls are made to fight with each other, bulls are baited and men are injured, in the presence of large gatherings of people, is a public nuisance.
    4. -: -: Swords: Punishment of Animals. And the fact that matadors are not armed with swords does not make it any the less a nuisance, but rather makes it more so, for danger to the men is thereby increased, in that their power to defend themselves is lessened. Nor does the immunity of the bulls from punishment in any manner or degree lessen the interest of the State in the lives- and limbs of men engaged in a struggle with the infuriated beasts.
    5. -: -: Presence of Lawless Persons. Among the greatest evils connected with bull-fights, in an inclosed arena, is their natural tendency to draw large crowds of lawless, viciouis, criminal and turbulent persons to that one center, and the consequent contaminating effect upon the youth of the locality. And where they are held in a great city, at the time of a great exhibition, those evils are greatly enlarged.
    6. ->: Injunction. A couirt of equity has authority to .enjoin the continuance of a public nuisance.
    7. -: -: Crime. A court of equity will not undertake to enforce the criminal law; therefore, it will not enjoin the commission of a threatened act, which, if committed, would be only a crime. But it has power to enjoin a public nuisance, and if the threatened act is a public nuisance a court of equity will enjoin it, although the act besides being a nuisance is also a crime.
    8. -: -: -: Trial By Jury. A man who has not yet acted, but who proposes to commit an act which is not only criminal in its character but also flagrantly offensive as a public nuisance, has no constitutional right to commit the act in order that he may' thereafter enjoy the constitutional right of a trial by jury.
    9. -: —i-: Corporation and Individuals. Where a corporation is guilty of hatching and maintaining a public nuisance, to-wit, public exhibitions of bull-fighting and bull-baiting, a court of equity not only has jurisdiction to enjoin it from continuing that nuisance, but also its agents and employees, the individual men and women, who masquerade as bull-fighters, and use the corporate premises to create and maintain the nuisance, and that whether or not the things they do are crimes and they may be punished as criminals.
    10. -: -: Property Rights. It is not necessary that property rights must be involved in order for a court of equity to give injunctive relief. That rule has no application to proceedings to abate a public nuisance. Irreparable injury to public morals is,as grave a concern to a court of equity as irreparable injury to property.
    Appeal from St. Louis County Circuit Court. — No». Jolm W. McElhinney, Judge.-
    Reversed and remanded (with directions).

      Herbert 8. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for appellant.
    (1) The action was properly brought in the circuit court of St. Louis county, in the name of the State and a,t the relation of the Attorney-General. State ex rel. v. Zachritz, 166 Mo. 307; State ex rel. v. Stobie, 194 Mo. 48; 1 Beach on Injunctions, secs. 351-5’. (2) A court of equity has jurisdiction to restrain and enjoin existing or threatened public nuisances. 2 Story’s Equity Jurisprudence, secs. 921, 923, 924 ; 4 Pomeroy, Equity, sec. 1349; 21 Am. and Eng. Ency. Law, 703; Joyce on Law of Nuisances, sec. 409; Harrelson v. Railroad, 151 Mo. 482; Mugler w. Kansas, 123 U. S. 672; Springfield v. Railroad, 69 Mo. App. 514; Attorney-General v. Jam. Pond Aq. Corp., 133 Mass.'361; United States v..Debs, 64 Fed. 724; People v. St. Louis, 48 Am. Dec. 339; Com. v. McGovern, 75 S. W. 261. (3) In order to sustain the jurisdiction of a court of equity, it is not necessary that property rights be involved, or that the State have a pecuniary interest in the subject-matter of the litigation. State ex rel. v. Zachritz, 166 Mo. 314; Cooper v. Hunt, 103 Mo. 17; Com. v. McGovern, 75 S. W. 266'. (4) There was no remedy at law by criminal action against the defendant coiporation which owned and knowingly leased the premises, and it stands admitted on the record that all of the defendants were present taking part in the performance. Com. v. McGovern, supra.

      T. J. Rowe, Thomas J. Rowe, Jr., and Henry Rowe for respondents.
    The allegations of the petition fail to show any injury to property or invasion of civil rights irreparable in its nature and which cannot be redressed at law. The purpose of all civil suits is to afford relief from pecuniary loss. If there is no pecuniary loss there can be no civil suit. It is an axiomatic proposition that relief by injunction is granted to prevent irreparable damage. If no damage results from the commission of an act or the omission to perform some duty, injunctive relief can not be granted. Injunction is a civil remedy and its purpose and aim is to reach out and cover cases where the remedy at law is inadequate and incomplete. The aim and purpose of all civil remedies is to' either cure or prevent pecuniary loss. Schubach v. McDonald, 179 Mo. 163'. Procedure at common law cures pecuniary loss and procedure in equity by injunction prevents pecuniary loss. If the commission of a crime produces pecuniary loss and the offender threatens to continue to commit same, then the commission of the crime can be enjoined, not because it it is a crime, but because of pecuniary loss that' is incident to its commission, and by reason of the irreparable damage which would result from its continuous commission. Not a single case can be found where relief by injunction was granted to restrain the commission of an offense which caused no pecuniary loss. A court of equity will not interfere in a doubtful case until plaintiff’s rights are established at law. Harrelson v. Railroad, 151 Mo. 500. In re Debs, 158 U. S. 584, does not militate against the above doctrine, and the decision of Chief Justice Fuller, in 56 Fed. 674, supports and sustains same. World’s Columbian Exposition v. United States, 56 Fed. 674; State ex rel. v. Zachritz, 166' Mo. 313. The cases which sustain this proposition, namely: State v. Uhrig, 14 Mo. App. 413, and'State v. Schweicbardt, 109 Mo. 496, have never been overruled, but on the contrary are approved. State ex rel. v. Zachritz, 166 Mo. 307. See Columbia Athletic Co. v. State ex rel. Malone, 143 Ind. 109; 180 111. 109; 35' Wis. - 425; 128 N. T. 341; 84 Ala. 115; 48 L. R. A. 420.
   WOODSON, J.

— This is an equitable proceeding instituted by the State ex rel. the Attorney-General in the circuit court of St. Louis county, for the purpose of enjoining respondents from giving a public bull-fight performance in an arena prepared for that purpose, upon the premises of the Beredith Realty Company, in said county, near the World’s Fair Exposition, which was at the time in progress. A trial was had, and the finding was for respondents, and a decree was rendered dissolving the temporary injunction theretofore entered and dismissing the bill. In proper form and in due time the Attorney-General appealed the cause to this court.

The petition was substantially as follows: That the defendants had, on divers occasions, unlawfully and wilfully managed and conducted, and proposed to continue to manage and conduct a public exhibition and performance, known as a bull-fight and bull-baiting, in an arena constructed for that purpose, in St. Louis county, State of Missouri, near the city of St. Louis; that at such performances many thousands of people attended, being each charged an admission fee of fifty cents; that great publicity was given to such performances by advertising in the public press to induce the people to attend, and that it is the intention of the defendants to unlawfully continue to conduct and use such place so constructed, as aforesaid, for the purpose of fighting and baiting bulls. That the defendant, the Beredith Realty Company? a corporation, owns the premises upon which said arena is constructed, and unlawfully, knowingly and wilfully suffer and permit the defendants to use and occupy said premises for the purpose of fighting and baiting bulls in the presence of a large number of people, and that it is the intention of defendants to continue such performances and to use said premises for that purpose for a long time to come; that if such exhibitions continue, it will seriously endanger the lives of the participants, and that it will bring together from all parts of the country, lawless, violent, turbulent and dangerous assemblies of many thousands of people, causing riots and affrays and seriously endangering the safety and lives of many people, to the prejudice of the good name and general welfare of the people. That the bull-fighting and bull-baiting so carried on, and threatened to be carried on, is contrary to the good morals and public peace and general welfare of the people of the State, and constitutes a continuing violation of law, and is a public nuisance; that such performances are a continuing nuisance, and that the State has no adequate remedy at law, except by the interposition of the injunctive power of a court of equity. The petition concludes with a prayer for injunctive relief against the defendants.

The answer is a general denial.

There is but little if any dispute regarding the facts of this case. Those established by the State are substantially as follows:

The St. Louis Humane Society was back of and responsible for this proceeding, and the various members thereof were the principal witnesses on behalf of the State. An arena was constructed for bull-fighting, in St. Louis county, near the Administration entrance to the World’s Fair grounds, and was about 150' or 200 feet square, inclosed, with a seating capacity of four or five thousand. Above the entrance was a picture of a bull, and a large sign with these words, “Bull Fight Arena,” and near one corner of the arena there was a poster displaying the following words: “Bull Fight Arena. A death-defying spectacle.” Prior to the institution of this suit several performances had been held in the arena by respondents, and they intended and threatened to continue giving them for an indefinite period of time; the first of which was on Sunday afternoon, September 4, 1904, all of which were the same in character, differing only in detail; and for that reason a statement of the facts regarding one performance will apply equally well to all. That performance was as follows:

The first part of it was a parade around the arena; the bull-fighters went in dressed in Spanish costumes, leading horses, and, after retiring, one of the respondents opened a gate and let in a bull, and he came in on the run and jump; there, were several men standing around, dressed for the occasion, called matadors, with red cloaks or capes; as soon as the bull entered be made for one of those men, and the man threw his cloak in his face and jumped away, and then every one of them went through the same performance; after the hull and men had completed that part of the performance one of the men would take a cane and go through the form of killing it, as with a sword in a Spanish or Mexican arena, hut the hull was not in fact stabbed, killed or injured by that act. The action of the matadors greatly excited and maddened the bull, and he would rush around the arena after those people, and attempted to gore them, and he caught one of them and smashed him with his head and horns against the side of the arena — he looked pale as if hurt and he then disappeared and never appeared again in the arena. He told one witness he was quite seriously hurt and was attended by a physician. There were “escapes” constructed of posts and hoards in various parts of the arena, behind which the matadors could and did dodge when too closely pursued by the bulls, and the man who was injured was trying to get behind one of them when caught by the bull.

Mr. Robert, another matador, was also struck by a bull at the same performance, and knocked to the ground and was in great danger of being killed or injured by the bull when the other matadors came to his timely assistance and distracted the attention of the hull. Robert, afterwards, stated to the witness that he was black and blue from the effects of the stroke of the bull. This bull was kept in the arena fifteen or twenty minutes, and after he was taken out two more were brought in; they came rushing in the same way as the first one, and charged the matadors in the same way, and “came very near catching several of them.” All the hulls did all they could to catch the men, but only the first succeeded in doing so. They would rush against the “escapes” in trying to gore the men.

The fourth animal turned in was an “old black steer” with one of his horns broken and hanging down and bleeding. When he was brought in two men were dressed up like horses, and he charged them, and they caught him by the broken horn, and he would strike the “escapes” with same in his charges, which would make it bleed worse. Another man came into the arena with a barrel around his body and the bull charged and knocked him down, but did him no injury — he was rescued by his fellow performers. The bulls were greatly infuriated and would snort and bellow when charging the men.

There were twenty of the bulls. They came from the ranch of Louis Terriers, Socorro, Mexico, and were fighting bulls. Terriers raises bulls for fighting purposes and none other.

Mrs. Marian Cerevera, the wife of a bull-fighter, who went to St. Louis to make a contract for her husband with the Richard Norris Bull Fight Company to give bull-fights, testified: that the performance were genuine bull-fights, except the bull was not killed at the end of the show, as is done in Spain and Mexico; that she saw a man by the name of Sanandares pinned against the fence; he was down on his knees when some of the bull-fighters came to his rescue; they had a crazy fellow, he was brought there with my husband’s company because he was crazy, and he would go up' to anything; he was in a horse made out of a basket, and he rode up to the bull, he was knocked down by the bull and he was unable to rise, and the bull tried to charge him, but he was taken away by the bull-fighters. I think the bulls were doped, judging from the appearance of the animals. On cross-examination, she testified that she tried to stop the bull-fighting and went to see the G overnor about it; that the reason she wanted it stopped was because “these same people have murdered my husband; three or four of them got my husband in a room and had another man — if they hadn’t murdered my husband, they would hot be allowed to give as many bull-fights as they saw fit, so far as I am concerned; if my husband had been living I would have put a stop to it, if I could.” Mr. Eoberts came to me at my place of business in “Creation” and told me if I interfered with the bull-fight, he would bring Carlton Bass, the man who murdered my husband, here and have him work here in St. Louis. That was said because he thought it would make me feel badly to see the man who killed my husband.

On Sunday evening a crowd of women, bare-headed, entered the arena, with short aprons on, yelling and hollowing. They met a lot of Mexicans and they were yelling and throwing their hats up and the women were yelling — two of them were selling beer in Dreamland and the German village. There were from twelve to fourteen hundred people who witnessed the performance on that Sunday evening, many of whom were excited and yelled and hollowed and threw their cushion seats into the arena, and two men used vulgar language and the sheriff made them stop.

There were men on the outside of the inclosure advertising the sight by calling through a megaphone, and over the entrance was the following: “Bull Fight Arena, ’ ’ and on the north side was the following: ‘ Felix Eobert, Celebrated French Matador. Troupe of 40 Experts. Thrilling, Exciting, Unique. 20 Eeal Imported Wild Spanish Bulls. Death-Defying Spectacle. Arena at Administration Entrance to World’s Fair, near Skinker Eoad. Admission 50 cents. Opening performance Sunday, September 4th. Labor Day, September 5th.”

The defendants’'evidence did not tend to materially contradict the evidence ihtroduced by State, but tended to show that the crowd was composed of good people and was orderly and well behaved; that it did not become any more excited or demonstrative, or hollow any more than the crowds which generally witness a first class base-ball or foot-ball game. That there was no disturbance or breach of the peace. That before the trial of this proceeding took place the State had arrested and tried several of the defendants upon criminal charges, and that all of them had been duly acquitted.

I. It is too well settled to challenge discussion that the suit was properly brought in the circuit court of St. Louis county, in the name of the State at the relation of the Attorney-General. [State ex rel. v. Zachritz, 166 Mo. 307; State ex rel. v. Stobie, 194 Mo. l. c. 48; 1 Beach on Injunctions, sec. 351-5.]

II. The contention of the Attorney-General is that the defendants were maintaining and conducting, and threatened to continue to maintain and conduct a public nuisance, and with keeping and using the property and premises where such nuisance was maintained and threatened to use it for such purpose; and he further contends that such nuisance should be abated and enjoined by a court of equity, because the nuisance is an offense against public order, the common good and public decency and morals. The defendants contend that the petition does not state facts sufficient to' entitle plaintiff to the relief prayed for, and that under the evidence and proof the decree of the trial court was for the right parties.

Those respective contentions present the two propositions to be decided:

■ First: Is a bull-fight such as the one described by the evidence a common or public nuisance within the meaning of the law?

Second: If so, has.a court of equity jurisdiction to interfere by injunction and prevent it; or should the State be driven to the criminal law for redress?

This brings us first to the consideration and determination of what is a public nuisance within the meaning of the law.

Mr. Joyce, in his valuable work on the Law of Nuisances, section 5, defines a public or common nuisance in the following words: “A public or common nuisance is an offense against the public order and economy of the State, by unlawfully doing any act or by omitting to perform any duty which the common good, public decency or morals, or the public right to life, health, and the use of property requires, and which at the same time annoys, injures,- endangers, renders insecure, interferes with, or obstructs the rights or property of the whole community, or neighborhood, or of any considerable number of persons; even though the extent of the annoyance, injury or damage may be unequal or may vary in its effect upon individuals. Another factor in defining a nuisance is, that consideration should be given to the places where the public have the legal right to go or congregate, or where they are likely to come within the sphere of its influence.” And in section 409, the same author says: “A disorderly and disreputable theatre is a common nuisance and so is a prize fight. ’ ’

1 Wood on Nuisances (3 Ed.), see. 68, says: “A public exhibition of any kind that tends to the corruption of morals, to a disturbance of the peace, or of the general good order and welfare of society, is a public nuisance. Under this head are included all puppet shows, legerdemain, obscene pictures, and any and all exhibitions, the natural tendency of which is to pander to vicious tastes, and to draw together the vicious and disorderly members of society.”

According to these definitions any act which is an offense against the public order, common good and public decency or morals, or any public exhibition which- tends to corrupt the morals, to disturb the peace or the general good order and welfare of society, is a public nuisance; such as puppet shows, legerdemain, obscene pictures, disorderly theaters and prize fights, and all and any exhibitions the natural tendency of which is to pander to vicious and disorderly members of society. [Reaves v. Oklahoma, 13 Okla. 396; Com. v. McGovern, 116 Ky. 212, 75 S. W. 261.]

According to the evidence in this case there can be no doubt but what the bull-fights in so far as the bulls were concerned were genuine fights and partook of the ferocity and brutality which has ever characterized them in Spain and Mexico. Two matadors were knocked down and injured more or less by the bulls the first night, and might have been seriously injured or killed had it not been for the timely arrival and assistance of their associates; and two others were knocked down, one of them a crazy man, but both escaped injury, through .the assistance of their fellows.

"While it is true the evidence discloses that the matadors did not use the sword, as is the practice in Spain and Mexico in such fights, nor inflict injury or death upon the bulls, yet that very fact made it more hazardous and dangerous for the matadors. If they had been furnished with swords they would have been more able to have stopped the mad career of the infuriated bull, and thereby escaped the deadly charge of the Socorro brute, without relying exclusively upon the timely arrival and prompt assistance of their fellow matadors, or the convenient “escapes” erected along the wall of the arena.

The managers in disarming those poor bull-fighters and placing them in the arena with those mad bulls were almost if not quite as guilty of as great a crime as the Romans were in ancient times, who- threw the criminals and Christians into the public arena with the wild beasts to be torn to pieces and killed by them for the edifice and amusement of the morbid and vicious populace.

To-day the matadors have modernized the arena and reduced the fighting largely to a science, and when properly armed they can defend themselves with some degree of safety, but when disarmed they are placed hack on an exact plane and equality with the unfortunate Romans, except they have the “escapes” behind which they may retreat if they are quick and dexterous enough to evade the swift and mad charge of the infuriated bull; otherwise he must share the same gory fate as the Romans of old, if perchance some associate does not in the nick of time divert his attention from him by a red flag. But in either event and under the most favorable circumstances and when the matadors are properly armed with swords they are often killed or injured, as every one knows as a matter of history and common knowledge.

The State is deeply interested in the lives and well being of all her citizens, and of those who come within her borders, and much more so than she is in the lives and safety of the bulls. The immunity of the bull from punishment under the system of fighting as shown by the evidence in this case in no manner or degree lessened the interest of the State in the lives and limbs of the men who were engaged in those highly dangerous combats and struggles. But in the case at bar one of the steers injured and broke one of his horns, which hung down over his face, and in that condition, with blood flowing therefrom, he would charge and recharge the men and dummy horses, and strike the broken horn against the dummy or the “escapes” and thereby caused the flow of the blood to increase, which must have been very painful and.no less cruel to the dumb brute.

This is not all; the evidence shows that one man was killed in some controversy regarding the exhibition. While his widow does not make a very favorable impression upon ns as a witness, yet as she was not contradicted, we must conclude that three or four of the men got him in a- room, and while in there one of them killed him. She said murdered him, but, however that may be, it shows that there were some vicious and dangerous men gathered there and that they killed a man, and when charged with murder it did not make sufficient impression upon them to call for an explanation on their part.

The Supreme Court of Kentucky, in passing upon a prize-fight, said: “If the fight had occurred, doubtless it would have attracted some of the better and law-abiding class of citizens, curious to see such a spectacle as a prize-fight; but for every such reputable citizen thus attending there would have been present a dozen gamblers, confidence men, bunco steerers, or pickpockets, gathered from all parts of the United States, men of idle, vicious and criminal habits and practices, whose business is to prey upon the public in some form or other, and many of them would remain in the community after the combat to ply their nefarious callings. Such an assembly would easily be led into a riot, or other unlawful disturbance of the public peace. In addition to the evils' suggested, there would be the contaminating effect of such a meeting upon the youth of the city and State, which might prove of incalculable injury to their morals and future welfare. Such a gathering, too, would demand increased vigilance in the protection of the property of the city and its inhabitants, be a menace to good order, and disturb the peaceful pursuits and happiness of citizens who would be unwilling to patronize such an enterprise.” [Commonwealth v. McGovern, 116 Ky. l. c. 236.]

And among the greatest of the evils connected with the holding of the bull-fights, in the arena, would be the presence of large crowds of lawless and turbulent men from all parts of the country. And what was said by the Kentucky court regarding the prize fight applies equally as well and forcible to bull-fights. “An injunction against the use of the building advertised as the place of the fight would go far toward preventing the assembling of this crowd, and thereby avert incalculable mischief, which could not well be averted by the criminal courts, or their ministerial officers, after the assembling of the audience at the place of the combat, or in the act of assembling.” [Commonwealth v. McGovern, 116 Ky. l. c. 237.]

The same sentiments and views may be truthfully said of bull-fights. It would have the natural tendency to draw the vicious and criminal elements from all over the country to that one center, and their power for evil and the commission of crime in a great city like St. Louis with her thousands upon thousands of visitors at the World’s Fair, could not be foreseen or estimated, and the evil influences thereof would not have been confined to the limits of the city of St. Louis, but would have followed the youth of the country to the confines of the nation.

As it was, the fair proved to be a great attraction for the criminal element, and if they could have found so hospitable a rendezvous as the arena doubtless it would have been filled with a large class of lawless and desperate men and women, who would have been a danger and menace to the city and State, and would have endangered the public peace and safety and might have resulted in riot and bloodshed.

“These are rights, though not susceptible of a pecuniary estimate, which it is the duty of the State to protect by every means at its command.” [Commonwealth v. McGovern, supra, 235.]

In treating of disorderly houses, Mr. Wood, in his excellent work on the Law of Nuisances (3 Ed.), vol. 1, section 37, says: “So, too, a disorderly house is a common nuisance, and while bawdy-houses legitimately come under this head, yet it embraces a large class of other houses, kept for entirely different purposes, and to constitute which prostitution need not be an element.”

In section 38 he says: “A disorderly house is any place of public resort in which unlawful practices are habitually carried on, or which become a rendezvous or place of resort for thieves, drunkards, prostitutes, or other idle, vicious and disorderly persons, who gather there to gratify their depraved appetites, or for any purpose; for such persons are regarded as dangerous to the peace and welfare of the community, and their presence at any place in considerable, numbers is always a just cause for alarm and apprehension. . . . And a place where liquor is sold under a license in excessive quantities, whereby persons become intoxicated, and where brawls result therefrom, is a disorderly house, and indictable as a nuisance; for no person has a right to carry on upon his own premises or elsewhere, for his own gain or amusement, any public business clearly calculated to injure and destroy public morals, or to disturb the public peace.”

All the authorities to which we have been cited confirm the doctrine above announced, and many more we have investigated are to the same effect. And if we are to be governed by those authorities, we are unable to see how it can be logically contended that an arena erected for the purpose and in which bull fighting is actually carried on, as disclosed by this record, is not a public and a common nuisance. We so believe it to be and have no hesitancy in declaring it to be such.

III. The second contention of the respondents is that even though it be conceded that the arena was a public nuisance, yet a court of equity has no jurisdiction to abate the nuisance by injunction, but must resort to criminal prosecutions of the persons who maintain and conduct the nuisance.

The learned counsel for respondents, it seems to us, misconceives the position of the State upon that proposition. There are two offenses charged in the bill-; one for maintaining a disorderly house, and the other for maintaining a public nuisance therein. While the injunctive remedy is prayed against both, yet the principal object of the bill is to abate the disorderly house by enjoining the owners thereof from permitting it to be used for the purposes named in the'bill.

We have no hesitancy in holding that the individual members of the company who conducted the bullfights cannot be enjoined from so doing, because that is a crime which is punishable by conviction under the criminal laws in a criminal prosecution. Nor has a court of equity, in the absence of statutory authority, jurisdiction to enjoin the maintenance of a bawdy-house, or any other house not of a public character.

In the discussion of this very question the Supreme Court of Kentucky in the case of Neaf v. Palmer, 103 Ky. l. c. 498, said: “It is not alleged that there are offensive sights or sounds about the obnoxious premises, but only that the property is made less valuable in the vicinity, and that the moral atmosphere is tainted and pestilential. The injury is wholly consequential. It .seems to us under these circumstances criminal courts had best be left to enforce the criminal laws. These are confessedly adequate for the purpose of suppressing such evils.”

And the same court in the case of Commonwealth v. McGovern, supra, on page 238, in discussing the Neaf-Palmer case, supra, used this language: “There was nothing in the case, supra, to indicate that the bawdy house complained of could not be suppressed by tbe ordinary methods appertaining to tbe criminal court, and the damages resulting to tbe plaintiff’s property from tbe existence of tbe bawdy-house being wholly epnsequential and speculative, it would, of course, bave been improper in tbat case to employ tbe writ of injunction in aid of tbe mere property rights of tbe individual.”

Tbe apparent and what actual conflict tbat may exist between tbe authorities upon this proposition grows out of tbe failure to draw tbe distinction between private and public nuisances. Tbe offense must not only be a nuisance, but must be of a public character, which affects tbe entire community or a large portion of it, and conducted at a place where tbe public bave a right to go and congregate. It never was tbe law, in tbe absence of legislative authority, tbat courts of equity could enjoin tbe commission of crime generally. [Crawford v. Tyrrell, 128 N. Y. 341.]

This court has uniformly held tbat a court of equity has no jurisdiction to enjoin tbe commission of a crime, but tbat resort must be bad to tbe criminal courts, which possess ample power to punish and prevent crime. [State ex rel. v. Schweickardt, 109 Mo. 496; State ex rel. v. Zachritz, 166 Mo. 307; State ex rel. v. Uhrig, 14 Mo. App. 413.]

But tbe power and jurisdiction of a court of equity to enjoin tbe maintenance of a public nuisance is of a very ancient origin and is a well-established doctrine.

Judge Story, in treating this question, said: “In regard to public nuisances, tbe jurisdiction of courts of equity seems to be of a very ancient date, and has been distinctly traced back to tbe reign of Queen Elizabeth. Tbe jurisdiction is applicable not only to public nuisances, strictly so called, but also to purprestures upon public rights or property.” [2 Story’s Equity Jurisprudence (13 Ed.), sec. 921.] And in section 923 tbe same author says: “In cases of public nuisances, properly so called, an indictment lies to abate them and to punish the offenders. But an information also lies in equity to redress the grievance by way of injunction.” And he further says in section 924: “The ground of this jurisdiction of courts of equity in case of purpresture as well as of public nuisances undoubtedly is their ability to give more complete and perfect remedy than is attainable at law, in order to prevent irreparable mischief, and also to suppress oppressive and vexatious litigation. In the first place, they can interpose where courts of law cannot, to restrain and prevent such nuisances as are threatened or are in progress, as well as to abate those already existing. In the next place, by a perpetual injunction the,,remedy is made complete through all future time; whereas an information or indictment at the common law can only dispose of the present nuisance, and for future acts new prosecutions must be brought.”

Mr. Pomeroy states the law as follows: “A court of equity has jurisdiction to restrain existing or threatened public nuisances by injunction, at the suit of the Attorney-General of England, and at the suit of the State, or the people, or municipality, or some proper officer representing the commonwealth, in this country.” [4 Pomeroy’s Equity Jurisprudence (3 Ed.), sec. 1349.]

And Mr. Joyce says: “A disorderly and disreputable theatre may be enjoined although a common nuisance. So may a prize fight.” [Joyce on Law of Nuisances, sec. 409.]

In discussing the power and jurisdiction' of the court of equity to abate a public nuisance by injunction, the Supreme Court of Illinois said: “The jurisdiction of the court over the subject-matter of the suit was also undoubted. The court of chancery may grant preventive as well as remedial relief; and this may be done where the act threatened would be punishable under the criminal laws as a nuisance. ’ ’ [People v. St. Louis, 48 Am. Dec. 340.]

In the case of Mugler v. Kansas, 123 U. S. l. c. 672, the Supreme Court of the United States said: “Equally untenable is the proposition that proceedings in equity for the purposes indicated in the thirteenth section of the statute are inconsistent with due process of law. ‘In regard to public nuisances, ’ Mr. Justice Story says, ‘the jurisdiction of courts of equity seems to be of very ancient date, and has been distinctly traced back to the reign of Queen Elizabeth. The jurisdiction is applicable not only to public nuisances, strictly so called, but also to purprestures upon public rights and property. ... In cases of public nuisances, properly so called, an indictment lies to abate them, and to punish the offenders. But an information also lies in equity to redress the grievance by way of injunction.’ [2 Story’s Eq., secs. 921, 922.] The ground of this jurisdiction in cases of purpresture, as well as of public nuisances, is the ability of the courts of equity to give a more speedy, effectual and permanent remedy than can be had at law. They can not only prevent nuisances that are threatened, and before irreparable mischief ensues, but arrest or abate those in progress, and, by perpetual injunction, protect the public against them in the future; whereas courts of law can only reach existing nuisances, leaving future acts to be the subject of new prosecutions or proceedings.This is a salutary jurisdiction, especially where a nuisance affects the health, morals, or safety of the community. Though not frequently exercised, the power undoubtedly exists in courts of equity thus to protect the public against injury. ’ ’ [Also see State v. Mayor, 5 Porter (Ala.) 280; Attorney-General v. Railroad, 1 Drew. & Sm. Rep. 161; Attorney-General v. Forbes, 2 Mylne & Craig 132; Springfield v. Railroad, 69 Mo. App. 514; 21 Am. & Eng. Ency. Law (2 Ed.), 733; Attorney-General v. Jamaica Pond Aq. Corp., 133 Mass. 361; United States v. Debs, 64 Fed. 724.]

So we are thoroughly satisfied from both reason and authority that in a case of this character, where the nuisance sought to be enjoined is itself and in its very nature both public and at the same time injurious to the public safety and good morals, a court of equity has full power and jurisdiction to abate the existing nuisance and to perpetually enjoin the owners of the property from maintaining or conducting the same in the future.

IV. The contention of respondents that a court of equity has no jurisdiction to abate a public nuisance where the offenders are amenable to the criminal laws of the State is not tenable, as is fully shown by the following authorities: 2 Story’s Equity Jurisprudence (13 Ed.), secs. 923 and 924; Crawford v. Tyrrell, 128 N. Y. 341; People v. St. Louis, 48 Am. Dec. 340; 21 Am. and Eng. Ency. Law (2 Ed.), 704; Attorney-General v. Jamaica Pond Aq. Corp., 133 Mass. 361; Carleton v. Rugg, 149 Mass. 550; Reaves v. Oklahoma, 13 Okla. 403.

V. The respondents’ contention that property rights must be involved in the litigation before a court of equity will grant injunctive relief has no application to proceedings to abate a public nuisance. [State ex rel. v. Zachritz, 166 Mo. l. c. 314; Cooper v. Hunt, 103 Mo. l. c. 17; Commonwealth v. McGovern, 116 Ky. 212.]

VI. The last insistence of the respondents is that under the evidence in the ease, the finding and judgment of the trial court were for the right parties.

This contention is only partly true. The court erred in dismissing the petition and in refusing to perpetually enjoin the Beredith Realty Company, its owners and managers, from permitting the use of its premises for the holding of bull-fights, and to that extent the judgment is reversed and the cause remanded, with direction to the circuit court to re-instate the cause, and enter a decree perpetually enjoining the Beredith Realty Company, its owners and managers, from holding bull-fights in or upon its premises, and to re-enter the judgment in favor of all other respondents.

Valliant, P. J., and Lamm and Graves, JJ., concur in all except what is said in regard to the jurisdiction of a court of equity to enjoin an act criminal in its character; as to that their views are expressed in the two separate opinions of Valliant, P. J., and Lamm; J. The majority of the court being of the' opinion that the judgment should be reversed and the cause remanded with directions to the circuit court to enter judgment against all the' defendants -as prayed in the petition, it is so ordered.

SEPARATE OPINION.

VALLIANT, P. J.

— A court of equity will not undertake to' enforce the criminal law, therefore it will not enjoin the commission of a threatened act merely because the act would be a crime, but, on the other hand, neither will it withhold its equitable relief in a case in which, for other reasons, it has jurisdiction merely because the act when committed would be a crime. An act displayed before a public audience which is debasing in its character, debauching in its influence on public morals and brutalizing in its effect on the spectators is a public nuisance which a court of equity has jurisdiction to enjoin and the court is not robbed’ of its jurisdiction merely because the act besides being a nuisance is also a crime. In such ca.se a court of equity will give its attention to the public nuisance and ignore the criminal character of the act.

A man charged with the commission of a crime has a constitutional right to a trial by jury, but a man who has not yet acted but who merely proposes to commit an act which is not only criminal in its character but also flagrantly offensive as a public nuisance, has no constitutional right to commit the act in order’that he may thereafter enjoy the constitutional right of trial by jury.

Lamm and Graves, JJ., concur.

SEPARATE OPINION.

LAMM, J.

— I agree with the result reached by my brother Woodson in so far as the decree is reversed and one directed to be entered against the corporate defendant, its owners and managers; but not with the direction that the decree be re-entered in favor of the other respondents. It is not a case for making two bites of one cherry. All the respondents seem to me to be in the same boat and tarred with the same stick; all were engaged in a common enterprise in creating and maintaining a continuing public nuisance of a kind so bad that to color it by expletives would weaken the facts. What was new was low; what was old was borrowed from an age of savagery. The wholesome instincts of our people are one with the policy of our law in abominating such a spectacle.

The facts and the law make it a public nuisance, as shown by the opinion of my brother. This being so, equity should smite it as with a rod, without paltering, and spare not. I fail to comprehend how the corporate defendant can be guilty of hatching and maintaining that form of a mischief, on one hand, while other active agents in its maintenance, to-wit, the individual men and women, masquerading as bull-fighters, and who use the corporate premises to create and maintain the nuisance, on the other, go scot-free.

True it is these individuals may be guilty of violating the criminal law in some shape or form, and thus may be amenable to punishment as for crime. True the general rule is that equity will not enjoin the commission of a crime. Therefore, in so far as the matadors, picadors, toreadors, banderilleros, clmlos (and all the other bull-fighters, however named or labeled) are guilty of violating the criminal law, let them be charged, arraigned, tried and punished in criminal courts in apt time, due order and ancient form. But the matters complained of are not alone crimes. They are of a dual sort, and may be viewed from another point of view. Thus: in so far as these people, while committing crimes, if any, also aid, abet, sanction and participate in the creation and maintenance of a continuing public nuisance, they came within reach (and ought not to escape the outstretched arm and corrective hand) of a court of conscience; for, absent them and their doings, there is no public nuisance. Their acts unite with the acts of the other respondents to make the nuisance itself. Hence, equity should not bother itself to pick and choose between the lot — make fish of one and fowl of the other — but treat them as it finds them, viz.: bound together in a bundle as members of one body, “hail fellow, well met” — birds of a feather — voluntarily united in a joint violation of law in maintaining a public nuisance, and, hence, not divided by that law for the purpose of injunctive restraint.

Suppose the owners of the premises could not be found, or the title to the premises were cunningly hid away, must a public nuisance continue debauching public morals and breeding depravity when those whose acts are maintaining it are known and within reach?

It is argued there is no precedent. If that were so, it ought not to avail anything. The day of making precedents is not passed. If there be no precedent, the time has come to make one. But Hamilton-Brown Shoe Co. v. Saxey, 131 Mo. 212, is precedent enough. True, irreparable injury to property rights lay at the foundation of the cause of action in the Hamilton-Brown case, but irreparable injury to public morals is certainly of as grave concern as mere dollar and cent loss; and what is said in that case, on principle, covers this.

The judgment should he reversed and the cause remanded with directions that the court below enter a decree as prayed in the bill.

Valliami, P. J., and Graves, J., concur in this.