United States v. Varele, 1554.

• Decision Date: 31 May 1930
• Docket Number: No. 1554.,1554.
• Citation: 40 F.2d 941
• Parties: UNITED STATES v. VARELE et al.
• Court: U.S. District Court — District of Idaho

40 F.2d 941 (1930)

UNITED STATES v. VARELE et al.

No. 1554.

District Court, D. Idaho, S. D.

May 1930.

H. E. Ray, U. S. Dist. Atty., and Sam S. Griffin, Asst. U. S. Dist. Atty., both of Boise, Idaho, for plaintiff.

Bissell & Bird, of Gooding, Idaho, for defendant Western States Realty Co.

CAVANAH, District Judge.

This suit is brought under section 34, title 27, USCA, for the purpose of abating the nuisance alleged to have been maintained in the one-story building on lot 18, block 36, Fremont street, in Rupert, Idaho. It was admitted at the trial that the nuisance existed as charged in the bill, and the last date on which the National Prohibition Act was violated by the tenants of the premises, and proprietors of the business conducted thereon, was January 7, 1930. The bill was filed January 21, 1930, and the tenants were, on January 7, 1930, arrested and placed in jail and were there at the time the bill was filed.

The only question presented for decision is, Can the government, under the evidence, maintain this action where it appears that the tenants and occupants of the premises had been arrested and placed in jail at the time of the filing of the bill, two weeks after the last act of violation of the law was committed, it being contended by the owner of the premises, who is made a party to this suit, that, as the nuisance had ceased to exist, because the tenants had been incarcerated in jail at the time the bill was filed, the government could not maintain this action?

The principle applicable to the facts in this case seems to be that if it is shown that the nuisance once existed, and suit is seasonably brought to abate under the National Prohibition Act, the government would have the right to maintain its action. If there was any unreasonable delay in bringing the action, or a change of environment and circumstances which would convince the court that there would be no continuation of the nuisance, then the court would be justified in declining to enter a decree of abatement. Each case must stand upon its own particular facts. The action was brought within sixty days following the specific violations of the law charged in the bill. Section 35 of title 27, USCA, provides:

"Any person who shall, with intent to effect a sale of liquor, by himself, his employee, servant, or agent, for himself or any person, company or corporation, keep or carry around on his person, or in a vehicle, or other conveyance whatever, or leave in a place for another to secure, any liquor, or who shall travel to solicit, or solicit, or take, or accept orders for the sale, shipment, or delivery of liquor in violation of this title is guilty of a nuisance and may be restrained by injunction, temporary and permanent, from doing or continuing to do any of said acts or things.

"In such proceedings it shall not be necessary to show any intention on the part of the accused to continue such violations if the action is brought within sixty days following any such violation of the law."

From this section an intention to continue a violation of the law is presumed, after ...