Hemsley v. Myers

• Decision Date: 18 February 1891
• Citation: 45 F. 283
• Parties: HEMSLEY et al. v. MYERS et al. TUCHMAN v. WELCH, County Attorney, etc. YOUNT v. SAME. M. SCHANDLER BOTTLING CO. v. WELCH, County Attorney, etc., et al. WOLLSTEIN et al. v. WELCH. SAMUELS et al. v. IRISH, County Attorney, etc. BELL et al. v. BLAIR, County Attorney, etc. SCHUTT et al. v. NEVISON, County Attorney, etc. STORY et al. v. NEVISON, County Attorney, etc., et al. MARSHALL et al. v. SAME.
• Court: U.S. District Court — District of Kansas

45 F. 283

HEMSLEY et al. v. MYERS et al. TUCHMAN v. WELCH, County Attorney, etc. YOUNT v. SAME. M. SCHANDLER BOTTLING CO. v. WELCH, County Attorney, etc., et al. WOLLSTEIN et al. v. WELCH. SAMUELS et al. v. IRISH, County Attorney, etc. BELL et al. v. BLAIR, County Attorney, etc. SCHUTT et al. v. NEVISON, County Attorney, etc. STORY et al. v. NEVISON, County Attorney, etc., et al. MARSHALL et al. v. SAME.

United States Circuit Court, D. Kansas.

February 18, 1891

On the 15th of July, 1890, Hemsley & Linbocker filed in this court a bill in equity against Myers as sheriff, and Irish as county attorney, of Riley county, and R. B. Spillman as judge of the district court for the twenty-first judicial district of Kansas, which includes Riley county. The bill alleges, in substance, that the complainant, Hemsley, as the agent of Glasner & Barzen, (who are not made parties,) liquor and Barzen, and as received by him. ' That on the 3d of July 1890, of that state, was selling intoxicating liquors, as such agent, at Manhattan, Kan., in the basement of a building rented for his principals for that purpose from his co-complainant as agent for the owner. 'That he commenced business in said place on the 21st day of June, 1890, and that up to the 3d day of July, 1890, he had sold in the neighborhood of $300 worth of liquors at wholesale prices among which were about forty cases of beer, containing twenty-four bottles each, about one hundred packages of whisky, each containing one pint, and sundry packages of beer, each containing four bottles, securely boxed and sealed in pine boxes. That no other kind of packages except these mentioned were received by him, and that no liquors were sold by him except in the original packages as they were shipped to him by Glasner and Barzen, and as received by him. ' That on the 3d of July, 1890, the defendant Irish, as county attorney, presented to the defendant Spillman, as district judge, 'a certain petition alleging and setting out the above actions on the part of said Hemsley, and praying that the said place occupied by said Hemsley as a place of business and as the agent of Glasner and Barzen be declared a common nuisance under the provisions of section 13 of what is known as the 'prohibitory law' of the state of Kansas, which said petition was by him, the said F. L. Irish duly verified; and that, upon the presentation of the said petition to the said R. B. Spillman, a temporary injunction was issued against the complainants, and they were ordered to shut the said place of business, and to abstain and refrain from further sales of intoxicating liquors therein, and to abstain from keeping said place of business open in the manner in which the said complainants had prior to that time kept said place open, and that, in case they failed to do as ordered by said temporary injunction, they would be proceeded against as for contempt of the proper orders and commands of the district court of said county of Riley and state of Kansas. ' That on motion made for that purpose the court refused to vacate or discharge this injunction. That 'the said F. L. Irish, county attorney as aforesaid, threatens and is about to begin and prosecute other injunction suits as well as criminal proceedings against your petitioner, and threatens and is about to take action against your petitioner, and cause him to be committed to the common jail of Riley county, for contempt of the said temporary injunction; and that the said R. B. Spillman also threatens and is about to entertain the proposed proceedings for such temporary injunction and such other criminal proceedings as the said F. L. Irish may bring against said Hemsley, and threatens and is about to issue other orders of injunction against said Hemsley upon such applications, and threatens and is about to commit to the common jail of Riley county the said Hemsley on the alleged cause of contempt of the orders of the said district court, wherein and in fact the said Hemsley has done nothing in violation of the law of the state or of the United States, except that he has a legal right to do, and thereby drive the said Hemsley out of the said original package business, and to cause the said original package business in the said city of Manhattan to be discontinued, and to depreciate the value of the property so as aforesaid imported into the state of Kansas and for sale therein by the said Hemsley as agent of the said Glasner & Barzen, and to so injure and harass the said petitioner and so depreciate the value of the said property of the said importers thereof as to make the said original package business unprofitable, and to cause the same to be discontinued in the said city of Manhattan and state of Kansas. ' That the statute of Kansas under which the defendants were proceeding was in contravention of the constitution of the United States, and void, and that under the constitution of the United States the plaintiff had the right to carry on the business in which he was engaged. The bill prayed for a perpetual injunction enjoining the defendants 'from taking any further proceeding, whether by injunction or by criminal arrest, under the said prohibitory law of the state of Kansas, or otherwise interfering with the sale and keeping for sale in said building of said original packages of intoxicating liquors so as aforesaid imported by Glasner & Barzen to their agent, George Hemsley,' Upon hearing the motion for a temporary injunction the writ was awarded in these terms:

'GEORGE HEMSLEY AND J. N. LINBOCKER v. J. M. MYERS, F. L. IRISH, AND R. B. SPILLMAN.

'Temporary Order of Injunction.

'Now, on this 18th day of July, 1890, came on the above cause before the circuit court for said district, and thereupon, agreeable to an order made heretofore, on the 15th day of July, 1890, in said cause, came on the application of the complainants for a temporary injunction as prayed for in their bill of complaint, service of which last-named order has been heretofore duly made upon defendants. And thereupon came the said complainants, by Sam Kimble, Esq., and D. C. Lockwood, Esq., their attorneys, and also came the defendants, J. M. Myers, F. L. Irish, and R. B. Spillman, in person before me, and as well by Hon. L. B. Kellogg, attorney general of the state of Kansas, appearing in behalf of the said defendants, and the said bill of complaint came on to be heard as aforesaid, and, being duly considered and argued by counsel, and it appearing that the matters and things set out and alleged in said bill of complaint are true, and that complainants are entitled to the relief as prayed for so far as same relates to the defendants J. M. Myers and F. L. Irish: It is therefore, on this 18th day of July, 1890, by said court considered and ordered that the said defendants J. M. Myers and F. L. Irish be, and they are hereby, enjoined until the further order of this court from further proceeding against the complainants, and from further attempting to engage in any intoxicating liquors in the original packages by the importer of his the prohibitory law of Kansas against the said complainants, George Hemsley and J. N. Linbocker, wherein they will seek to punish said complainants for the sale of intoxicating liquors in the original packages only, or for keeping open the building on lot numbered 16, in ward numbered two, (2,) in the city of Manhattan, Kansas, for the sale of intoxicating liquors of and belonging to the firm of Glasner & Barzen, of Kansas City, Missouri, in the original packages only; and that they are enjoined from doing any act directly or indirectly towards declaring said place of business a common nuisance, and seeking to abate and destroy the same and the goods stored and sold therein on the ground that it is contrary to the law of the land to maintain such a place, or on the ground that the keeping of a place for the sale of intoxicating liquors in the original packages by the importer of his duly-authorized agent is a common nuisance under the prohibitory law of the state of Kansas and of the United States, and that they be enjoined from taking any further steps in the district court of Riley county, Kansas, in the injunction proceedings heretofore instituted, as set out in said bill of complaint, or to interfere in any manner by prosecution, either civil or criminal, to deprive the complainants from carrying on and conducting in the said city of Manhattan, Kansas, the business of selling intoxicating liquors in the original packages only, and as set out in the bill of complaint, and from in any manner interfering with or seeking to shut up or abate the use and occupancy of the said building in the manner as set out in the bill of complaint.

(Signed) 'C. G. FOSTER, Judge.'

The opinion of the court ordering the temporary injunction to issue in a similar case is reported. Tuchman v. Welch, 42 F. 548. The case is now before the court on demurrer to the bill. Nine other cases, differing in details, but involving the same principal questions, have also been submitted on demurrer.

David Overmeyer, E. Hagan, Wheat, Chesney & Curtis, Henry L. Call, Sam Kimble, D. C. Lockwood, and Samuel D. Bishop, for complainants.

L. B. Kellogg, Atty. Gen., R. B. Welch, and H. C. Irish, for defendants.

CALDWELL J.

The bill is bad on three grounds.

1. Viewed in the light of a bill for an injunction to restrain the violation of a constitutional or common-law right, or the commission of a trespass, it fails to state a case cognizable in equity. The complainants own no property, and have no property rights to be affected. The owners of the liquor and of the house in which it was sold are not parties to the suit. The gravamen of the bill, so far as relates to the complainant Hemsley,...