Barber v. Brennan

• Citation: 119 N.W. 142,140 Iowa 678
• Parties: BARBER v. BRENNAN, JUDGE.
• Decision Date: 13 January 1909
• Court: Iowa Supreme Court

140 Iowa 678

119 N.W. 142

BARBER

v.BRENNAN, JUDGE.

Supreme Court of Iowa.

Jan. 13, 1909.

Certiorari proceedings to review the action of the defendant in refusing to punish for contempt. Annulled and remanded.M. S. Odle, for plaintiff.

Spurrier & Parsons, for defendant.

SHERWIN, J.

On the 21st day of March, 1908, a temporary writ of injunction was issued by the district court of Polk county restraining the Loper Drug Company and J. H. Loper from unlawfully keeping or dispensing intoxicating liquors. On the 17th day of April, 1908, the petitioner herein, who is also the appellant, filed in the office of the clerk of the district court of Polk county an information and affidavit charging that said J. H. Loper had violated the temporary injunction theretofore issued by making unlawful and illegal sales of intoxicating liquors, and asking that he be brought before the court and required to show cause why he should not be punished for contempt in violating the temporary injunction which was during all of said time in force. The petition charged the defendant generally with a violation of the prohibitory law, and specifically charged that he had violated it in making sales to certain individuals. Evidence was introduced by the plaintiff tending to show specific sales of intoxicating liquors without requiring a written request therefor, as provided by the statute. These sales were denied by the defendant, and this denial was supported by evidence from which the defendant may well have found that the alleged sales had not in fact been made, and, as to this branch of the question, it is sufficient to say that the judgment of the trial court should not be disturbed. It is conclusively proven, however, that after the issuance of the injunction, and while it was still in force, the defendant, through his servants, had made a great many sales of intoxicating liquors upon written requests which wholly failed to show that the liquors so sold were bought for medical or other lawful purposes. Code, § 2394, requires that a pharmacist before selling or delivering any intoxicating liquor shall take a written request signed by the applicant, which shall state “the actual purpose for which the request is made, and for what use desired.” We have held in many cases that the requirement of the statute as to this request must be complied with, and that, where there is a failure to comply with any of the substantial requirements of this statute, the party making the sale or for whom the sale is made is guilty of a violation of the law, and subject to punishment therefor. State v. Gregory, 110 Iowa, 624, 82 N. W. 335;State v. Swallum, 111 Iowa, 37, 82 N. W. 439;Riser v. Tapper, 133 Iowa, 628, 110 N. W. 1038;Peak v. Biddinger, 133 Iowa, 127, 110 N. W. 292.

Defendant's counsel argue, however, that in contempt proceedings of this character the intent of the party is material, and that there should be no punishment for the violation conceded herein because of the good faith of the defendant Loper, but we have held otherwise. See cases heretofore cited and Lewis v. Brennan (Iowa) 117 N. W. 279;Long v. Joder (Iowa) 116 N. W. 1063;Lindsay v. Hatch, 85 Iowa, 332, 52 N. W. 226. It is also said that, where the trial judge has found the party charged guiltless of the contempt on the facts in the case, this court has no power to review said facts. This contention is also directly opposed to the decisions of this court. Lindsay v. Hatch, supra; Lewis v. Brennan, supra. In the Lindsay Case...