Barr v. Neel

• Decision Date: 07 June 1911
• Citation: 151 Iowa 458,131 N.W. 650
• Parties: BARR v. NEEL ET AL.
• Court: Iowa Supreme Court

151 Iowa 458

131 N.W. 650

BARR

v.NEEL ET AL.

Supreme Court of Iowa.

June 7, 1911.

Appeal from District Court, Jasper County; W. G. Clements, Judge.

Suit in equity to restrain defendant Neel from conducting an alleged liquor nuisance. The owner of the building was made a party defendant and the premises upon which the alleged nuisance was alleged to exist was also joined as a defendant. A temporary writ of injunction issued early in July of the year 1909, but the case was not heard on its merits until March of the year 1910, when, after hearing the testimony, plaintiff's petition was dismissed, and the costs were taxed to Jasper county. Plaintiff appeals. Affirmed.

Weaver, J., dissenting.

M. S. Odle and M. R. Hammer, for appellant.

McLain & Campbell, for appellees.

DEEMER, J.

Defendant Neel was the owner and proprietor of a restaurant and lunch counter in the city of Newton, and in connection therewith sold what are familiarly known as “soft drinks.” Among other things he sold as a beverage what is called in the record “Pabst Mead,” which the testimony shows contained 1.87 per cent. of alcohol. This was sold in the belief that it was a nonintoxicant and with the implied, if not express, consent of the police officials of the city. Certain residents of the city concluded that the sale of this liquor was contrary to law, and they had an analysis of it made. Following this analysis, a search warrant was sworn out, and all of the beverage then in defendant's possession was seized and finally condemned. This was before the commencement of this action. As soon as defendant learned that the liquid contained alcohol and could not lawfully be sold, he quit handling the same, and has at no time since sold or kept for sale intoxicating drinks. Close upon the issuance of the search warrant this action was commenced by the service of an original notice. The trial of the case was not had until about eight months thereafter, and the trial court dismissed the petition upon the theory that defendant had in good faith abated the nuisance and abandoned the sale of intoxicating liquors.

[1] Plaintiff says that defendant should have been held under what is known as the “boot leggers” statute, reading as follows: “Any person who shall, by himself, or his employé, servant or agent, for himself or any person, company or corporation, keep or carry around on his person, or in a vehicle, or leave in a place for another to secure, any intoxicating liquor as herein defined, with intent to sell or dispose of the same by gift or otherwise, in violation of law, shall be termed a ‘bootlegger.’ ” Code Supp. 1907, § 2461a. This is upon the theory that, as the testimony did not specifically identify the place of sale, it did establish the fact that defendant was a boot legger, and should have been enjoined under this statute. But we cannot lend our assent to such a doctrine. The testimony shows that defendant Neel ran a restaurant and lunch counter, although the exact description by lot and block was not given;...