Campbell v. Jackman Bros.

• Decision Date: 15 December 1908
• Parties: CAMPBELL v. JACKMAN BROS.
• Court: Iowa Supreme Court

140 Iowa 475

118 N.W. 755

CAMPBELL

v.JACKMAN BROS.

Supreme Court of Iowa.

Dec. 15, 1908.

Appeal from District Court, Blackhawk County; Franklin C. Platt, Judge.

The opinion states the case. Affirmed.

Dunshee & Dorn, for appellant.

W. N. Birdsall, J. E. Williams, Boies & Law, and Carr, Hewitt, Parker & Wright, for appellees.

WEAVER, J.

This action was begun in equity to enjoin an alleged liquor nuisance in the city of Waterloo, Iowa. The defendants appeared thereto and answered admitting the use by them of the described premises as a place of business for the keeping and sale of intoxicating liquors, but pleading a state of facts showing their full compliance with all of the terms, restrictions, and requirements of the mulct tax law. Code, §§ 2432-2455, inclusive. To this answer the plaintiff demurred on grounds stated as follows: “First. The sale of intoxicating liquors at retail to be drunk as a beverage on the premises is destructive of the public safety, tends to idleness and the promotion of evil manners, and is therefore inherently immoral and unlawful and contrary to the first great principles of the social compact which lies at the foundation of every civilized government, and cannot be licensed under the Constitution of the state of Iowa or the Constitution of the United States. Second. The maintenance of a place for the sale of intoxicating liquors to be drunk as a beverage on the premises is destructive of the public morals, the public health, the public safety, tends to idleness and the promotion of evil manners, and is therefore inherently immoral and unlawful and contrary to the first great principles of the social compact which lies at the foundation of every civilized government, and cannot be licensed under the Constitution of the state of Iowa or the Constitution of the United States. Third. The sale of intoxicating liquors to be used as a beverage is under the laws of this state a public offense, and section 2448 of the Code, which is pleaded as a bar to the maintenance of this action, is in violation of the fundamental compact and the Constitution of Iowa, and is therefore void. Fourth. Every place which is kept or maintained in this state for the sale of intoxicating liquor to be used as a beverage is made by law a public nuisance, and it is not competent for the Legislature to license a public nuisance, and section 2448 of the Code is in violation of the fundamental compact and the Constitution of Iowa, and is therefore void. Fifth. Section 2448 of the Code, which is pleaded as a defense, is unconstitutional and void as being in conflict with the spirit and purpose of the Constitution of the state. Sixth. Section 2448 of the Code is unconstitutional and void, in that it is an attempt on the part of the legislative department of the state to barter away the health, morals, and welfare of the people for a pecuniary consideration, and therefore fundamentally inconsistent with the very purpose and end of all government. Seventh. Section 2448 of the Code, pleaded as a defense, is void and unconstitutional, in that it is an attempt of the legislative department of the government to invade the fundamental rights of individual citizens by legalizing public nuisances to the serious injury of private property. Eighth. Section 2448 of the Code is void and unconstitutional, in that it is calculated to prevent plaintiff in this action, an interested citizen of Blackhawk county, and the courts of said county, from restraining a public nuisance by injunction. Ninth. Section 2448 of the Code is null and void and unconstitutional, for the reason that it is an attempt of the Legislature to grant an indulgence for the future violation of the criminal laws of the state for a money consideration, and the Legislature has no power either inherent or specifically granted by the Constitution to make such a provision. Tenth. That it is a necessary implication for the words of the Constitution declaring the objects of government that the Legislature has no power for a money consideration to make legal provision whereby the criminal laws of the state may be violated in the future without penalty or punishment therefor.” The court having overruled the demurrer, the plaintiff elected to stand thereon, and, judgment being entered against him for costs, he brings the case to this court by appeal.

Without attempting to discuss seriatim all of the propositions and points advanced by counsel, we discuss those which are manifestly of controlling importance.

1. It is said that, notwithstanding the mulct law and amendments thereto, the business of keeping and selling intoxicants in this state is still prohibited by statute (Code, §§ 2382-2384), and the remedy by injunction will therefore lie under Code, § 2405. These sections do provide a sweeping general prohibition of the liquor traffic, declare it a nuisance, and provide for its injunction at the suit of any citizen of the county. This law, it is contended, still stands unrepealed, because the later act not only does not in terms repeal the prohibition contained in the prior statute, but expressly disclaims such purpose. The language of the later statute, commonly known as the “mulct law,” so far as it bears upon this particular question, provides that “nothing contained in this chapter so far as it relates to the mulct tax shall in any way be construed to mean that the business of the sale of intoxicating liquors is in any way legalized, nor as a license, nor shall the assessment and payment of any tax for the sale of liquors as aforesaid protect the wrongdoer from any penalty now provided by law except as the same is provided in the next section.” Code, § 2447. The next section recites the various conditions and requirements necessary to be observed before the mulct law shall be held to operate as a defense to liquor prosecutions, and provides that, where all these conditions and requirements are observed, “no proceeding shall be maintained against any person who has paid the last quarterly assessment of the mulct tax nor against any premises as a nuisance on account of the selling or keeping for sale therein or thereon by such persons of such liquors.” Reading only the legislative disclaimer of any intent to legalize or license the traffic which we have quoted from section 2447, the contention by counsel could well be upheld; but the saving clause with which that section closes, “except as same is provided in the next section,” indicates that its true meaning and effect can be determined only by reading the two sections together. Pursuing this method, we find that the statutory protestation against construing these terms into a license or legalization of the business is by express enactment so far waived as to exempt the dealer from any of the penalties of the law and make his place of business immune against injunction as a public nuisance in all cases where the provisions of the mulct tax act have been complied with. In other words, while saying by way of preface that it proposes neither to legalize or license the business, it adds an exception by which it does both, to such an extent at least that so long as the liquor dealer shall observe the specified conditions he is relieved from punishment and his property is relieved from condemnation as a nuisance. That such is the effect of the law this court has already decided, and we still see no way of escaping the conclusion. State v. Van Vliet, 92 Iowa, 476, 61 N. W. 241;McKeever v. Beacom, 101 Iowa, 173, 70 N. W. 112;Phillips v. Gifford, 104 Iowa, 458, 73 N. W. 1033;Iowa City v. McInerny, 114 Iowa, 586, 87 N. W. 498.

The effect of any sweeping, general statutory provision which is followed by or coupled with an express exception naturally and necessarily depends upon the nature and extent of the exception, and, if this be of such character as to emasculate the principal clause or render any of its terms meaningless, the courts are nevertheless required to give effect to such exception, whatever they may think of the candor or want of candor which controlled the phraseology of the law. Shakespeare has said there is “much virtue in ‘If,’ ” and, had that great man lived to witness the course of prohibitory legislation in Iowa, he would doubtless accord equal potency to “except.” The office of an exception in the statute is, generally speaking, to take or exclude from the operation of the statute certain things or subjects which would otherwise be included therein (see Bouvier's Law Dictionary), and, where the exception is clearly expressed and is within the constitutional power of the Legislature, those who question its justice, wisdom, or policy must seek the remedy at the hands of the Legislature itself. As already stated, the court is without power in the premises except to give effect to the statute as it stands. In its general effect this statute as a whole provides a species of local option whereby the selling or keeping for sale of intoxicating liquors, though generally prohibited, is allowed in counties and other municipalities where the specified conditions and restrictions shall have been properly observed. That which the law permits to be done is lawful, and, as appellant's demurrer admits that appellee has complied with all of the conditions of the mulct tax law, the court did not err in overruling the demurrer, unless we are to hold the statute itself invalid. If, as counsel suggest, the statute itself is as it stands a cowardly evasion, a legislative monstrosity with two faces, one of which smiles encouragement to the prohibitionist, while the other winks indulgently to the liquor dealer, a product born of political coyness which, while saying it would “ne'er consent, consented,” yet these considerations can be allowed no weight by the court. The inquiry here is one of legislative power to enact the statute, and to that we shall give our attention in the next paragraph of this opinion.

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