Denapolis v. United States

• Decision Date: 10 February 1925
• Docket Number: No. 4313.,4313.
• Citation: 3 F.2d 722
• Parties: DENAPOLIS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

3 F.2d 722 (1925)

DENAPOLIS et al. v. UNITED STATES.

No. 4313.

Circuit Court of Appeals, Fifth Circuit.

January 13, 1925.

Rehearing Denied February 10, 1925.

John J. Reilley, of New Orleans, La. (Henry L. Landfried, of New Orleans, La., on the brief), for appellants.

Louis H. Burns, U. S. Atty., Edwin H. Grace, Asst. U. S. Atty., both of New Orleans, La.

Before WALKER and BRYAN, Circuit Judges, and CLAYTON, District Judge.

BRYAN, Circuit Judge.

This is an appeal from a decree declaring certain premises to be a common nuisance, and denying to appellants the right to occupy or use the same for a period of one year. The suit was brought by the United States under title 2, § 22, of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½k). The bill closely follows the statute, and avers that the appellants maintained the premises for the purpose of manufacturing and selling therein intoxicating liquors for beverage purposes, and would continue so to do unless enjoined. The owner was not made a party defendant, but the suit proceeded to a final decree against the appellants as lessees.

Appellee's evidence disclosed that on one occasion two prohibition agents and another person went upon the premises, which the appellants conducted ostensibly as a soft drink stand and restaurant, and that each of them purchased a drink of whisky; that on two other occasions the premises were searched and intoxicating liquors seized which contained one-half of 1 per cent. of alcohol by volume, or more. It is not shown who the owner of the premises was, to which of the appellants they were leased, or the relationship existing between them. Anthony Denapolis, one of the appellants, testified that he was the lessee at the time the injunction was issued, but that he did not become such until after the alleged sales were made and the premises were searched. He further testified that at the time the injunction was issued the premises were closed for repairs. The searches were made under search warrants which authorized the officers to whom they were issued "to investigate and search into and concerning said violations and to report and act concerning the same as required of you by law."

The record discloses that objection was made to the introduction of any testimony tending to show the possession of liquor upon grounds other than that the warrants did not require the search for and seizure of particularly described property.

The decree is attacked on the grounds: (1) That section 22 of the National Prohibition Act is unconstitutional, because it denies the right of trial by jury; (2) that the government has an adequate remedy at law; (3) that the bill is uncertain and indefinite; (4) that the owner of the premises is a necessary party; (5) that the search warrants are invalid, in that the property to be seized was not described therein, and that the liquor seized thereunder was therefore rendered inadmissible in evidence; (6) and that the evidence does not sustain the decree for the reasons, that none of the appellants had been previously convicted of any violation of the act, that sales were shown on one occasion only and before the appellant Anthony Denapolis became the tenant of the premises, and that, at the time the preliminary injunction was granted, the premises were closed for repairs.

1. The objection that section 22 is unconstitutional because it denies the right of trial by jury, and authorizes in the first instance a suit in equity to abate a nuisance, is not well founded. The same objection was made in Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed. 205, to a like statute adopted by the state of Kansas. In that case it was said: "As to the objection that the statute makes no provision for a jury trial in cases like this one, it is sufficient to say that such a mode of trial is not required in suits...