Haggart v. Stehlin

• Decision Date: 14 December 1893
• Docket Number: 16,142
• Citation: 35 N.E. 997,137 Ind. 43
• Parties: Haggart et al. v. Stehlin et al
• Court: Indiana Supreme Court

35 N.E. 997

137 Ind. 43

Haggart et al. v. Stehlin et al

No. 16,142

Supreme Court of Indiana

December 14, 1893

Petition for Rehearing Overruled March 14, 1894.

From the Marion Circuit Court.

The judgment is reversed, the cause remanded, with instructions to overrule the separate demurrer of Heidt to the complaint and sustain the appellants' demurrer to appellee Stehlin's answer.

E. F Ritter, for appellants.

J. W Kern and L. O. Bailey, for appellees.

McCabe, J. Howard, C. J. Hackney, J.--I concur in the dissenting opinion.

OPINION

McCabe, J.

Suit by appellants against appellees, for damages on account of an alleged nuisance, and for a perpetual injunction against the same.

A separate demurrer by appellee Heidt was sustained, and a separate demurrer by appellee Stehlin, for want of facts, was overruled to the complaint. A demurrer to his answer was overruled, and appellants refusing to plead further, appellees had judgment on the demurrers.

The only errors assigned and noticed in appellants' brief are the sustaining of appellee Heidt's demurrer to the complaint and the overruling of appellants' demurrer to the answer of appellee Stehlin.

The substance of the complaint is that appellants have, for five years, owned and resided in, and still reside, in a dwelling house on lot 9, in block 21, in Johnson's heirs addition to the city of Indianapolis, situated on College avenue, in the second ward of said city; that the people of the locality named have been distinguished for fifteen years for a high grade of morality, good order and sobriety, and, until the acts hereinafter complained of, there was not a saloon, where persons could assemble to buy and drink intoxicating liquors, in said second ward, nor where intoxicating liquors were sold to be drank on the premises within said ward; that said ward has within its boundaries nine churches, an orphan asylum, where about one hundred children were kept and cared for, when the acts hereinafter complained of began, another orphan asylum enterprise under way, and a female college, the public school largely attended, all in the neighborhood of the premises aforesaid; that the neighborhood of said premises is settled by and composed largely of religious, church-going people, who are opposed to saloons and places where persons are invited to assemble and buy and drink intoxicating liquors; that the real estate and residences in that locality, prior to the acts hereinafter complained of, were sought for by a class of people whose views and sentiments were in harmony with the aforesaid conditions and facts, and real property situated therein had an enhanced value because of said facts, both intrinsically and for rental purposes; that plaintiffs' property is situated where it was most favorably affected by the conditions aforesaid; that there are no manufacturing establishments or business houses excepting a few small groceries, meat shops and drug stores in the neighborhood; that on a lot adjoining plaintiffs' premises there is a house coming out to the sidewalk and fronting on College avenue, and only ten feet between said building and plaintiffs' said residence; that on June 17, 1890, defendant Stehlin established a saloon upon said premises, and has ever since continued the business of selling intoxicating liquors and permitting the same to be drank on the premises; that he advertised his said business by causing to be printed on the front of said building the words, "Aurora Beer Hall," also, on the front windows, the words, "Stehlin's Sample Room," and, on the south, along the side of said building, in letters a foot in length, the word, "Saloon"; that he provided an entrance thereto from the front on said College avenue, from the side on said seventh street, and by the rear from an alley on the east, all of which have ever since been maintained by him; that persons have continually ever since been invited and received by said defendant upon said premises to, and do, buy from him and drink intoxicating liquors, and meet together upon the said premises for the purposes of drinking intoxicating liquors, and are seen by the public going in and coming out of said premises at each of said entrances to the same, for the purpose aforesaid; that the said saloon business, the place established where persons are invited to go, to meet and drink intoxicating liquors, the said advertisements, the meeting of persons, and their drinking intoxicating liquors at such place, and the other acts and conduct aforesaid, are, severally and altogether, exceedingly odious and offensive to these plaintiffs, and to the persons who seek residences in said locality, and to persons who desire to purchase real estate therein, and are great injuries and disturbance to the good order, morals and peace of said community; that plaintiffs' enjoyment of their said premises, by reason of the acts aforesaid, has been greatly disturbed and lessened; that their premises, which would have rented for $ 35 per month, have been so damaged in their rental value that they would not, so long as said saloon business shall be continued where it is, rent for more than $ 20 per month; that said premises would readily have sold for, and were of the value of, $ 5,500, but because of the aforesaid facts, would not sell for more than $ 3,000; that defendant Heidt owns said premises, and rents them to defendant Stehlin, for the purposes aforesaid, for $ 50 per month, which would not rent for $ 25 for any other purpose.

Said defendants claim that they are authorized and protected in the conduct of said business and other acts aforesaid by virtue of a license issued by the Board of Commissioners of Marion County, Indiana, to said defendant Stehlin, which plaintiffs deny, and say said claim is false; that plaintiffs have been damaged by defendants' aforesaid wrongs, in the sum of $ 2,000.

Prayer for judgment for said sum, and for a perpetual injunction against the longer maintenance of said saloon, etc.

Stehlin's answer set up the fact that he had a license duly granted by the Board of Commissioners of Marion County, Indiana, to carry on said saloon, and to sell therein intoxicating liquors by the drink, to be drank on the premises, under the liquor license law.

One question presented by the record, therefore, is, whether the license alleged constitutes a valid defense to the supposed cause of action set up in the complaint; and the only other question is, does the complaint state a valid cause of action against appellees. The sufficiency of the complaint is the first question, because, if it is insufficient, there was no available error in overruling a demurrer to the answer of Stehlin, even though that answer was bad. State, ex rel., v. Emmons, 88 Ind. 279; Vert v. Voss, 74 Ind. 565; Reeves v. Howes, 104 Ind. 435, 6 N.E. 904; Low v. Studebaker, 110 Ind. 57, 10 N.E. 301; Bowen v. Striker, 100 Ind. 45; AEtna Ins. Co. v. Black, 80 Ind. 513; AEtna Ins. Co. v. Kittles, 81 Ind. 96; Dorrell v. Hannah, 80 Ind. 497; Ice v. Ball, 102 Ind. 42, 1 N.E. 66.

Much labor and learning is expended by appellants' counsel in a contention that the license alleged in Stehlin's answer was invalid because the act approved March 17, 1875, requiring such a license to be taken out as a condition to sell intoxicants by the drink is unconstitutional. Why appellants' counsel so contend is a mystery to this court. If such contention were upheld, it is difficult to see how it could help the appellants. They are asking damages for, and an injunction against, an alleged nuisance created by the sale of intoxicants by the drink, in close contact with their dwelling house. But for the liquor license law, every man in the ward, every man, woman, and child in the city could, if they chose, engage in the traffic without giving bond to keep an orderly house, without establishing their fitness to be entrusted with the sale of intoxicants, and without any other of the many restrictions and burdens that that statute imposes upon the traffic.

With that statute obliterated, the appellees could stand up and say, our business stands on the same legal basis as that of the dry goods merchant, the groceryman, the hardware merchant, or any other legitimate business or traffic. There is no mark of the public ban upon it, and our business stands the equal before the law of all other branches of traffic, and, therefore, we can no more be subjected to the charge of being the maintainers of a nuisance than the dry goods merchant. On the other hand, the license law treats the traffic as dangerous, as dangerous to public and private morals, dangerous to public peace and the good order of society, and, therefore, imposes heavy burdens upon it, among which is a heavy license fee to the county and city, and throws around it severe restrictions and liabilities upon those who engage in it, and of whom it requires proof of their fitness to be entrusted with the sale of the dangerous thing. With such a law in force, and springing as it does from such a public policy, as old as the State government, it is and must be easier to reach the conclusion that a licensed saloon might be kept in such a place as to make it a nuisance per se, than if the law and the policy upon which it is founded were obliterated, as appellants' counsel would have us do. So it seems quite apparent to us, if appellants' contention that the license law is unconstitutional should prevail, it would weaken rather than strengthen their position.

Such laws have been in existence from the earliest times, and the courts everywhere have upheld their constitutionality, and appellants' counsel have been unable to cite a single decision where such laws have been held unconstitutional.

The only case...