Haggart v. Stehlin
Decision Date | 14 December 1893 |
Citation | 35 N.E. 997,137 Ind. 43 |
Parties | HAGGART et al. v. STEHLIN et al. |
Court | Indiana Supreme Court |
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 appellee Heidt's demurrer to the complaint, and overruling appellants' demurrer to the answer of appellee Stehlin. The substance of the complaint is etc.
Stehlin's answer set up the fact that he had a license duly granted by the board of commissioners of Marion county, Ind., to carry on said saloon, and to sell therein intoxicating liquors by the drink, to be drunk 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 v. Emmons, 88 Ind. 279;Vert v. Voss, 74 Ind. 565;Reeves v. Howes, 104 Ind. 435, 6 N. E. 904;Low v. Studabaker, 110 Ind. 57, 10 N. E. 301;Bowen v. Striker, 100 Ind. 45;Insurance Co. v. Black, 80 Ind. 513;Insurance Co. v. Kittles, 81 Ind. 96;Dorrell v. Hanna, 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 contends 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 intrusted 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, 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 intrusted 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 has been unable to cite a single decision where such laws have been held unconstitutional. The only case cited by appellants' counsel upon the question as strongly affirms the constitutionality of such legislation as any of our own cases. Counsel has not only failed to cite authority in support of this contention, but he has not even suggested one single valid reason why such laws are in conflict with any provision of the constitution. His whole contention is founded on a total misconception of the object and effect of such laws. Counsel supposes the law was enacted for the protection of those engaged in the traffic, and to encourage and foster that traffic, and cites provisions of the constitution supposed to be inimical to such an...
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... ... Big ... Creek Stone Co. v. Seward, [1895], 144 Ind. 205, 42 N.E ... 464, 43 N.E. [225 Ind. 227] 5; Haggart v. Stehlin, ... [1893], 137 Ind. 43, 35 N.E. 997, 22 L.R.A. 577; ... Travelers' Ins. Co. v. Prairie School Township, ... [1898], 151 Ind. 36, ... ...
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Village of American Falls v. West
... ... Holt, 61 Iowa 529, 16 N.W. 595; Sawyer v. State Board of ... Health, 125 Mass. 182; Dec. Dig. "Nuisance," secs ... 35-84; 29 Cyc. 1249; Haggart v. Stehlin, 137 Ind. 43, 35 N.E ... 997, 22 L. R. A. 577.) ... Bissell ... & Baum, for Respondent ... "Where ... the ... ...
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