Hammond v. King
| Decision Date | 19 February 1908 |
| Citation | 114 N.W. 1062,137 Iowa 548 |
| Parties | HAMMOND v. KING. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; W. H. McHenry, Judge.
This action was instituted by plaintiff, as a citizen of Polk county, to secure an abatement by injunction of a liquor nuisance alleged to be maintained by defendant. The court refused to grant an injunction, and taxed the costs to plaintiff, and plaintiff appeals. Reversed.Dunshee & Dorn, for appellant.
Halloran & Starkey, for appellee.
The allegation of the petition is that the premises on which defendant is carrying on the business of selling intoxicating liquor in Des Moines constituted a nuisance, for the reason that on March 12, 1906, the day of the school election in that city, liquors were sold on said premises in violation of law. The case was presented to the lower court on an agreed statement of facts, from which it appears that the defendant was prior to the date above mentioned, and since has been, engaged in the sale of intoxicating liquors on his premises in compliance with the provisions of the mulct law, unless it be found that it was a violation of law to sell liquor on the day of the school election. It appears from the recitals in this agreed statement, as well as from the argument of counsel for appellant, that the purpose of instituting this action was to secure a determination of the question whether a day of a school election is a day on which places for the sale of intoxicating liquors under the mulct law may be kept open. The provision of the law on this subject is “that the place * * * shall not be open at all, nor shall sales be made, on the first day of the week, commonly called, Sunday, nor on any election day or legal holiday, nor on the evening of such days.” Code, § 2448, par. 9. The trial judge, as appears from a written finding filed by him in the case, refused to pass on this question, but held that, as the agreed statement of facts did not show that, when the action was instituted, the defendant was keeping or maintaining a nuisance, an injunction could not properly be granted. In this view we cannot concur. The sale of intoxicating liquor in this state is prohibited, except as specially provided for (Code, § 2382), and the using of any building for the prohibited sale of liquor is a nuisance (Code, § 2384), which may be enjoined and abated in an action in equity brought by any citizen of the county (Code, § 2405). The payment of the mulct tax does not legalize the business as conducted by the person making such payment (Code, § 2447), but no proceeding shall be maintained against any person who has paid “a mulct tax nor against any premises as a nuisance on account of the selling or keeping for sale therein or thereon by such person of such liquors, provided” the statutory conditions as to the mulct tax are complied with (Code, § 2448). One of the conditions of the last stated section, as before said, is that the place shall not be open or any sales be made on an election day. Code, § 2448, par. 9. It is further provided that “whenever any of the conditions of the third preceding section [the section last above referred to] shall be violated * * * then a bar to proceedings, as provided in that section shall cease to operate and the person engaged in the sale of intoxicating liquors shall be liable to all the penalties provided in this chapter.” If, then, the defendant violated the provisions of the law by selling liquors on an election day, the bar to proceedings for enjoining his place as a nuisance was removed, and an action to enjoin the maintenance of such place as a nuisance could be maintained, not merely with reference to the illegal sales made on an election day, but with reference to the maintenance of his place as a place for the sale of liquor. So long as defendant complied with all the conditions of the sections relating to the payment of the mulct tax, he was conducting a business which was not illegal, and which could not be enjoined. McKeever v. Beacom, 101 Iowa, 173, 70 N. W. 112;Iowa City v. McInnerny, 114 Iowa, 586, 87 N. W. 498. But, if he violated one of these conditions, from that time on his business was illegal and subject to be enjoined, not merely as before suggested for the violation of the condition, but for maintaining a place for the sale of liquor after his statutory privilege had been forfeited by the violation of a condition. Under this view of the law, which is that consistently announced in the decisions of this court, the defendant after violating a condition of the mulct law on March 12th, if a sale on that day was prohibited, defendant was continuously keeping and maintaining a nuisance, and his business was still a nuisance when this action was instituted. See Code, § 2405. This nuisance the plaintiff asked to have abated. It is wholly immaterial under the statute that defendant had ceased to violate the conditions of the mulct law. Having once violated such conditions, his business became unlawful, and...
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