Hemmer v. Bonson
| Decision Date | 09 July 1908 |
| Citation | 117 N.W. 257,139 Iowa 210 |
| Parties | ELIZABETH HEMMER, Petitioner, v. ROBERT BONSON, JUDGE OF THE DISTRICT COURT, Respondent |
| Court | Iowa Supreme Court |
Certiorari to Dubuque District Court.-- HON. ROBERT BONSON Judge.
Writ sustained, and the decree of the district court annulled and cause remanded.
Wm Graham and Andrew P. Gibbs, for petitioner.
No appearance for respondent.
THE opinion states the material facts. Annulled and remanded.
Briefly stated, the case is as follows: In April, 1907, one Thorne, a citizen of Dubuque, began an action in equity, alleging that certain persons, named as defendants therein, were maintaining a liquor nuisance on lot No. 295 in said city, and asking that the same be enjoined, as provided by statute. To this petition the parties charged with maintaining the nuisance appeared and defended, and after due hearing the court found that the allegations of the petition had been sustained, and entered a decree of perpetual injunction in words as follows (omitting title):
Now on this June 12, 1907, a regular day of said court, the above-entitled cause came on for hearing, J. C. Chalmers, appearing as counsel for plaintiff, and H. Michel, appearing as counsel for defendants, and the court, after duly considering the pleadings, proof offered, and statements of counsel, finds, in pursuance thereof, the allegations of plaintiff's petition to be sustained in the particulars hereinafter specially enjoined: It is therefore ordered, adjudged, and decreed by the court that the defendant occupants, Schaffhauser Bros., be and are hereby perpetually enjoined from maintaining and continuing the condition complained of in the saloon, upon the premises described as city lot No. 295, in the city of Dubuque, county of Dubuque, and State of Iowa to the extent and in the particulars as follows: (1) From permitting or making sales of intoxicating liquors therein, or elsewhere, in any saloon in the Nineteenth judicial district, on the first day of the week, commonly called Sunday, or on the evening of such day, or general election days, and on Christmas. (2) From making sales of such liquors earlier than 5 o'clock a. m., or making sales later than 11 o'clock p. m., during the week days. (3) From knowingly making sales of such liquors to men who have taken the so-called cures for drunkenness, minors and drunkards. (4) From the sale of such liquors to any person whose wife, husband, parent, child, brother, sister, guardian, ward over 14 years of age, or employer shall, by written notice, forbid the same. (5) From having any obscene pictures in said saloon. (6) From permitting gambling with cards, dice, billiards, by bowling, or by maintaining slot machines, in said saloon, or permitting music, dancing, or other like form of entertainment therein. (7) From establishing or conducting any new saloon without first obtaining a resolution of the city council of the city of Dubuque consenting thereto, and filing same with the county auditor. (8) From having any women employed in said saloon, from serving any free lunches therein, and from conducting said saloon otherwise than in a quiet, orderly manner. (9) From conducting a saloon on the premises described herein, or elsewhere in this Nineteenth judicial district of Iowa while holding any township, town, city, or county office to which he may hereafter be elected. (10) From allowing any wine rooms in or as a part of said saloon. (11) From the sale of such liquors in the saloon on the premises herein described, in any other than a single room, and from erecting or maintaining screens or blinds in front of said saloon or obstruct the view from the street, except that blinds or screens not more than five feet in height, measuring from the sidewalk, may be maintained during the times when sales are not otherwise herein prohibited. (12) The defendant owner, Geo. Schaffhauser, is hereby perpetually enjoined from knowingly permitting any violation of the terms of this decree in the saloon upon the said described premises. (13) Judgment is hereby rendered against the defendant occupant Schaffhauser Bros. for the costs of this action, taxed at $ , including the statutory attorney's fee of $ 25 for plaintiff's attorney, and the same shall be and remain a lien against the premises herein described until fully paid, and execution shall issue therefor unless sooner paid.
It will be observed that this decree does not enjoin the defendants from continuing to keep and sell intoxicating liquors upon the premises; but, on the contrary, in form and substance, it presupposes the continuance of the business. The injunction goes no further than to regulate such business in certain particulars. It does not recite or find that the provisions of the mulct law so called had ever been compiled with by the county or State, or that the defendants had in any manner attempted to observe the conditions necessary to entitle them to the protection of said statute. While enjoining some of the acts forbidden by the statute, it directly or inferentially permits others, which are no less positively forbidden, even where the mulct law is in force. See Code, section 2448. For instance, it not only leaves the defendants at liberty to sell, but to continue the sales until eleven o'clock at night, to put up screens five feet high at the windows of the saloon, to provide the room with chairs, benches, and tables, to conduct the business without bond, and without the consent of the adjacent property owners, and in many other ways it ignores the express provisions of the statute. Thereafter, neither party named in said proceedings having appealed, and the time for such appeal having expired, the plaintiff herein, a citizen of the State and county, and owner of property adjoining the lot on which the business was being maintained, applied to this court for a writ of certiorari to review said decree. The writ being allowed and served, the judge presiding at the rendition of the decree made return and answer thereto as follows:
First, denies the jurisdiction of this court to consider and pass upon the validity of the decree; second, alleges that the writ is not sued out in good faith by the petitioner, but to compel the defendants in the decree to purchase her property at an exorbitant price; third, that the decree was entered by the consent of the parties and counsel, and with the oral statement of the court, and the understanding by all persons concerned, that it was not to be regarded as a permit or license to violate the law of the State.
Other matters are averred having no relevancy to the complaint made, except to make clear the good faith of the respondent, but his good faith not having been assailed by the petitioner, and not being questioned by this court, we shall not take time to recite them here.
The first and only serious question suggested relates to the right...
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