Kling v. United States

• Decision Date: 14 November 1925
• Docket Number: No. 4345.,4345.
• Citation: 8 F.2d 730
• Parties: KLING et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

8 F.2d 730 (1925)

KLING et al. v. UNITED STATES.^*

No. 4345.

Circuit Court of Appeals, Sixth Circuit.

November 14, 1925.

F. Henry Wurzer, of Detroit, Mich. (Wurzer & Wurzer, of Detroit, Mich., on the brief), for appellants.

Delos G. Smith, U. S. Atty., of Detroit, Mich.

Before DONAHUE and MOORMAN, Circuit Judges, and SESSIONS, District Judge.

DONAHUE, Circuit Judge (after stating the facts as above).

It is claimed on the part of the appellants that a court of equity has no power to deprive these defendants of the use of their property without a trial by jury, and that, if sections 21 and 22 of title 2 of the National Prohibition Act are so construed, they are unconstitutional. This court held in the case of Remus v. U. S. (C. C. A.) 291 F. 513, 517, that Congress, in exercise of the specific power granted by the Eighteenth Amendment, has authority to declare that any building kept and maintained for the illegal manufacture and sale of intoxicating liquor, shall be deemed a common nuisance. Mugler v. Kansas, 123 U. S. 624, 8 S. Ct. 273, 31 L. Ed. 205.

It was also held by the Supreme Court in Mugler v. Kansas, supra, that the equity power conferred upon the courts by the statute of the state of Kansas to abate a public nuisance without a trial by jury is in harmony with the settled principles of equity jurisprudence. The same conclusion was reached in U. S. v. Duignan (C. C. A.) 4 F.(2d) 983; Denapolis et al. v. U. S. (C. C. A.) 3 F.(2d) 722; U. S. v. Reisenweber et al. (C. C. A.) 288 F. 520.

It is further claimed on behalf of the appellants that any construction or interpretation of sections 21 and 22 of the National Prohibition Act that would have the effect or result in taking away the owner's right to the lawful and proper use of his property without introducing a scintilla of evidence or ground against them is a violation of the Fifth Amendment to the Constitution of the United States.

In answer to this it is sufficient to say that no such question is presented by this record. There is ample evidence of knowledge on the part of the owners that a nuisance was being maintained on these premises.

Judgment affirmed.

* Certiorari denied 46 S. Ct. 203, 70 L. Ed. ___.