O'Neil v. State ex rel. Baker

• Decision Date: 29 November 1947
• Citation: 206 S.W.2d 780,185 Tenn. 534
• Parties: O'NEIL v. STATE ex rel. BAKER.
• Court: Tennessee Supreme Court

206 S.W.2d 780

185 Tenn. 534

O'NEIL v. STATE ex rel. BAKER.

Supreme Court of Tennessee.

November 29, 1947

Error to Criminal Court, Morgan County; Jesse L. Rogers, Judge.

Suit by the State, on the relation of Howard H. Baker, District Attorney General of the 19th Judicial Circuit Court, against H. F. O'Neil to have a liquor store declared a public nuisance. To review a decree for the petitioner, the defendant brings error.

Decree reversed.

Dagley & Joyce, of Wartburg, J. Ralph Tedder, of Rockwood, and Tyree B. Harris, III, and Walker & Hooker, all of Nashville, for plaintiff in error.

Howard H. Baker, of Huntsville, J. H. McCartt, of Wartburg, Ross H Williams, of Knoxville, and J. W. Stone, of Harriman, for defendant in error.

NEIL Chief Justice.

The defendant in error is the operator of a liquor store in Morgan County, at Oakdale, under a license issued to him by the State Commissioner of Finance and Taxation. On December 28, 1946, a local option election was held in Morgan County to determine whether or not the legalized sale of intoxicating liquors would be permitted in said county. Before the election commissioners could count the ballots and declare the result of the election, the said O'Neil filed an original injunction bill in the Chancery Court to restrain the commissioners from canvassing the returns and certifying the result on the ground that the said election was fraudulent and void. An injunction issued upon proper fiat of the Chancellor and it appears from the record before us that the votes in said election have never been counted. The result was never certified to the County Judge. The said injunction being in full force, the defendant continued to operate his liquor store. This was the existing condition when the present suit was instituted in the Criminal Court of Morgan County by the State on relation of Howard N. Baker, District Attorney General of the 19th Judicial Circuit Court, the said suit being to have O'Neil's liquor store declared a public nuisance as provided in Section 9324 et seq. of the Official Code. The relator filed as Exhibit A to his petition a tabulation of the votes alleged to have been cast in the several precincts of Morgan County in the local option election, based upon affidavits of various election officials.

The petition alleged that a part of the store was outside the corporation of Oakdale and that at the time of filing the petition the population of the town was less than 1,000. It is also alleged that the said liquor store constituted a traffic hazard and is a public nuisance. Upon the foregoing allegations the petitioner contends that the said O'Neil was violating the prohibition laws of the state.

The defendant filed a demurrer coupled with an answer. The five grounds of demurrer are as follows: (1) the bill showed on its face that defendant's right to operate a liquor store in Oakdale was under advisement in another court; (2) the petition shows on its face that the retail sale of liquor had not been illegal in Morgan County since December 28 1946, because a local option election held on that date had not been completed; (3) the petition showed that Oakdale is an incorporated town within the meaning of Chapter 49 of the Acts of 1939. Other grounds of the demurrer need not be stated.

In the answer there is a denial of the truth of averments that the county voted dry in the election and that defendant's store is a hazard.

The entire case was tried on a stipulation of facts and at the conclusion of the trial the presiding judge sustained the petition and entered a decree enjoining the defendant from further engaging in the sale of liquor. A motion for a new trial was made upon a number of grounds not necessary here to mention, which was overruled and an appeal to this Court prayed and granted.

The appellant has filed 11...