Schmidt v. Cobb Malley v. Farley

• Decision Date: 25 October 1886
• Citation: 119 U.S. 386,30 L.Ed. 321,119 U.S. 286,7 S.Ct. 1373
• Parties: SCHMIDT and another v. COBB. O'MALLEY v. FARLEY
• Court: U.S. Supreme Court

119 U.S. 286

7 S.Ct. 1373

119 U.S. 386

30 L.Ed. 321

SCHMIDT and another v. COBB.

O'MALLEY

v. FARLEY.

October 25, 1886.

Proceeding by petition in equity, by E. M. Cobb, appellee, against Alfred Schmidt and Titus Schmidt, trading as Schmidt Bros., appellants. The petition was filed in the district court of Dubuque county, Iowa, September 4, 1884, and had for its object the abatement of an alleged nuisance maintained by the appellees in the form of a saloon in the city of Dubuque. The suit was instituted under the following sections of the Amended Code of Iowa:

'Sec. 1526. Any citizen of the state, except hotel-keepers, keepers of saloons, eating-houses, grocery-keepers, and confectioners, is hereby permitted, within the county of his residence, to manufacture or buy and sell intoxicating liquors for mechanical, medicinal, culinary, and sacramental purposes only: provided, he shall first obtain permission from the board of supervisors of the county in which such business is conducted,' etc.

'Sec. 1540. If any person not holding such permit, [viz., to buy and sell intoxicating liquors for the purposes set out in section 1526,] by himself, his clerk, servant, or agent, shall directly or indirectly, or by any device, sell, or in consideration of the purchase of any other property give, to any person any intoxicating liquors, he shall for the first offense be deemed guility of misdemeanor,' etc.

'Sec. 1542. No person shall own or keep, or be in any way concerned, engaged, or employed in owning ork eeping, any intoxicating liquors, with intent to sell the same, within this state, or to permit the same to be sold therein in violation of the provisions hereof; and any person who shall so own or keep, or be concerned, engaged, or employed in owning or keeping, such liquors with any such intent, shall be deemed for the first offense guilty of a misdemeanor.' (The offender is then subjected to cumulative penalties, the maximum being $500 fine, or six months in the county jail, or both.)

'Sec. 1543. In cases of violation of the provisions of either of the three preceding sections, or of section fifteen hundred and twenty-five of this chapter, the building or erection of whatever kind, or the ground itself, in or upon which such unlawful manufacture or sale, or keeping with intent to sell, use, or give away, of any intoxicating liquor, is carried on or continued or exists, and the furniture, fixtures, vessels, and contents, is hereby declared a nuisance, and shall be abated as hereinafter provided; and whoever shall erect or establish, or continue to use, any building, erection, or place, for any of the purposes prohibited in said sections, shall be deemed guilty of a nuisance, and may be prosecuted accordingly, and upon conviction shall pay a fine of not exceeding $1,000, and costs of prosecution, and stand committed until the fine and costs are paid; and the provisions of chapter 47, tit. 25, of this Code shall not be applicable to persons committed under this section. Any citizen of the county where such nuisance exists, or is kept or maintained, may maintain an action in equity to abate and perpetually enjoin the same; and any person violating the terms of any injunction granted in such proceedings shall be punished, as for contempt, by a fine of not less than five hundred nor more than one thousand dollars, or by imprisonment in the county jail not more than six months, or by both such fine and imprisonment, in the discretion of the court.'

The 'petition' as amended is as follows:

'The plaintiff, agent of the Citizens' Law and Order League of Dubuque, complaining, shows to the court and avers as follows:

'Paragraph 1. That he is a citizen of Dubuque county, state of Iowa.

'Par. 2. That defendants, Schmidt Brothers, a firm com- posed of Albert Schmidt and Titus Schmidt, at the city and county of Dubuque, at the Iowa brewery, so called, situated upon Couler avenue, in said city, and upon lot number 5, in Brewery addition, as platted and recorded with Dubuque deeds, have established a saloon for the keeping and sale of intoxicating liquors, towit, whisky, gin, wine, and beer, at retail, as a beverage, in violation of law; and are now keeping, and employed and engaged in keeping, said intoxicating liquors in said saloon, with the intent to sell the same, and with the intent to permit the same to be sold therein contrary to the provisions of section 1542 of the Code of Iowa, as amended and substituted by an act of the general assembly of the state of Iowa, approved April 3, 1884.

'Par. 3. That in the month of August, 1884, the said defendants, in the saloon aforesaid, did, by themselves, their clerk, agent, and servant, sell to divers and sundry persons intoxicating liquors, to-wit, whisky, wine, gin, and beer, contrary to the provisions of section 1540 of the Code of Iowa as amended and substituted by an act of the general assembly of the state of Iowa, approved April 3, 1884, at retail and as a beverage.

'Par. 4. That said defendants, at the saloon aforesaid, have heretofore, to-wit, since the fifteenth day of July, 1884, by themselves, their clerk, agent, and servant, sold, and continue from day to day to sell, intoxicating liquors, to-wit, whisky, wine, gin, and beer, as a beverage, contrary to law, at retail and as a beverage.

'Par. 5. That said defendants are the owners of the premises aforesaid, and are the owners of certain whisky, gin, wine, and beer, kept and contained in certain kegs, bottles, and other vessels for illg al sale upon said premises as aforesaid, and are the owners of certain furniture and fixtures on the said premises used in said business.

'Par. 6. Whereby and by reason of the premises, and in manner and form as aforesaid, the said defendants, Schmidt Bros., at the saloon and place aforesaid, have established, and are now keeping and maintaining, a nuisance, to the great injury of the plaintiff, and other good citizens of said county, and to the detriment of the public peace and safety, and, unless restrained by the order and decree of this court, will continue to keep and maintain said nuisance at said place in violation of law, and to the public injury. Wherefore plaintiff prays that said saloon and place be adjudged and decreed to be a nuisance, and that the same be abated, and said defendants be enjoined by preliminary injunction from further keeping or maintaining said saloon and place for the illegal sale of intoxicating liquors, and also from keeping the said liquors with intent to sell the same therein contrary to law; and also from selling the same in said saloon contrary to law, either by themselves, or their clerk, agent, or servant; and that upon final hearing said injunction be made perpetual; and that plaintiff have such other and further relief as in equity he is entitled to; and also that he have judgment for costs.'

August 29, 1885, the defendants filed a petition for removal. The petition, as amended, is as follows:

'(1) Your petitioners, the above-named defendants, show to the court that they are, and five years last past have been, citizens of the United States, and the state of Iowa, residing in the state of Iowa.

'(2) That long prior to the fourth day of July, A. D. 1884, and ever since that time, they have been engaged in the business of brewing beer, and selling the same at both wholesale and retail, and they have kept upon the premises mentioned in the petition, being the same premises upon which said beer is manufactured, which said premises have all said time belonged to and are now owned by defendants, and contain large breweries, erected for the purpose of manufacturing beer, and for no other purpose, and are suited for no other purpose, a room and bar where said beer so manufactured is kept for sale, at retail, which is the keeping of a saloon charged in the petition herein, and not other or different, and defendants claim that such business is legal under the laws of Iowa.

'(3) That they have invested in said business of brewing and selling beer a large sum of money, and there is involved in this case, in addition to the personal rights of defendants, the sum of ten thousand dollars, exclusive of costs, and more than that amount of property belonging to defendants will be rendered entirely worthless if plaintiff succeeds against them in the present action.

'4th. That there has been no trial or final hearing of this cause.

'5th. That the twentieth General Assembly of the State of Iowa passed an enactment which petitioner prays may be considered in this case, which by its terms went into...