Sopher v. State

• Decision Date: 25 June 1907
• Docket Number: No. 21,049.,21,049.
• Citation: 169 Ind. 177,81 N.E. 913
• Parties: SOPHER v. STATE.
• Court: Indiana Supreme Court

169 Ind. 177

81 N.E. 913

SOPHER

v.STATE.

No. 21,049.¹

Supreme Court of Indiana.

June 25, 1907.

Appeal from Circuit Court, Hamilton County; Ira W. Christian, Judge.

Edward Sopher was convicted of maintaining a public nuisance, and appeals. Reversed and remanded, with instructions to quash affidavit.

Shirts & Fertig, for appellant. C. M. Gentry, James Bingham, D. & C. White, and Doan & Orbison, for the State.

JORDAN, J.

The state commenced this action on March 9, 1907, upon an affidavit charging appellant with the commission of an alleged public nuisance. A motion to quash the affidavit, on the ground that it did not charge a public offense, was overruled. Appellant plead not guilty. Trial by the court, which resulted in finding the accused guilty, and assessing his punishment at a fine of $10. A motion for new trial, assigning as reasons therefor that the finding of the trial court was not sustained by sufficient evidence, and that it was contrary to law, and that the court erred in not allowing appellant to introduce in evidence a license granted to him to sell intoxicating liquors, was denied, and a judgment was rendered against him upon the finding. He appeals to this court, and assigns as error that the lower court erred, first, in overruling his motion to quash the affidavit, and, second, in denying his motion for a new trial. The affidavit upon which he was convicted, omitting the formal parts, is as follows: “James M. Lambert, being first duly sworn, upon his oath says that as he is informed and verily believes, on the 9th day of March, 1907, at said county and state, one Edward Sopher did then and there conduct and maintain a place where spirituous, vinous, malt, and intoxicating liquors were sold at retail, and a place where such spirituous, vinous, malt, and intoxicating liquors so sold at retail were drank on the premises where sold. That the place where said Edward Sopher sold said spirituous, vinous, malt, and intoxicating liquors at retail, to be drank on the premises where sold, is located in and on the only front ground floor room of the only twostory brick building situated on part of lot six (6) in square eight (8) in the original town now city of Noblesville, in Hamilton county, Ind. [the premises being described in the affidavit by metes and bounds]; said room fronting on Logan street at the corner of Eighth street and the public square in said city of Noblesville, Hamilton county, Ind. That said place above described where said spirituous, vinous, malt, and intoxicating liquors were sold on said 9th day of March, 1907, and said liquors to be drank on the premises where sold, is a public nuisance, and is to the injury of the citizens of Hamilton county and state of Indiana. That said Edward Sopher will continue to use said premises for the sale by retail of spirituous, vinous, malt, and intoxicating liquors, and will continue to permit the same to be drunk on the premises where sold, unless said nuisance is abated, and said Edward Sopher is restrained from so doing-all of which is contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Indiana.” But one witness on the trial was introduced upon the part of the state, and he testified that on the 9th day of March, 1907, appellant maintained and conducted a saloon in the city of Noblesville, Hamilton county, Ind.; that on said date he sold in his said saloon intoxicating liquors to various customers to be drank as a beverage on the premises where sold; that the saloon in question was situated and fronted upon Logan street, a public street in said city of Noblesville, on the northwest corner of the public square. This was all of the evidence given in the cause.

Appellant in his own behalf endeavored to show that on the day upon which he sold the intoxicating liquors and maintained and conducted his saloon, as charged, he had and held a license duly granted to him by the board of commissioners of said Hamilton county, under the laws of the state of Indiana, which license, or permit, authorized him to sell at retail intoxicating liquors in the saloon, or place, in controversy, to be drank upon the premises where sold. The state, through its attorneys, objected to the introduction of any evidence going to show that appellant at the time charged in the affidavit had or held the aforesaid license, upon the ground that such license was no defense to this prosecution. The court sustained this objection, and excluded the evidence, and would not permit appellant to prove that he held such a license. In fact this prosecution may be said to proceed upon the theory that the sale alone of intoxicating liquors at retail in a room or place kept for that purpose, such liquors to be drank as a beverage on the premises where sold, constitutes a public nuisance per se under and within the contemplation of section 534 of an act of the Legislature concerning public offenses, approved March 10, 1905 (Acts 1905, p. 709, c. 169; section 2179, Burns' Ann. St. Supp. 1905). That this is the theory of counsel for the state is by the latter conceded. The section in question reads: “Every person who shall erect, or continue and maintain any public nuisance, to the injury of any part of the citizens of this state, shall, on conviction, be fined not exceeding one hundred dollars.” This provision has formed a part of the criminal law of this state for over 60 years. It will be found incorporated in section 65, c. 53, of the Revised Statutes of 1843. It constitutes section 8 of the Revised Statutes of 1852 (section 8, 2 Rev. St. 1852, p. 428, pt. 3, c. 6), and is embraced in section 2065 of the Revised Statutes of 1881. It was re-enacted by the Legislature in 1905.

In Burk v. State, 27 Ind. 430, in construing this statute, the court said: “It defines, i. e. marks out with distinctiveness, a public nuisance.” While it is true that this statute expressly and distinctively declares it to be a public offense “to keep or continue and maintain a public nuisance,” nevertheless it omits to define or declare what particular act or acts on the part of the accused shall constitute a public nuisance. Hence, as held by this court in State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117, in placing a construction or interpretation upon this statute, we must resort to or look to the common law in order to discover whether the act or acts charged in the affidavit were regarded thereunder as constituting a public nuisance. In view of the fact that the law upon which this prosecution rests is a re-enactment by the Legislature of 1905 of the same statute as construed, or interpreted, in State v. Berdetta, supra, we may therefore presume, under a well-settled rule (Cain v. Allen [Ind. Sup.] 79 N. E. 201;Kunkle v. Abell [Ind. Sup.] 79 N. E. 753, and authorities there cited), that the Legislature, in re-enacting it, intended that it should be given the interpretation, or construction, accorded to it in State v. Berdetta, supra, and that, in a prosecution for a violation thereof, the court should turn or look to the common law to ascertain whether the act or acts charged constituted a public nuisance. The common law, together with acts passed by the British Parliament in aid thereof, prior to the fourth year of the reign of James the First is by adoption in force, and prevails in this state so far as applicable, and when not inconsistent with our fundamental laws, state or federal, and not inconsistent with the acts of our own Legislature or statutes enacted by Congress. Section 236, Burns' Ann. St. 1901; Dawson v. Coffman, 28 Ind. 220;La Fayette, etc., R. Co. v. Shriner, 6 Ind. 141;Stevenson v. Cloud, 5 Blackf. 92;Short v. Stotts, 58 Ind. 29;Latta v. Miller, 109 Ind. 302, 10 N. E. 100;Ledgerwood v. State, 134 Ind. 81, 33 N. E. 631. By a positive or express declaration of the Legislature, all public offenses, both felonies and misdemeanors, must be defined or declared, and “the punishment therefor fixed by statute and not otherwise.” Section 237, Burns' Ann. St. 1901. This statutory provision has stood as a governing rule or prescribed policy of the state, unrepealed, since its enactment in the revision of our laws in 1852, to the present time, and operates or serves as an exception ingrafted upon the act adopting the common law. Consequently no common-law crimes, punishable as such, exist in this state; but all public offenses must be declared or defined by the Legislature until section 237, supra, be repealed. Ledgerwood v. State, supra. It will be observed that there is no charge or allegation in the affidavit in this case to show that the sale of the liquors in question by appellant was unlawful, or that the room or place wherein they were sold and drunk was disorderly, or that such place or room was in any manner conducted and maintained in violation of law.

If it is true, as argued by counsel for the state, that the acts charged in the affidavit constitute a public nuisance per se, then it must be because such acts are unlawful. Nuisances are divided into public or private. A public nuisance, strictly speaking, arises out of the violation of public rights, and as a general rule results in no more special injury to one person than to another. Wood on Nuisances, § 1. such a nuisance always arises from unlawful acts. Consequently that which is lawful cannot be regarded in a legal sense as a public nuisance. Therefore, if the Legislature of the state, by a statute which it is competent for that body to pass, authorizes an act or acts to be done, which, in the absence of such a statute, would otherwise constitute a public nuisance, such act or acts are thereby made lawful, and cannot be considered or regarded in a legal sense as a nuisance so far as the public is concerned, unless the Legislature in enacting the statute has exceeded its power. Leigh v. Westervelt, 2 Duer (N. Y.) 618; Williams v. New York Central R. Co.,...