State ex rel. Dunlap v. Luckuck

• Decision Date: 03 May 1932
• Docket Number: 1735
• Citation: 44 Wyo. 218,10 P.2d 968
• Parties: STATE EX REL. DUNLAP, County and Prosecuting Attorney v. LUCKUCK, ET AL
• Court: Wyoming Supreme Court

10 P.2d 968

44 Wyo. 218

STATE EX REL. DUNLAP, County and Prosecuting Attorney v. LUCKUCK, ET AL

No. 1735

Supreme Court of Wyoming

May 3, 1932

APPEAL from District Court, Campbell County; HARRY P. ILSLEY, Judge.

Action by the State, on the relation of Earl Dunlap, County and Prosecuting Attorney of Campbell County, against Charles W Luckuck and Mary Luckuck. From judgment for plaintiff defendants appeal.

Judgment affirmed.

The cause was submitted by appellants on the brief of William B Cobb, of Casper, Wyoming.

The Federal decisions construing Sub-title 22 of the Prohibition Act should be, at least persuasive. The petition does not state a cause in equity. Defendants were entitled to a jury trial; even Congress may not say that a thing is a common nuisance, when in fact it is not. United States v. Cohen, 268 F. 420. Plaintiff had a plain, speedy and adequate remedy at law; there is no showing of irreparable injury. State v. Bernweiser, 39 Wyo. 319. Premises cannot be lawfully padlocked until final hearing of the case. Cornelius Search & Seizure, (2d) 771. The evidence was insufficient to prove existence of the nuisance. Mere selling of intoxicating liquor does not constitute a nuisance. People v. Cook, (N. Y.) 162 N.E. 539. Evidence of the reputation of the place was admissible as bearing upon the question of notice. State ex rel. v. Longpre, 35 Wyo. 432.

The cause was submitted for respondent on the brief of James A. Greenwood, Attorney General, Richard J. Jackson, and R. Dwight Wallace, all of Cheyenne, Wyoming.

The premises are now occupied under an order of the court granting a supersedeas pending appeal. The allegations of the petition are sufficient. 15 R. C. L. 406; Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273; Kidd v. Pearson, 128 U.S. 1, 9 S.Ct. 6; Eilenbecker v. Dist. Court, 134 U.S. 31, 10 S.Ct. 424; U. S. v. Butler, 278 F. 677; Denapolis v. U.S. 3 F.2d 722, 723; U. S. v. Eilert Brewing and Beverage Co., 278 F. 659; Lewinsohn v. U.S. 278 F. 421; Sowers v. King, 32 Wyo. 167; Cornelius Search and Seizure, 498. The evidence was sufficient to support the judgment. State v. Bernweiser, 39 Wyo. 314; Edwards v. Wilson, 30 Wyo. 275. Points not briefed and argued by appellant are waived. Automobile Ins. Co. v. Lloyd, 40 Wyo. 44, 49. Evidence of general reputation is admissible. State v. Longpre and Cameron, 35 Wyo. 482. There was lawful authority for the issuance of a temporary restraining order. U. S. v. Ward, 6 F.2d 182. Defendant was not deprived of right to trial by jury. Cornelius Search and Seizure, 500; Lewinsohn v. U.S. 278 F. 421. Ellenbecker v. Plymouth Co., 134 U.S. 31.

KIMBALL, Chief Justice. BLUME and RINER, JJ., concur.

OPINION

KIMBALL, Chief Justice.

This is an action brought in the name of the state on the relation of the county and prosecuting attorney of Campbell county, under the act which now is Article 1 of Chapter 59, R. S. 1931, (Sec. 59-101 et seq.) for the purpose of enjoining and abating a statutory nuisance (Sec. 59-120) alleged to have been maintained by defendants in a building owned and occupied by them. The trial resulted in a permanent injunction against the continuance of the nuisance, and an order closing the building for one year. Sec. 59-121. The defendants appeal.

Defendants' demurrer on the ground that the petition failed to state facts sufficient to constitute a cause of action was overruled, and the ruling is assigned as error.

By the statute, "any * * * building * * * where intoxicating liquor is * * * sold, kept or bartered in violation of this article * * * is hereby declared to be a common nuisance * * *." Sec. 59-120.

The petition alleges, among other things, that "defendants have during all the times hereinafter mentioned occupied and used said building and premises and did at and before the filing of this petition use and occupy the said building and premises for the purpose of storing, selling alcoholic liquors" of the prohibited kind. Perhaps, if this allegation stood alone, it would be defective as charging merely a "purpose," which sometimes means an unexecuted intent. See: Duke v. Marston, 64 N.H. 603, 15 A. 222. The petition, however, contains other allegations that are more definite. The next paragraph charges that on August 30, 1930, one of the defendants did occupy and use said building for the purpose of storing and selling prohibited liquors "and did then and there sell within and upon said premises about one-third of a pint of whiskey for the sum of fifty cents." Several following paragraphs contain similar allegations of sales by the bottle or glass by both defendants on October 15, October 22 (six sales) and November 26, 1930. Another paragraph alleges that on November 27, 1930, the defendants used and occupied the building "for the purpose of storing and possessing for purposes of sale" prohibited liquors, and "did then and there so possess about eight gallons of whiskey." The petition was filed November 27, 1930.

It is contended that the petition is defective in failing to allege that plaintiff will sustain irreparable injury or that the remedy at law is inadequate. The authority cited is United States v. Cohen, 268 F. 420, where it was held that the bill to enjoin a nuisance under Section 22 of the Volstead Act, 27 U.S.C.A. § 34 (like our Sec. 59-121, supra) failed to state facts to show inadequacy of the remedy at law. The opinion does not set forth the allegations of the bill, but from the discussion it is to be inferred that it alleged "a single sale, without more," (p. 423 of 268 F.) with no allegations of "the continuation or recurrence of law violation, or of facts strongly indicating either habitual sales, or long-continued violations, or such a recurrence of unlawful sales as to colorably indicate that the criminal prosecutions and penalties provided by other parts of the act are inadequate to cope with the situation." (p. 424 of 268 F.) It seems, therefore, that the bill in that case failed to show the existence of a nuisance as distinguished from a mere unlawful act of selling, and the opinion appears to be entirely consistent with what we said in State ex rel. Cone v. Bernweiser, 39 Wyo. 314, 319, 271 P. 13.

We think the petition in the case at bar, unlike the bill discussed in the United States v. Cohen, supra, states facts that show the habitual, continuous or recurrent use of the building by defendants for the keeping for sale and the selling of intoxicating liquors; and, therefore, charges the maintenance of the statutory common nuisance which, under principles recognized in State ex rel. Cone v. Bernweiser, supra, may be enjoined in equity. Of course, general allegations of irreparable injury and inadequacy of legal remedies would be mere conclusions. 5 Pomeroy Eq. Juris. § 1932 (§ 518). That the nuisance is offensive and injurious to the public has been declared by valid statute, and need not be the subject of allegation and proof. See: Carleton v. Rugg, 149 Mass. 550, 22 N.E. 55, 5 L. R. A. 193, 14 Am. St. Rep. 446. When, in an action by a public officer, a continuous or repeated statutory nuisance is alleged, we cannot see the need of any further allegations to invoke the equitable jurisdiction. See: 5 Pomeroy Eq. Juris. § 1928 (§ 514); Wright v. O'Brien, 98 Me. 196, 56 A. 647; State ex rel. Orr v. Kearns, 304 Mo. 685, 264 S.W. 775. The very purpose of the statute is to provide a remedy by prevention that is more prompt and effective than a criminal prosecution. Ex Parte Moore, (Wyo.) 44 Wyo. 92, 8 P.2d 818, 824; Lewinsohn v. United States, (C. C. A.) 278 F. 421. The contention that a criminal prosecution would be an adequate remedy in a case of continuing nuisance has been answered many times. United States v. All Buildings etc., 28 F.2d 774 and cases cited; Ex Parte Moore, supra.

The demurrer was rightly overruled. Whether or not the court might have required some of the allegations of the petition to be made more definite and certain we need not inquire, as no motion for that purpose was filed. Smith v. Stone, 21 Wyo. 62, 82, 128 P. 612.

Before trial, on an application heard January 6, 1931, a temporary injunction was issued. It was then also ordered that the building be closed and not occupied or used for any purpose until the further order of the court. The order closing the building was error. A mere reading of the statute (§ 59-121) makes it clear that an order forbidding the use and occupation of the building cannot be made an adjunct of the temporary injunction. Com. ex rel. Brown v. Marino, 91 Pa.Super. 201. The order, however, has spent its force and is now merged in the final judgment. The case was tried about a month later, and the final judgment, dated February 4 1931, from which the appeal is taken, orders the building closed for the period of one year as authorized by the statute. The year runs from January 5, 1931, thus, apparently, making allowance for the time the building had been closed under the previous erroneous order. We are not informed of anything further that can be done to cure the error. See: Brown v. Luehrs, 79 Ill. 575; Tehama County v. Sisson, 152 Cal. 167, 92 P. 64; White v. Nuckolls, 49 Colo....