State ex rel. Eubanks v. Dick

• Decision Date: 08 July 1939
• Docket Number: 34300.
• Parties: STATE ex rel. EUBANKS, Co. Atty., v. DICK et al.
• Court: Kansas Supreme Court

92 P.2d 92

150 Kan. 230

STATE ex rel. EUBANKS, Co. Atty., v. DICK et al.

No. 34300.

Supreme Court of Kansas

July 8, 1939

Rehearing Denied Sept. 18, 1939.

Syllabus by the Court.

To justify maintenance of action to abate a liquor nuisance, it is necessary to show that place in question was one where intoxicating liquors were manufactured, sold, bartered or given away, where persons were permitted to resort to drink liquor or where liquors were kept for sale. Gen.St.1935 21-2130, 21-2131, 21-2136, 21-2137, 21-2139.

An owner's ignorance of wrongful use of his realty as a liquor nuisance will not defeat action to prohibit such use. Gen.St. 1935, 21-2131.

Proof of actual sale is unnecessary to justify maintenance of action against real estate to enjoin a liquor nuisance. Gen.St. 1935, 21-2131.

An owner of realty on which liquor nuisance is maintained by his tenants is liable for costs and ensuing charges of action to abate nuisance, where it is shown that owner knowingly permitted maintenance of nuisance. Gen.St.1935, 21-2101 21-2118, 21-2120, 21-2130, 21-2131, 21-2134 to 21-2137 21-2139.

That owner of realty knowingly permitted maintenance of a liquor nuisance thereon by his tenants may be proved directly or inferentially, and proof of any facts sufficient to excite suspicions of any prudent person and to put him on inquiry is equivalent to knowledge of the ultimate fact. Gen.St.1935 21-2131, 21-2137, 21-2139.

In action to abate a liquor nuisance, admission of an internal revenue liquor stamp found on premises was not error, notwithstanding that time for which it was issued had expired when it was found, person to whom it was issued was not identified and address noted was not that where stamp was posted. Gen.St.1935, 21-2131.

Actions to abate liquor nuisances and for injunctions are civil and not criminal, and the high degree of proof required in a criminal proceeding is unnecessary, although there must be proof of elements required by statute. Gen.St.1935, 21-2130, 21-2131.

Evidence that owner of realty signed bond or bonds of some of her tenants who were charged with unlawful possession of intoxicating liquor after raid of leased premises, that she procured other tenants and that, upon a second raid, liquor was found outside rear door and on other nearby property was insufficient to justify imposition of costs and attorney's fees against her in proceeding to abate the liquor nuisance. Gen.St. 1935, 21-2130, 21-2131, 21-2137, 21-2139.

Evidence that intoxicating liquor was found in leased premises, that one of tenants pleaded guilty to unlawful possession and that liquor was found near back door on a subsequent raid sustained judgment in rem against the premises on ground that they were being used for maintenance of a liquor nuisance. Gen.St.1935, 21-2130, 21-2131, 21-2139.

1. An owner of real estate on which an intoxicating liquor nuisance is maintained by his tenant may be held liable for the costs and ensuing charges of an action brought by the state to enjoin the maintenance of such nuisance, where it is made to appear the owner knowingly permitted the maintenance of such nuisance. Knowledge that such nuisance was maintained may be proved directly or inferentially, and proof of any facts sufficient to excite the suspicions of any prudent person and to put him on inquiry is equivalent to knowledge of the ultimate facts.

2. The record in an action to abate an intoxicating liquor nuisance examined, and held, the evidence did not sustain the finding of the trial court that the owner knowingly permitted the tenant to maintain the nuisance of which complaint was made, but did sustain the judgment in rem against the real estate being used for maintenance of a liquor nuisance.

Appeal from District Court, Sedgwick County, Division No. 3; Grover Pierpont, Judge.

Suit by the State, on the relation of Eli Eubanks, county attorney, against Clem Dick, Connie Busch and others to abate a liquor nuisance. From the judgment rendered, the last-named defendant appeals.

Judgment affirmed in part and reversed in part.

W. D. Jochems, J. Wirth Sargent, Emmet A. Blaes, Roetzel Jochems, and Robert G. Braden, all of Wichita, for appellant.

Jay S. Parker, Atty. Gen., and Tom Harley, Co. Atty., Harold A. Zelinkoff, Deputy Co. Atty., Eli Eubanks, and Ralph E. Gilchrist, all of Wichita, for appellee.

THIELE Justice.

Connie Busch appeals from a judgment abating and permanently enjoining certain described real estate as a place where a nuisance was maintained in violation of the intoxicating liquor laws of the state, and from a judgment for costs in connection therewith.

The real estate is described as that portion of a described tract "occupied by and commonly known as The Black Cat or Cats Sundries", in Sedgwick County. At the trial, it was agreed the building was known as 3805 Broadway and that the legal title stood in the name of Connie Busch. A plat offered in evidence shows that the Black Cat building faced east. Immediately to the north was another building, part of which was connected to the first, but there seems to have been no doorway between them. This north building at some undisclosed time was used as a hamburger stand. To the rear were six or seven cabins and garages used in connection with a gas filling station a short distance to the south of the Black Cat. A fence separated the Black Cat building from all of the cabins except one.

Pursuant to a duly filed petition and application for injunction, a temporary injunction issued on February 11, 1938, the defendants being Albert Dick, Clem Dick, Frank Busch and Connie Busch. This followed a raid of the premises under search warrant at which time one bottle of intoxicating liquor was found in the Black Cat and ninety-nine bottles were found in the building immediately to the north. There was taken from the wall of the main building a United States Internal Revenue special tax stamp bearing the legend: "Keep this stamp posted", showing payment of $25 tax--retail liquor dealer--expiring June 30, 1937 and issued to Frank Ridder, 3809 No. Broadway, Wichita. At the same time, defendants Clem Dick and Albert Dick, proprietors or occupants, were arrested and charged with unlawful possession of intoxicating liquors. Sometime thereafter Albert Dick pleaded guilty and was sentenced to imprisonment and fine, the fine being paid. The criminal action against Clem Dick was dismissed. On October 30, 1938, a sheriff's force again searched the property under warrant. At this time, W. W. LeBlond was in charge of the Black Cat, and James Miller was in charge of the filling station. William Morris was also arrested, but there is no showing as to what connection, if any, he had either with the Black Cat or the filling station. A partially filled bottle of gin was found in a slop bucket outside the back door of the Black Cat, and between the bucket and the side of the building was a glass full of gin. At a point possibly two hundred fifty feet to the northwest and possibly fifty feet northwest of the west cabin and to the west of the fence referred to above, twenty pints of intoxicating liquor were found. The record does not disclose what the place of storage was, or if the liquor was concealed, the manner of its concealment. LeBlond, Miller and Morris were arrested. On November 1, 1938, on motion of the state, they were made parties defendant to the action for an injunction. On November 15, 1938, an order to show cause why each of the defendants should not be held in contempt and why a padlocking order should not issue was made and trial thereon followed on December 5, 1938, at which the defendants Dick did not appear and were not represented. At the conclusion of all the evidence, each of the other defendants demurred and as to all of them, except Connie Busch, the demurrer was sustained.

The trial court found the temporary injunction should be made permanent and decreed that Clem Dick, Albert Dick and Connie Busch be enjoined from selling, delivering and giving away intoxicating liquors on the involved real estate, etc., and adjudged that the costs, including an attorney's fee of $100 to the county attorney, be paid by said three defendants. No padlocking order was made. The motion of Connie Busch for a new trial was denied and she appeals.

Under sufficient specifications of error, appellant presents three questions which will be considered.

The first is whether in a proceeding to abate a liquor nuisance the court may render a judgment for costs and attorney's fees and enter a permanent injunction against an owner of the premises in the absence of a showing either that the owner of the premises had knowledge a nuisance was being maintained on the premises by a tenant, or that the owner was implicated with the tenant. The second question is whether the evidence presented tended to show knowledge on the part of the owner that any liquor nuisance was maintained by her tenant, and the third question pertains to whether an allowance of a $100 attorney's fee was reasonable and proper.

It may be observed there is no evidence and no claim by the state that appellant was personally engaged in maintaining a liquor nuisance on her real estate. If she is to be held liable, it must have been established that she "assisted in maintaining" as that expression is used in the statutes pertaining to abatement of intoxicating liquor nuisances.

With respect to the first question, appellant presents a discussion of the legal test to be applied in determining who "assists" in maintaining the nuisance as a result of which an order of injunction, with resulting liability for costs, may issue. In that connection, our attention is directed to State v. Poggmeyer, 91 Kan. 633, 138 P 593, 51...