State ex rel. Good v. Boyle

• Decision Date: 12 November 1947
• Docket Number: 7360
• Citation: 67 Idaho 512,186 P.2d 859
• Parties: STATE ex rel. GOOD, Prosecuting Attorney, v. BOYLE et al
• Court: Idaho Supreme Court

186 P.2d 859

67 Idaho 512

STATE ex rel. GOOD, Prosecuting Attorney, v. BOYLE et al

No. 7360

Supreme Court of Idaho

November 12, 1947

Appeal from District Court, Sixth District, Bingham County; Doran H Sutphen, Presiding Judge.

Affirmed as modified.

John R Black, of Pocatello, for appellant.

A statutory provision declaring that any place where intoxicating liquor is manufactured, sold or kept in violation of law is a nuisance and authorizing its abatement contemplates a continuity of criminal action extending over a substantial period of time. A single sale, as such, is outside the purview of such provision. 30 American Jurisprudence Section 514, page 521; Webb v. United States, 8 Cir., 14 F.2d 574, 49 A.L.R. 612; U. S. v. Cohen, D.C., 268 F. 420; U. S. v. Ward, 3 Cir., 6 F.2d 182; Galligan v. United States, 7 Cir., 282 F. 606; McFarland v. U.S. 7 Cir., 295 F. 648; State ex rel. Vance v. Crawford, 28 Kan. 726, 42 Am.Rep. 182; State ex rel. Harley v. Harness, 152 Kan. 468, 105 P.2d 885.

The ex parte certificate of a public officer as to what the records kept in his office show or prove, is not admissible in evidence and the unauthenticated written statement of a deputy Collector of Internal Revenue made outside of Court is not admissible in evidence over objection, particularly where no foundation is laid to show compliance with the statute. Trotter v. State, 77 Okl.Cr. 368, 141 P.2d 812; State v. Wilson, 141 La. 404, 75 So. 95, Ann.Cas.1918D 789. Chapter 217, 1939 Session Laws of Idaho, Section 909.

Under the provisions of Chapter 274, Idaho Session Laws, 1947, the retail sale of liquor by the drink is now authorized and the sale of alcoholic liquor does not constitute a liquor nuisance unless sold in violation of said Act. An injunction will not issue to prohibit the performance of a legal act, and generally will not issue to enjoin a criminal act. 28 Am.Jurisprudence p. 336, Sec. 148; City of New Orleans v. Liberty Shop, 157 La. 26, 101 So. 798, 40 A.L.R. 1136; Heber v. Portland Gold Min. Co., 64 Colo. 352, 172 P. 12, L.R.A.1918D, 681; 28 Am.Juris. 201, Sec. 8.

The Prosecuting Attorney, alone, may maintain an action of an equitable nature, as relator in the name of the State of Idaho to abate a liquor nuisance, and failure to plead or prove the authority of the plaintiff is fatal to his case, and the Court has no jurisdiction. Chapter 217, 1939 Session Laws of Idaho, Section 1005; 28 Am.Juris., p. 455, Sec. 280.

Donald R. Good and Robert M. Kerr, Jr., both of Blackfoot, for respondent.

A single sale or a brief possession, when surrounded by facts showing that the place was maintained for keeping and selling intoxicating liquor, is sufficient to sustain the charge of maintaining a statutory nuisance. John Hohenadel Brewing Co. v. U.S. 3 Cir., 295 F. 489.

As to the premises, this is a proceeding in rem against the property and ignorance of any illegal acts is not a defense. If the existence of the nuisance be established the parties and their property are subjected to the provisions of the act. State ex rel. Sweeley v. Braun, 62 Idaho 258, 110 P.2d 835; State ex rel. Eubanks v. Dick, 150 Kan. 230, 92 P.2d 92; Annotations -- 12 A.L.R. 431; People v. Peterson, 45 Cal.App. 457, 187 P. 1079; People v. Barbiere, 33 Cal.App. 770, 166 P. 812.

A certified copy of a record of the collector of internal revenue showing the issuance of a special tax stamp to defendant is admissible. State v. France, 146 Kan. 651, 72 P.2d 1001; Section 2 of Chapter 217 of 1939 Idaho Session Laws.

The Court will take judicial notice of U. S. Treasury Department Regulations and that U. S. Collector of Internal Revenue for Idaho is by law the custodian of records pertaining to that office. I.C.A. § 16-101; R. W. Hart & Co. v. Harris, 183 Okl. 588, 83 P.2d 565; McFall v. Arkoosh, 37 Idaho 243, 215 P. 978.

The Court must take judicial notice of the official position of the Prosecuting Attorney of the county and of the person occupying that office. I.C.A. § 16-101; Sections 1005 and 1101, Chapter 222, 1939 Idaho Session Laws. State v. Burtenshaw, 25 Idaho 607, 138 P. 1105.

Hyatt, Justice. Budge, C. J., and Givens, Holden and Miller, JJ. concur.

OPINION

Hyatt, Justice.

This is an appeal by James E. Burrup from a decree in a suit under Article X of Chapter 222 of the 1939 Laws to abate a liquor nuisance on certain premises, commonly known as the "Chuck Wagon," situate in the City of Blackfoot.

The pertinent facts will be discussed in connection with each assignment of error.

Appellant complains that there is neither pleading nor proof of the authority of Donald R. Good to maintain the action, urging it is essential that the pleadings show a sufficient interest or right in the complainant to sue, and the court, therefore, had no jurisdiction to hear the case. The body of the complaint contains no allegation that Donald R. Good is the Prosecuting Attorney of Bingham County, Idaho, and there was no proof to that effect. Section 1005, Article X, Chapter 222 of the 1939 Laws provides:

"Action for Maintenance. The prosecuting attorney may maintain an action of an equitable nature, as relator, in the name of the State of Idaho, to abate a liquor nuisance, perpetually to enjoin all persons from maintaining the same, and to enjoin the use of any structure or thing adjudged to be a liquor nuisance."

The caption of this action is: "State of Idaho, on relation of Donald R. Good, Prosecuting Attorney of Bingham County, Idaho, Relator, Plaintiff," etc. The opening part of the complaint reads:

"Comes now the plaintiff above named in the above entitled action, by the County of Bingham, State of Idaho, upon relation of Donald R. Good, Prosecuting Attorney of Bingham County, Idaho, and complaining of the defendants, etc."

The complaint is signed "Donald R. Good, Prosecuting Attorney, Bingham County, Idaho," and was duly verified.

We believe the contention of appellant is without merit. The State is the real party in interest. State v. Glass, 99 Kan. 159, 160 P. 1145; Pottenger v. State ex rel. Herrick, 54 Kan. 312, 38 P. 278. The opening part of, and signature to, the complaint were sufficient to advise appellant who filed the action for the State. A similar complaint was involved in State v. Glass, supra, and held sufficient because signed by the relator in his official capacity. Neither was it necessary to prove the official capacity of Donald R. Good as Prosecuting Attorney, since the District Court took judicial notice of the person holding that office (State v. Burtenshaw, 25 Idaho 607, 614, 138 P. 1105) and found accordingly.

Appellant contends that the Court erred in overruling his special demurrers to the complaint, which so far as applicable to this assignment alleges that appellant:

"* * * now is, and for a long time immediately preceding the commencement of this action has been maintaining a public nuisance in and upon the above described property and tenements, and in particular as follows, to-wit: The said James E. Burrup now is and for a long time immediately preceding the commencement of this action has been wilfully, knowingly, unlawfully, and with the knowledge and consent of the other defendants in said action, using said building, premises, together with the furniture, fixtures, vessels, bars, and equipment therein as a place in which intoxicating liquors, containing more than four per cent of alcohol by either weight or volume, are kept and harbored for the purpose of selling and giving away said liquors, and selling and disposing of the same contrary to law, and where persons are permitted to resort for the purpose of drinking intoxicating liquors, and where such intoxicating liquors are kept for the purpose of sale, and of inducing people to resort and buy and receive and purchase intoxicating liquors in violation of law."

"That the kind of liquors so kept, harbored, sold and disposed of by the said defendant, James E. Burrup, in and upon the premises aforesaid are whiskies, wines and gin, and plaintiff alleges that the said defendant holds, stores, keeps and harbors and wilfully, wrongfully, and unlawfully sells and disposes of the same upon the premises as aforesaid, in violation of the statutes in such cases made and provided, and against the peace and dignity of the State of Idaho."

The special demurrers were made upon the ground that the complaint:

"* * * is uncertain in that it does not set forth any dates or times when it is claimed this defendant kept and harbored for the purpose of selling or giving away liquors, or any persons to whom it is claimed any liquors were by this defendant sold to anyone or permitted to be sold or drank by anyone; said allegations are uncertain in that it alleges this defendant induced people to resort and buy and receive and purchase intoxicating liquors, but does not state any time or places or persons so induced so that defendant can know what is being charged in those respects against him * * *. That the allegations therein do not set forth any times or persons to whom any liquors are claimed to have been sold or disposed of by this defendant in violation of the statutes, or at what times it is claimed that this defendant kept, harbored, sold or disposed of any such whiskey, wine or gin."

The complaint alleged when the nuisance existed, the sale and keeping for sale of liquor in the premises, the kind of liquor, and that people were permitted to resort thereto to purchase and drink intoxicating liquor, all of which are ultimate facts, and sufficient to advise appellant of the claims of the State. A complaint to abate a liquor nuisance in substantially the language of the statute is not open to objection that it is uncertain and indefinite. Denapolis v....