State ex rel. Hanrahan v. Miller

• Decision Date: 05 May 1959
• Docket Number: No. 49641,49641
• Citation: 250 Iowa 1358,96 N.W.2d 474
• Parties: STATE of Iowa ex rel. Ray HANRAHAN, County Attorney of Polk County, Iowa, Plaintiff-Appellee, v. Robert Joseph MILLER, Cottonwood Club, an Iowa Corporation, Defendant-Appellant. *
• Court: Iowa Supreme Court

Page 474

96 N.W.2d 474

250 Iowa 1358

STATE of Iowa ex rel. Ray HANRAHAN, County Attorney of Polk County, Iowa, Plaintiff-Appellee, v. Robert Joseph MILLER, Cottonwood Club, an Iowa Corporation, Defendant-Appellant. ^*

No. 49641.

Supreme Court of Iowa.

May 5, 1959.

Defendant's Petition for Rehearing Denied July 24, 1959.

State's Petition for Rehearing Granted July 24, 1959.

Don J. Wilson and Walter F. Maley, West Des Moines, for appellant.

Ray Hanrahan, Polk County Atty., and J. Peter Denato, Asst. Polk County Atty., Des Moines, for appellee.

GARRETT, Justice.

This is an action in equity brought by the state of Iowa against the defendants-appellants seeking the abatement of an alleged liquor nuisance, a permanent injunction, a mulct tax against the premises and other relief. The court granted the relief prayed for.

Prior to September 12, 1956 the defendant Robert Joseph Miller operated a key club known as The Cottonwood Club, an Iowa corporation on premises owned by him at the southwest corner of University Ave. and 73rd St. in Polk County, Iowa. On that date sheriff's officers seized a quantity of intoxicating liquor in bottles bearing the Iowa Liquor Control Commission seals and some in bottles not so labeled. Miller was soon thereafter indicated, charged with violating Section 123.3 of the 1954 Code, tried and acquitted. On the trial of this case, he testified 'I * * * am the catering manager of the Cottonwood Club. I have been manager there since March 7, 1955 and prior to that I occupied the premises as a tenant since January 3, 1955.'

James A. Minard, a salesman, testified regarding the club, 'As I remember, we had a couple of rounds of highballs at fifty cents a highball. In my opinion, the highball I had that night contained whiskey. * * * Mr. Miller was both behind and in front of the bar.'

Janet Mary Christopher testified: 'We bought our drinks from the bartender, Peck Henry. I had two or three drinks, water mixed with whiskey. We were having highballs. I believe we paid fifty cents a drink for them.' She said her husband was knocked down in a fight in the club.

Arne Christopher said he did not have a membership in the club. 'While there, I received intoxicants from Mr. Henry, the bartender, in the form of highballs, whiskey and sparkling water or seltzer.'

George G. West, one time assistant attorney general, testified, 'I have formed an opinion of the community's attitude on this place and my opinion is that the community attitude or opinion towards the Cottonwood Club is that it is a nuisance. * * * that it is a liquor nuisance.'

George A. Lundberg stated he was mayor of Clive and was a justice of the peace for six years prior to that, that the Cottonwood Club is located in Clive, and that 'From the reputation of the community, the complaints, the constant bedlam that is brought to my attention, it has for quite some time been quite a problem to the community. * * * We feel that the Cottonwood Club, by that, I mean the people around it and from different areas, feel that is one of the wide openest liquor drinking establishments there is in the state of Iowa.'

There was other testimony as to the sale and dispensation of intoxicating liquors on the premises with the knowledge and consent of Miller and testimony of sheriff's deputies as to the reputation of the place as being a liquor nuisance, as to complaints they had received and what they had observed on the premises. One deputy sheriff testified he bought liquor there on two occasions, Miller serving him once.

All sales of intoxicants were denied and there were witnesses from the neighborhood who testified they had heard nothing unfavorable about the club. Defendant Miller testified, '* * * I can remember altercations, disagreements, but not too many fights; there was nobody hurt in these fights.'

I. Appellants state many propositions upon which they rely for reversal. The first one urged 'That the Polk County District Court's decree ordering the destruction of liquor bearing the seal of the Iowa Liquor Control Commission which was seized without a search warrant, was illegal and without jurisdiction.' Their second proposition is that the court erred in impounding the liquor as evidence in a civil trial.

For a determination of the questions raised we must turn first to Chapter 128, Code 1954, I.C.A., and particularly to section 128.19 which reads as follows: 'Abatement. If the existence of the nuisance be established in a civil or criminal action, an order of abatement shall be entered as a part of the judgment in the case; which order shall direct the destruction of the liquor, * * *'.

It is our opinion there was sufficient competent evidence in the record to justify the court in holding that the defendants Robert Joseph Miller and the Cottonwood Club, a corporation, were maintaining a liquor nuisance at the location and on the premises described in plaintiff's petition and that such nuisance should be enjoined. It is our further opinion that, the existence of a nuisance having been established, it was mandatory under this statute that an order of abatement be entered as a part of the judgment in the case.

The section provides that the order of abatement shall direct the destruction of the liquor, the removal from the building or place of all fixtures, furniture, vessels, etc. and for the sale of the chattels. Acting under the mandate of section 128.19 the trial court ordered the nuisance abated 'by the destruction of all liquors heretofore seized on said premises * * *.' The appellants contend the district court had a duty at the conclusion of the criminal trial to return the liquor seized without a search warrant, the defendant having been acquitted, and urge that the acquittal of Miller was an adjudication that the liquor was lawfully kept, its status fixed, and that therefore it was not subject to condemnation. It is undisputed Miller was indicted in October 1956 on the charge of selling, or offering, keeping or possessing for sale alcoholic liquor in violation of section 123.3 of the 1954 Code of Iowa, I.C.A. and that he was acquitted by a jury in the January 1957 term of court. Following Miller's acquittal, the plaintiff, defendants resisting, procured an order of court that the liquor and records seized at the Cottonwood Club on September 12, 1956 be held and preserved for use as evidence in this case.

Section 123.3 provides: 'General prohibition. It shall be unlawful to manufacture for sale, sell, offer or keep for sale, possess and/or transport * * * alcoholic liquor * * *'. Plaintiff's petition alleges Miller was operating and maintaining a nuisance 'by selling, dispensing, having possession of, trafficing in and keeping for sale and with intent to sell and dispense intoxicating liquor in violation of law' and particularly section 123.3 of the 1954 Code of Iowa, I.C.A.

The question we are called upon at this point to answer is, was Miller's acquittal an adjudication that the liquors taken from him were lawfully kept and therefore not subject to condemnation? The liquor ordered condemned in this case was the identical liquor taken from Miller at the Cottonwood Club and used as evidence against him in the criminal trial which resulted in his acquittal. The verdict of 'not guilty' was an adjudication that Robert Joseph Miller did not sell, offer or keep for sale, possess and/or transport the alcoholic liquor which plaintiff now seeks to have condemned. Are we justified in saying, in this case where it is sought to have the liquor condemned, that the verdict of the jury means nothing? The state of Iowa was the plaintiff in the criminal case and the verdict and adjudication went against it. It did not appeal. The law with reference to that liquor was adjudicated--the defendant was held innocent of any violation of section 123.3. Now the same plaintiff seeks to have the same issue relitigated. We believe there was sufficient competent evidence to justify the court in declaring the premises a nuisance without regard to the liquor which the court has ordered condemned. The liquor was seized on September 12, 1956. All of the evidence in both cases referred to the same period of time preceding that date. We cannot say the verdict of the jury was not a determination of everything it purports to determine. The acts alleged in the indictment, if the defendant Miller were guilty of them, would have constituted a nuisance. The jury held he was not guilty. In view of that verdict, we hold the court was in error in ordering the liquor condemned. To that extent the verdict and judgment of the trial court must be reversed.

The liquor and records here involved were taken and held without a search warrant or other legal authority. The Bill of Rights, Article I, Section 8, Constitution of Iowa, I.C.A. provides: 'Personal security--searches and seizures. Sec. 8. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches shall not be violated; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the persons and things to be seized.' No arrest of any defendant was made. Most of the liquor, but not all, carried Iowa Liquor Control Commission seals showing it had been legally purchased of the state of Iowa. It was not contraband, except, perhaps for a few bottles not bearing the Iowa commission seals. Section 751.23 is as follows: 'Property restored. If it appears that the property taken is not the same as that described in the warrant, or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the magistrate shall cause it to be restored to the person from whom it was taken.' This section must be held to mean that if there is no warrant properly describing the property seized or if there is not probable cause for believing the...