State ex rel. McClory v. Donovan

• Decision Date: 31 May 1901
• Citation: 86 N.W. 709,10 N.D. 203
• Court: North Dakota Supreme Court

86 N.W. 709

10 N.D. 203

STATE ex rel P. J. MCCLORY v. E. I. DONOVAN

Supreme Court of North Dakota

May 31, 1901

Appeal from District Court, Cavalier County; Fisk, J.

Action by the state, on the relation of P. J. McClory, as assistant attorney general, against E. I. Donovan. Judgment dismissing the action, and both parties appeal.

Reversed.

Judgment reversed, and judgment entered in favor of the plaintiff for the relief demanded in the complaint.

Bosard & Bosard, for appellants.

An action to abate a nuisance will lie against a registered pharmacist holding a permit to sell intoxicating liquors. State v. McGruer, 84 N.W. 363; State v Webber, 39 N.W. 286; State v. Mullenhoff, 37 N.W. 329; State v. Davis, 24 P. 73; Holtenford v. State, 89 Ind. 282; State v. Blair, 34 N.W 432; State v. Thompson, 37 N.W. 104; State v Oeder, 45 N.W. 543. The seller is bound to know at his peril whether the person to whom he sells liquor is in the prohibited class, good faith being no defense. Commonwealth v. Perry, 148 Mass. 160, 19 N.E. 212; State v. Thompson, 37 N.W. 104; Hall v. Cown, 79 N.W. 274; McCoy v. Clark, 81 N.W. 159; Fielding v. LaGrange, 73 N.W. 1039; State v. Ward, 36 N.W. 726; Dudley v. Sustbine, 49 Ia. 650; Jamieson v. Burton, 43 Ia. 282.

Templeton & Rex, for respondent.

Special provisions in a statute made strictly applicable to a certain class of persons is exclusive and limits general provisions of the statute which might include such class in the absence of such special provisions. Stokes v. People, 114 Ill. 320; State v. Cornell, 74 N.W. 432; Felt v. Felt, 19 Wis. 208; Richardson County v. Miles, 16 N.W. 150; Crane v. Reider, 22 Mich. 322; State v. Piper, 41 Mo.App. 160; State v. McArmally, 66 Mo.App. 392; State v. Goff, 70 Mo.App. 295; State v. Polland, 72 Mo.App. 230; State v. Wittey, 74 Mo.App. 550. If the remedy prescribed by § 7605, Rev. Codes, applies against druggists holding permits, then this section is void as in conflict with the fourteenth amendment to the Federal Constitution. Mugler v. Kansas, 123 U.S. 623, 31 L.Ed. 205; State v. Beswick, 13 R. I. 211; Board of Commissioners v. Merchant, 103 N.Y. 143. If § 7605 is applicable to druggists holding permits it conflicts with § § 13 and 18 of the State Constitution, providing that no person shall be compelled to be a witness against himself, or be deprived of life, liberty or property without due process of law, and prohibiting unreasonable searches and seizures. Councilman v. Hitchock, 142 U.S. 547, 35 L.Ed. 1110; Ex parte Cohen, 38 P. 364; People v. Forbes, 143 N.Y. 219; Boyd v. United States, 116 U.S. 616, 29 L.Ed. 746. Under § 7616, Rev. Codes, knowledge of the habits of the purchaser can be set up as a defense by a druggist. Notice is necessary and can be given by the person designated, and the purchaser must in fact be in the habit of becoming intoxicated. Tate v. Donovan, 143 Mass. 590; Kennedy v. Saunders, 142 Mass. 9; Engle v. State, 97 Ind. 122; Geraghty v. State, 110 Ind. 103; State v. Smith, 122 Ind. 178. It was necessary for the plaintiff to set forth in his complaint the facts constituting the violation of law. State v. Martin, 18 S.W. 1005. Plaintiff having failed to prove the sale alleged, his case must fail. State v. Neil, 45 P. 623; State v. Reynolds, 47 P. 573; State v. Watson, 50 P. 959; State v. Knoby, 51 P. 53. The evidence does not establish that at the time of the sales the purchasers were in the habit of becoming intoxicated. Zeizer v. State, 47 Ind. 129; Dolan v. State, 122 Ind. 141, 17 A. & E. Enc. L. (2 Ed.) 343; Knickerbocker v. Froley, 105 U.S. 350, 26 L.Ed. 1053; Mahone v. Mahone, 19 Cal. 627.

OPINION

YOUNG, J.

This action was instituted in the District Court of Cavalier county by the state, upon relation of P. J. McClory, assistant attorney general, to abate a liquor nuisance kept and maintained by the defendant in a building situated upon lot 3, in block 22, in the city of Langdon, in said county, in violation of § 7605, Rev. Codes, which is a part of Chap. 63 of the Penal Code, prohibiting unlawful dealing in intoxicating liquors. Said section, so far as pertinent, reads as follows: "All places where intoxicating liquors are sold, bartered or given away, in violation of any of the provisions of this chapter, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter or delivery in violation of this chapter, are hereby declared to be common nuisances; and if the existence of such nuisance is established either in a criminal or equitable action, upon the judgment of a court or judge having jurisdiction, finding such place to be a nuisance, the sheriff, his deputy or under sheriff, or any constable of the proper county or marshall of any city where the same is located, shall be directed to shut up and abate such place," etc. The complaint, in its language, is identical with that set out in the opinion in State v. McGruer, 9 N.D. 566, 84 N.W. 363, save as to the names of the parties and description of the property, and reference is here made to such complaint in lieu of an extended statement. It is sufficient to state that the complaint avers all of the statutory grounds which render such places nuisances under § 7605, supra. It also alleges that the defendant owns and operates the place in question, and the further fact that he holds a druggist's permit, issued by the county court of said county; but alleges that his acts in and about the sales of intoxicating liquors have been and are in violation of his permit, and in violation of law. The answer admits the ownership and occupancy of the building, but denies all unlawful acts. This case was tried and determined at the same time State v. McGruer, supra, was tried and determined, and by the same judge. Here, as in the McGruer case, the findings of fact made and filed by the trial court judge sustain the allegations of the complaint, and here, as in that case, the court found as a conclusion of law that the action "should be dismissed, for the reason that a civil action cannot be maintained against druggists holding permits under § 7605 of the Rev. Codes of this state." Judgment was rendered and entered dismissing the action. Both parties have perfected appeals to this court. The state appeals from the judgment, and asks that the same be reversed, and that the District Court be directed to enter judgment in accordance with the prayer of the complaint, enjoining and abating said nuisance, upon the ground that the findings of the trial court, which are embraced in the judgment roll, show that the place complained of is a common nuisance, and that plaintiff is legally entitled to such relief. The defendant, on the other hand, challenges the findings of fact in his appeal, and, for the purpose of securing a review of the same, has caused a statement of the case to be settled containing all of the evidence offered, and a demand for a review of the entire case in this court. The questions involved in both appeals are largely similar. They will, therefore, be considered together.

At the outset the point is made by defendant's counsel that the judgment of which the state complains cannot be interfered with on this appeal, for the reason, as he contends, that the proper remedy to correct the same, under a former decision of this court, is by a motion in the trial court, and not by appeal to this court. This contention cannot be sustained. It is true, a remedy is offered by a motion addressed to the trial court in cases where judgment has been entered irregularly, and not in accordance with established procedure, and such remedy is better adapted to furnish speedy relief than the slow process of appeal. 1 Black, Judgm. § 326; Garr, Scott & Co. v. Spaulding, 2 N.D. 414, 51 N.W. 867. The remedy by motion, however, is available only in case of irregular judgments, and cannot be resorted to as a means of enabling the trial court to review, revise, or correct errors of law into which it may have fallen. "That a judgment is erroneous as a matter of law is ground for appeal, writ of error, or certiorari, according to the case, but is no ground for setting aside the judgment on motion." 1 Black, Judgm. § 329, and cases cited. Counsel rely upon Prondzinski v. Garbutt, 9 N.D. 239, 83 N.W. 23. That was a case of an irregular entry of judgment, the irregularity consisting in an entire absence of findings, or of a waiver of the same. The remedy by motion was, therefore, proper. In the case at bar it is not claimed that the judgment is irregular. The sole contention of the state is that the conclusion of law of the trial court is erroneous. Such errors, as we have seen, are not reviewable upon a motion addressed to the trial court.

The question is next presented whether the present action is maintainable against a druggist holding a permit. This question was fully considered by this court in State v. McGruer, supra, and we there held that § 7605, Rev. Codes, above quoted, applies to places kept by druggists holding permits. The views we expressed in that case remain unchanged. So far as we are able to learn, no court of last resort has held otherwise under the same or similar statutes. The reasoning of all authorities available support our conclusions. In State v. Davis 44 Kan. 60, 24 P. 73, it was held, under a similar statute, that a pharmacist who sells in violation of his permit may be enjoined for maintaining a nuisance. In the course of its opinion the court used this language, which is directly applicable to the contention made by defendant's counsel in the present case: "It is said that his place of business may not be declared a nuisance, and shut up and abated, because he has a...