State ex rel. Patterson v. Longpre & Cameron

• Citation: 35 Wyo. 482,251 P. 468
• Decision Date: 07 December 1926
• Docket Number: 1280
• Parties: STATE EX REL. PATTERSON v. LONGPRE & CAMERON [*]
• Court: United States State Supreme Court of Wyoming

251 P. 468

35 Wyo. 482

STATE EX REL. PATTERSON v. LONGPRE & CAMERON ^[*]

No. 1280

Supreme Court of Wyoming

December 7, 1926

Appeal from District Court, Albany County; V. J. TIDBALL, Judge.

Action to abate liquor nuisance by the State, on the relation of George W. Patterson, against Longpre & Cameron, a copartnership comprised of George Longpre and another, and others. From a judgment abating the liquor nuisance, named defendants and certain other defendants appeal.

Affirmed and modified.

S. C Downey, for appellants.

The Legislature cannot declare a thing a nuisance which is not so in fact; Rossman v. Galverton, 26 A. L. R. 1211. Two Legislative Acts are involved Chapters 87 and 117 respectively, Laws 1921; the court below held that they were pari materia; 25 R. C. L. 931. The Acts are essentially different in purpose and intent; Chapter 87, so far as it applies to the liquor traffic, was repealed by Chapter 117, Laws 1921, which supercedes the former Act; Attorney General v. Commr's., 117 Mich. 477; White v Jones, (Ala.) 93 So. 733; Kramer v. Beebe (Ind.) 115 N.E. 83; Miller v. School Dist., (Ore.) 211 P. 174; Alaska Co. v. Territory, 236 F. 62; Rhodes v. J. B. B. Coal., (W. Va.) 90 S.E. 796; Murdock v. Memphis, 20 Wall. 617. It was clearly the intention of the Legislature to make a new law; U.S. v. Tynen, 11 Wall. 88; Pingree v. Snell, 42 Me. 52. An interesting case is Tracy v. Tuffly, 134 U.S. 206, dealing with two statutes in Texas and also Bank v. U.S., 107 U.S. 445. The case of State v. Marxhausen, 171 N.W. 557, is "on all fours" with the case at bar; a new statute covering the same ground, supercedes former statutes without express words of repeal; Porter v. Edwards, (Mich.) 72 N.W. 614; Graham v. Muskegon, (Mich.) 74 N.W. 729; Farley v. U.S. 269 F. 721; Waker v. Commonwealth, (Ky.) 232 S.W. 617; City v. Ry. Co., 10 A. L. R. 910; Sutherland 191, 207-209; State v. Smith, 44 Tex. 443. The court erred in denying defendants' motions to require a more definite and specific statement in plaintiff's petition; U.S. v. Butler, 278 F. 677; Gross v. U.S., 280 F. 683; U.S. v. Dowling, 278 F. 630. The principle of the abatement law is not new, since it provides the old common law remedy of abatement of nuisances; U.S. v. Cohen, 268 F. 420. There must be a nuisance in fact; Mugler v. Kansas, 123 U.S. 623; U.S. v. Elbert, 278 F. 659; Stockwell v. State, 110 Texas 550; Austin v. Murray, 16 Pick (Mass.) 121; People v. Goddard, 191 P. 1012. Knowledge of the owner is necessary to justify injunction; U.S. v. Butler, supra; State v. Emerson, 155 P. 579; Nies v. Anderson, (Ia.) 161 N.W. 316; Gregg v. People, (Colo.) 176 P. 483; 12 A. L. R. 436. Assuming that Chapter 87 was repealed, the only material evidence is that of Easley; U.S. v. Cohen, supra; People v. Garwood, 191 P. 1012; State v. Andrews, 176 N.W. 637; McMillan v. Metcalf, 174 N.W. 481; State v. Salley, 215 S.W. 241. Evidence of reputation was immaterial under Chapter 117, which repealed Chapter 87, Laws 1921.

George W. Patterson, for respondent.

The contention that Chapter 87, Laws 1921, was repealed by Chapter 117, Laws 1921, is unsupported by rules of statutory construction; Chapter 117 merely repeals Chapter 209 C. S., and other acts inconsistent therewith; there is a strong presumption against implied repeals in the case of contemporaneous statutes; 25 R. C. L. 167, 168; statutes pari materia are usually construed as one act; 25 R. C. L. 180; In re Moore, 4 Wyo. 98. The fact that the later law is different is not sufficient to repeal; 25 R. C. L. 170. If the later act is merely cumulative, the earlier is not repealed; 25 R. C. L. 286; unless they are in hopeless conflict; 25 R. C. L. 286, 287; State v. Carey, 26 Wyo. 300. Abatement laws are constitutional; 5 A. L. R. 1449, and note; 22 A. L. R. 535, and note. Notice is immaterial; 12 A. L. R. 431. The injunction was proper.

BLUME, Justice. POTTER, C. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This is an action brought by the State of Wyoming on relation of George W. Patterson, County and Prosecuting Attorney of Albany County, Wyoming, against Longpre and Cameron, a co-partnership, and against the members of said co-partnership individually, and against Anna E. Tegner, owner of the premises hereinafter mentioned, for the purpose of abating a liquor-nuisance on the premises known as the Antlers Bar in Laramie, Wyoming. After trial of the case, the court found the existence of a nuisance and rendered judgment on June 6, 1924, abating it, but authorizing the owner of said premises to resume possession and occupancy thereof upon filing a bond in the sum of $ 500 conditioned as required by law. From the judgment so entered the said partnership and the members thereof individually have prosecuted an appeal to this court--the owner of said premises, however, not joining in such appeal. A bond staying execution was given in the sum of $ 500.

1. A motion was filed in the lower court to have the petition made more definite in certain respects. A demurrer also was filed, on the ground that the petition does not state facts sufficient to constitute a cause of action. The record fails to disclose any ruling on either the motion or demurrer and we cannot, accordingly, consider them, although we can still consider the question as to whether or not the facts alleged in the petition constitute a cause of action against the appellants. But it is merely claimed that the petition is fatally defective because it fails to allege that Anna E. Tegner, the owner of said premises, had any knowledge of the existence of the nuisance on the premises above mentioned. She has not appealed, and the appellants herein are not entitled to urge any errors which affect only their co-party who is not before the appellate court complaining thereof. 4 C. J. 698. It is not claimed that the petition does not state sufficient facts so as to allege a nuisance, kept by appellants, but counsel rather concedes the contrary. And no question, accordingly, as to the sufficiency of the petition remains for our consideration. We might say, however, that where the petition states facts sufficient to allege a liquor nuisance, as is substantially admitted to be true in this case, it would be immaterial whether the prosecuting attorney of Albany County believed that he was bringing the action under chapter 87 or under chapter 117, Session Laws of Wyoming, 1921. Tucker v. State of Wyoming, ex rel. Snow, 35 Wyo. 430, 251 P. 460, decided this day.

2. Testimony was admitted in the case to the effect that the general reputation of the Antlers Bar, aforesaid, was that of a place where intoxicating liquors might be procured, and it is argued that such testimony was improperly admitted. The point has become increasingly important, and perhaps pressing, since the adoption of the Eighteenth Amendment to the Constitution of the United States and the passage of the National Volstead Act and similar laws in the various states. Section 3 of chapter 87, Sessions Laws of 1921--that chapter relating, among other things, to the abatement of nuisances caused by prostitution, gambling and storing of liquor--provides:

"The action when brought shall be triable at the first term of court, after due and timely service of the notice has been given, and in such action evidence of the general reputation of the place shall be admissible for the purpose of proving the existence of said nuisance."

We have held, however, in the case of Tucker v. State ex rel. Snow etc., decided this day, that the provisions of chapter 87, aforesaid, were repealed by chapter 117, supra, in so far as they relate to liquor nuisances. And the provisions of section 3, chapter 87, above quoted, are so closely interwoven with the other provisions of that chapter that they also must be held to have been repealed in so far as they may relate to such liquor nuisances. Chapter 117, supra, which was copied closely after the National Volstead Act, does not provide for the introduction of testimony relating to such reputation, and we must, accordingly, determine as to whether or not such testimony is admissible without any statutory provisions on that subject. The courts of Oklahoma have uniformly held that it is. Titsworth v. State, 2 Okla. Crim. 268, 101 P. 288; Ostendorf v. State, 8 Okla. Crim. 360, 128 P. 143; Wilkerson v. State, 9 Okla. Crim. 662, 132 P. 1120; Caffee v. State, 11 Okla. Crim. 263, 145 P. 499, Cameron v. State, 13 Okla. Crim. 692, 167 P. 339. The ruling of the Montana Supreme Court is to the same effect; State v. Mercier, 70 Mont. 333, 225 P. 802, the court saying upon that point:

"Error is predicated upon the ruling of the trial court, permitting the State to introduce evidence that the general reputation of the boarding house was that of a place where intoxicating liquors were kept and sold illegally. The overwhelming weight of authority sustains the ruling."

And in Ryan v. United States, (C. C. A.) 285 F. 734, the court, in making the same ruling, simply said:

"The defendants were all charged with maintaining a nuisance, and there was no error in permitting the government to prove that the reputation of the premises maintained by them was bad."

See also Chamberlain, Modern Law of Evidence, sec. 745; Blakemore on Prohibition, page 248. Most, if not all, of the other cases holding such testimony admissible have been decided under a statute expressly authorizing it. The Oklahoma cases and the Montana case above mentioned apparently admit such testimony upon the same theory upon which many courts have admitted it for the purpose of proving a place to be one of ill fame, or a disorderly house. Other authorities, on the contrary, hold such testimony inadmissible to establish the existence...