State ex rel. Rippey v. Gruener
| Decision Date | 13 March 1923 |
| Docket Number | No. 35110.,35110. |
| Citation | 195 Iowa 575,192 N.W. 426 |
| Parties | STATE EX REL. RIPPEY, COUNTY ATTY., v. GRUENER ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; Lester L. Thompson, Judge.
Action in equity wherein it is alleged that Gruener Bros., and the members of the firm, one of whom holds a permit from the district court, dated June 15, 1920, to sell intoxicating liquors, had sold such liquors contrary to law, and that therefore said defendants are maintaining a nuisance. R. D. Bennett is now deceased. The trial court found for defendants, and dismissed the petition. Plaintiff appeals. Reversed.A. G. Rippey and Vernon Seeburger, both of Des Moines, for appellant.
C. C. Putnam, of Des Moines, for appellees.
E. R. Bennett, an owner of an undivided interest in the real estate, appeared and filed answer, showing that Gruener Bros. were operating a drug store under a lease; that he had no notice or knowledge of any illegal sale of intoxicating liquors upon the premises, or any fact that would put him upon inquiry.
The specifications wherein it is claimed that the permit holder violated the law may be stated in a general way under these headings: (1) That in a considerable number of cases the requests of parties to purchase liquor did not give the street numbers properly, or that they were not given at all, and this in cities where the streets and houses were numbered. (2) That in other instances purchasers of liquor were not properly identified. (3) Certain requests do not bear the fac simile signature of the county auditor of Polk county, then incumbent in office, but bear the fac simile of a former county auditor. (4) That defendants violated section 2394, Code Supp. 1913, in refusing to permit John B. Hammond, a deputy sheriff of Polk county, to inspect the liquor records upon demand. It was further claimed that no purchase book was kept, and that a quart or two of gin seized June 10th was not covered in the report to the auditor. The last item was explained by the defendants by showing that at some time a person had left the gin with defendants, to be sent to such person upon request, but that the request had never been made. This item, and the matter of failure to keep a purchase book, seem to have been explained satisfactorily to the state, and those two matters are not now argued or relied upon.
1. The requests identified and introduced in evidence run from a period in July, 1920, to April, 1921. Something over 50 of these are complained of under some of the foregoing specifications, perhaps the larger number being the failure to give the street number of the purchaser. The requests are on printed forms. As to the requests just referred to, wherein the street and number are not given, is a blank space for filling in the street and number. It will be impracticable, within the proper limits of an opinion, to refer to all of these separately. As illustrative, one is a request for whisky by a person from Mason City, stating that the applicant resides in Mason City, “At No. General Delivery Street.” The words “General Delivery” are written in with pen and ink. Another is a request for whisky by a person from Eagle Grove, “At No. General Delivery P. O. Box 373, Street,” request No. 149757. Another to the same person under another date, “At No. P. O. Box 372 Street,” Eagle Grove, No. 149518. Another by the same person at another date, “At No. General Delivery Street,” Eagle Grove, No. 149947. There are quite a number of different requests wherein the address is given in the manner indicated. Another request by a person from Eagle Grove, “At No. Lincoln St. Street.” Another request from a resident of Waterloo, who was temporarily in Des Moines, gave his address as, “Des Moines Township, Savery Hotel, Room 522.” Another request is similar, except that it gives the number of the room at the Ft. Des Moines Hotel. Another, “At No. 803 Mulberry, Majestic Hotel Street, Des Moines.” Another, “At No. Majestic Hotel, 80 Mulberry Street, Room 20, Des Moines.” Another, There are a number of others, but these are sufficient for the purpose of illustration.
[1] Section 2394, Code Supp. 1913, provides, among other things, that--
The statute is mandatory. Doubtless the Legislature had a purpose in requiring that the street and number should be given. The explanation of defendants in regard to the foregoing is that the addresses were those given by the parties making the request, and that defendants acted in good faith. The statute does not contain such exceptions. They testify they knew the law required that the street and number should be given. The state went so far as to show that in Mason City, Eagle Grove, and other towns, where parties lived who made requests, the streets are named, and that the houses are numbered. It was a fact, provable by defendants, as to whether in these several instances the streets and houses where applicants for liquor lived were not numbered, and this is so, even though in some cases, as defendants testify, the applicants stated that the houses where they resided were not numbered.
[2] A permit holder has the burden of proving that the sales made by him were in compliance with the law. State v. Cloughly, 73 Iowa, 626, 35 N. W. 652;State v. Snyder, 185 Iowa, 728, 733, 171 N. W. 8, and cases.
The finding of the trial court at this point was that defendants requested of applicants the names and numbers of their streets and addresses, and were told that they had no numbered or named streets, and the permit holder had good reason to believe the statements of the applicants to be true; that the evidence shows defendants are men of high character, integrity, careful in the conduct of their business, and had acted in good faith. It may be conceded that the record shows the character of defendants to be as stated. Mr. Holsapel, superintendent of the Iowa Anti-Saloon League, testifies in behalf of the defendants that he sent people to try and buy liquor of defendants, and that they were unable to do so, and from that circumstance states his opinion, in substance, that they were not violating the law in that way. He says, however, that he at no time checked up the requests and other records required to be kept by law. Other witnesses testify as to the standing of defendants. To put the best face on it, possible, it must be said that the defendants were at least careless in the matters before mentioned, and some others. There are many special requirements in the statute, one as binding as the others. If it is permissible for one, because acting in good faith, rather than complying with the specific terms of the statute, to not require the applicant to give the street and number, and another permit holder fail to require that the requests...
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