State v. Baltimore

• Decision Date: 01 June 1916
• Citation: 78 W.Va. 526
• Court: West Virginia Supreme Court
• Parties: State v. Baltimore and Ohio Railroad Co.

78 W.Va. 526

State

v.Baltimore and Ohio Railroad Co.

Supreme Court of Appeals of West Virginia.

Submitted May 3, 1916.

Decided June 1, 1916.

1. Intoxicating Liquors Offenses Transportation of Liquors.

Chapter 13, Acts 1913, as amended by chapter 7, Acts 1915, ch. 32A, Code, Barnes' Handy Edition, does not expressly or impliedly inhibit common carriers from transportation of passengers carrying with them, in their own personal custody, care and control, packages of intoxicating liquors, labeled in accordance with the requirements of sec. 31 of said chapter. (p. 532).

2. Same.

Section 7 of said chapter impliedly authorizes such transportation, by the use of terms from which legislative intent to do so is plainly inferable; and sec. 31 thereof, expressly recognizing and excepting the common law right of a citizen to bring intoxicating liquors into the state, for his personal use, and prescribing the manner of doing so, without denying to him the use of any of the means of travel ordinarily available and employed, at the date of the passage of the act, impliedly authorizes the use of such methods of travel in the carriage of such liquors. (p. 532).

3. Statutes Construction Grant of Right.

An express statutory grant of a right, power or privilege, or exception of a previously existing one, in the absence of any prescription of the method of exercise or enjoyment thereof, impliedly carries with it right to make use of all the ordinary methods and means of such exercise or enjoyment. (p. 534).

4. Intoxicating Liquors Abatement of Nuisance Injunction.

A bill praying an injunction against transportation of persons so carrying intoxicating liquors, by a common carrier, unless such earlier, through its agents, servants and employses, has first ascertained by due diligence and caution and in good faith, that such liquors arc not intended for use or disposition by such persons, contrary to law, and not charging the rendition of aid and assistance to any particular person in his violations of the prohibition laws, by the carrier so proceeded against, raises no question as to right in the state to enjoin such transportation as to particular individuals. (p. 538).

5. Nuisance Public Nuisance Abatement Injunction.

In the absence of a statute conferring it, equity has no jurisdiction to abate a public nuisance, either civil or criminal, at the instance of an individual or the state, not affecting or injuring the enjoyment of property or other personal rights. Injunction is not a remedy for the enforcement of criminal laws generally. (p. 536).

6. Intoxicating Liquors Abatement of Nuisance Injunction.

Under the authority to abate nuisances, conferred by secs. 14 and 17, ch. 32A, Barnes' Code, the injunction goes primarily against places in which the prohibition laws are habitually violated and incidentally against persons who maintain such places. Such authority does not extend to violations of the prohibition laws generally or in ways other than those designated in said sections. Neither said sections nor any other law confers upon courts of equity, general power to govern the state by injunction, in so far as its laws pertain to the subject of intoxicating liquors. (p. 537).

7. Nuisance Abatement Injunction.

In those instances in which injunction lies to prevent conduct amounting to a nuisance abatable by such remedy, it is limited to unlawful acts and is not available as a means of prevention of lawful acts. Only so much of such conduct as is unlawful can be restrained. (p. 539).

(Mason, Judge, absent.)

Appeal from Circuit Court, Mineral County.

Bill in equity by the State against the Baltimore & Ohio Railroad Company. Prom a decree for plaintiff, defendant appeals.

Remanded.

A. Hunter Boyd, Frank C. Reynolds and Conley & Johnson, for appellant.

Fred 0. Blue and Jno. T. Simms, for the State.

POFFENBARGER, JUDGE:

The question presented by the record in this cause is whether the State may restrain common carriers from allowing passengers to carry suit cases, trunks or other containers containing intoxicating liquors as unchecked personal baggage, on the ground that the allowance of that privilege to passengers enlarges the opportunity for violation of the constitutional and statutory laws prohibiting the manufacture, sale and gifts of such liquors.

It arises upon a final decree, reading in part as follows: "It is therefore adjudged, ordered and decreed that the respondent, The Baltimore & Ohio Railroad Company, be and it is hereby enjoined and restrained from permitting the carriage or transportation as baggage in and on its passenger trains running into or operating within the State of West Virginia, and particularly within said County of Mineral, or elsewhere within the jurisdiction of this Court, any suit case, trunk or other container labeled as containing liquor. It is further adjudged, ordered and decreed that in the event such suit case, trunk or other container labeled as containing liquor is found on a passenger train in West Virginia, the same shall be removed at the next stopping point for such train where there is a railroad agent in said State, and unless removed by the person claiming the same, such suit case, trunk or other container shall be placed in the hands of the station agent at such station and notice given to the Commissioner of Prohibition at Charleston, West Virginia, or to any of his officers or agents." This decree was entered after the overruling of a demurrer to the bill and two motions to dissolve the preliminary injunction, one made before, and the other after, the filing of an answer. As to issues of fact raised by the answer, no proof was taken.

The bill sets forth the prohibition policy of the state, made manifest by its constitution and statutes, and the statutory limitation upon the right to bring liquors into the state for personal use. The allegation recognizing this exception and purporting to give the limitation thereon reads: "And plaintiff further represents that her public policy, other than as to certain liquors for druggists for the special purposes and under regulations provided by law, as expressed by her laws, only permits the bringing of intoxicating liquors into her jurisdiction by the person who personally procures the same from the outside dealer and personally carries the same into plaintiff state, and only then when such intoxicating liquors are intended for the personal, lawful use of the person who has so purchased and is so carrying them into plaintiff state for his personal, lawful use, and not for the purpose of keeping, storing, selling or having for sale such intoxicating liquors; and, then, subject to the requirement that when the aggregate of such intoxicating liquors, so carried into plaintiff state by such person, for his lawful personal use, shall exceed one-half gallon in quantity that there shall be plainly printed or written on the side or top of the container of such intoxicating liquors, in large display letters, in the English language, the contents of the container or containers, and the quantity and kind of intoxicating liquors contained therein."

It avers knowledge on the part of the defendant, of the fact that many persons transport, and have been transporting, large quantities of such liquors into the state, by means of its trains, under the guise of personal baggage; that a large part, if not the largest part, of the liquors so brought into the state, is and has been brought in for the purpose of being here unlawfully kept, stored and sold, and the practice is continued or permitted notwithstanding notice of the abuse or perversion of the privilege of such carriage has been brought to the attention of the defendant and protests made against allowance thereof, by the prosecuting attorneys and other officers charged with the duty of enforcement of the prohibition laws; that the defendant has not heeded protests of the owners and operators of coal, lumber and other industries against the permission of this privilege under which liquors are so brought into cities and towns, including mining and lumber towns, and sold and disposed of contrary to law; that the officers charged with enforcement of the prohibition laws have unavailingly brought to the attention of the defendant, such transportation and unlawfulness thereof, requested establishment of rules denning and limiting the quantity of such liquors passengers may carry as personal baggage, and charged discrimination in favor of persons carrying liquors in its passenger coaches and against passengers carrying other baggage and allowance of carriage of liquors as personal baggage in greater volume and weight than is permitted as to other articles so carried and permission of the same passengers, at extremely short intervals, to carry such packages in its coaches; that defendant, despite the information so given, continues the privilege so accorded to its passengers and has formulated no rules respecting the carriage of intoxicating liquors into the state in its coaches and its action and conduct are in aid and assistance to those who bring into the state such liquors for sale, keeping and storage contrary to law; that such conduct constitutes the defendant a common nuisance under the common and statute laws of the state; that a large number of persons, many of whom are of questionable character and standing, travel on defendant's cars between certain towns in Maryland in which liquors are sold and points in this state, carrying no other baggage than large quantities of liquors in containers, called paper cartons, with content labels on them, conforming to the statutory requirements; that such packages are not baggage; that the carriers of these packages seem to be "only incidental to this liquor baggage, their functions being the supervision and safe transportation thereof;" that George McCarty brought in 362 pints of beer, weighing 360 lbs., July 5, 1915, Louie Viney 57 qts. of whiskey, 5 gals, of...