State v. Kasiska

Decision Date16 June 1915
Citation150 P. 17,27 Idaho 548
PartiesSTATE, Respondent, v. W. F. KASISKA, Appellant
CourtIdaho Supreme Court

INTOXICATING LIQUORS-SALE OF-INJUNCTION-PROHIBITION DISTRICT-MOTION TO DISSOLVE OR MODIFY.

1. An act approved February 18, 1911 (Sess. Laws, p. 30), is an act supplementing and providing additional means for the enforcement of the provisions of certain acts intended to regulate, restrain, control and prohibit the sale of intoxicating liquors, and provides, among other things, that all places in a prohibition district where intoxicating liquors are sold, furnished, delivered, given away or otherwise disposed of in violation of law, etc., are common nuisances; and also provides that the prosecuting attorney of any county where such nuisances exist may maintain an action in the district court, in the name of the state, to abate and perpetually enjoin the same, and that an injunction can be granted at the commencement of an action and no bond shall be required.

2. Under the provisions of said act the prosecuting attorney brought this action and the judge of the fifth judicial district in and for the county of Bannock issued a writ of injunction by which the defendant was enjoined from keeping open or permitting to be kept open the Bannock Hotel, the building in which it was alleged illegal sales of intoxicating liquors were made, and also enjoined the defendant from selling, delivering or otherwise disposing of intoxicating liquors in and about said premises.

3. Held, under said act and the allegations of the complaint that the judge did not err in granting said injunction.

4. Held, that the injunction issued was a temporary one and was only intended to continue until the final hearing of the case unless sooner modified by the court or judge.

5. Held, under the facts in this case that the court did not err in denying the motion to dissolve or modify said injunction.

APPEAL from the District Court of the Fifth Judicial District for Bannock County. Hon. J. J. Guheen, Judge.

Action to have the Bannock Hotel building in the city of Pocatello adjudged and declared to be a common nuisance and to enjoin the defendant from selling intoxicating liquors in said hotel. Temporary injunction granted. Motion to dissolve or modify denied. Affirmed.

Orders affirmed, with costs in favor of the state.

Perky &amp Crow and R. M. Terrell, for Appellant.

The effect of the judgment granted was to completely abate the place alleged to have been a nuisance. This cannot be properly done upon an injunction issued ex parte at the time of the filing of the complaint. The effect of closing down the place where the purported sales were made is to grant to the plaintiff a final decree before any hearing whatever upon the issues involved. This cannot legally be done. (Teutonia Club v. Howard, 141 Ga. 79, 86 S.E. 290; Arnold v. Bright, 41 Mich. 207, 2 N.W. 16; Consolidated Vinegar Works v. Brew, 112 Wis. 610, 88 N.W. 603; Weaver v. Toney, 107 Ky. 419, 54 S.W. 732 50 L. R. A. 105; Becker v. Gilbert (N. J.), 60 A 29; Forman v. Healey, 11 N.D. 563, 93 N.W. 866; 22 Cyc. 740, 741.)

Only so much of the objectionable thing can be removed as was actually responsible for the nuisance. (29 Cyc. 1217.)

The practice seems to be, even in those states having the most rigid abatement laws, to issue the injunction forbidding the selling of liquor in the hotel in which the nuisance is alleged to exist. (Cooley v. Charles Hotel (Iowa), 130 N.W. 115.)

The proper conduct of a lawful business cannot be enjoined. (Village of American Falls v. West, 26 Idaho 301, 308, 142 P. 42.)

Where a business is not per se a nuisance or unlawful, it is always safer for the court to make its injunction only broad enough to prohibit a continuance of the business in such a manner or under such conditions or circumstances as to annoy or be offensive to the party aggrieved. (Lorenzi v. Star Market Co., 19 Idaho 681 (bottom of page), 115 P. 490, 35 L. R. A., N. S., 1142.)

The court upon an ex parte proceeding cannot deprive a man of his property. (McConnell v. McKillip, 71 Neb. 712, 115 Am. St. 614, 99 N.W. 505, 65 L. R. A. 610, 8 Ann. Cas. 898; Modern Loan Co. v. Police Court, 12 Cal.App. 582, 108 P. 56.)

J. H. Peterson, Atty. Genl., E. G. Davis and T. C. Coffin, Assistants, C. D. Jones and McDougall & Smith, for Respondent.

Under the authorities in a matter of this kind, the issuance of the restraining order runs clearly to the abatement of the place as a nuisance rather than to the commission of unlawful acts, namely, the selling of intoxicating liquor in dry territory. This clearly follows from the provisions of sec. 2 of the search and seizure act, quoted above, wherein certain "places" are declared to be "common nuisances," and it is the maintenance of these places as common nuisances which courts are authorized to enjoin by the issuance of an injunction at the commencement of the action. (Carleton v. Rugg, 149 Mass. 550, 14 Am. St. 446, 22 N.E. 55, 5 L. R. A. 193; Littleton v. Fritz, 65 Iowa 488, 54 Am. Rep. 19, 22 N.W. 641; Pontius v. Bowman, 66 Iowa 88, 23 N.W. 277; State v. Nelson, 13 N.D. 122, 99 N.W. 1077; State v. Massey, 72 Vt. 210, 47 A. 834; Commonwealth v. Purcell, 154 Mass. 388, 28 N.E. 288.)

Defendant's right to operate a hotel is to operate it in a wholly lawful manner, and where legitimate operations are coupled with unlawful transactions, as the record shows to have been the facts in this case, it is a matter which must rest in the sound discretion of the trial court to determine whether the whole operation of the hotel should be enjoined, or only a part thereof. (Flood v. Goldstein, 158 Cal. 247, 110 P. 916; Klein v. Davis, 11 Mont. 155, 27 P. 511; Cotter v. Cotter, 16 Mont. 63, 40 P. 63; Cunningham v. Ponca City, 27 Okla. 858, 113 P. 919; Stowe v. Powers, 19 Wyo. 291, 116 P. 576; Anderson v. Eagleheart, 18 Wyo. 409, 108 P. 977.)

The constitutional guaranty of due process of law does not affect the police power of the state, inasmuch as the police power itself is deemed due process of law. (Lawton v. Steele, 119 N.Y. 226, 16 Am. St. 813, 23 N.E. 878, 7 L. R. A. 134; In re Newell, 2 Cal.App. 767, 84 P. 226; Garland Novelty Co. v. State, 71 Ark. 138, 71 S.W. 257; Board of Police Commrs. v. Wagner, 93 Md. 182, 86 Am. St. 423, 48 A. 455, 52 L. R. A. 775; Cartwright v. City of Cohoes, 56 N.Y.S. 731, 39 A.D. 69, 165 N.Y. 631, 59 N.E. 1120; Ex parte McCue, 7 Cal.App. 765, 96 P. 110; North American Cold Storage Co. v. Chicago, 151 F. 120, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195, 15 Ann. Cas. 276; Knight & Jillson Co. v. Miller, 172 Ind. 27, 87 N.E. 823, 18 Ann. Cas. 1146; State v. Dannenberg, 151 N.C. 718, 66 S.E. 301, 26 L. R. A., N. S., 890; Pittsburg C. C. & St. L. R. Co. v. State, 180 Ind. 245, 102 N.E. 25; Hiller v. State (Md.), 92 A. 842; Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205.)

SULLIVAN, C. J. Budge and Morgan, JJ., concur.

OPINION

SULLIVAN, C. J.

This is an appeal from an order granting an injunction or restraining order, and also from an order refusing to dissolve or modify the same. This proceeding was brought under the provisions of secs. 2 and 4 of an act to supplement, strengthen and provide additional means for the enforcement of the provisions of certain acts intended to regulate, restrain, control and prohibit the sale of intoxicating liquors, approved Feb. 18, 1911 (Sess. Laws 1911, p. 30). Said sections are as follows:

"Sec. 2. All places in a prohibition district of the state of Idaho where intoxicating liquors are sold, furnished, delivered, given away, or otherwise disposed of in violation of law; 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, delivery or disposition in violation of law, and all intoxicating liquors, vessels, glasses, kegs, pumps, bars and other property kept in and used in maintaining such a place, are hereby declared to be common nuisances, and every person who maintains or assists in maintaining such common nuisance is guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not less than twenty-five dollars ($ 25), nor more than five hundred dollars ($ 500), or by imprisonment in the county jail for not less than ten (10) days nor more than six (6) months, or by both such fine and imprisonment for each offense."

"Sec. 4. The prosecuting attorney of any county where such a nuisance, as defined in section 2 of this act, exists, or is kept or maintained, may maintain an action in the district court of such county in the name of the state of Idaho to abate and perpetually enjoin the same. The injunction shall be granted at the commencement of the action and no bond shall be required. Any person violating the terms of such injunction shall be punished for contempt by a fine of not less than one hundred dollars ($ 100), nor more than five hundred dollars ($ 500), or by imprisonment in the county jail for not less than thirty (30) days nor more than six (6) months, in the discretion of the court or judge thereof."

It is alleged in the complaint that the defendant, Kasiska, was the owner and in the possession of what is known as the Bannock Hotel, situated in the city of Pocatello, and that during all of the times mentioned in the complaint said hotel was used for the sale of intoxicating liquors, and that for the purpose of carrying on said business and concealing the same from the public generally, the lobby, bar-room halls, stairways, card-rooms and other rooms of said hotel were used for said purpose with the full knowledge and consent of the defendant, and that the use of said hotel as set out in said complaint makes and constitutes the same a common...

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2 cases
  • Packard v. O'Neil
    • United States
    • Idaho Supreme Court
    • December 31, 1927
    ... ... with automobile, allegation in complaint that defendant was ... under influence of intoxicating liquors included condition of ... being in state of intoxication and authorized court to give ... instruction, under Laws 1921, chap. 249, sec. 1, subd. 18, ... that, if defendant was in state of ... 837; Bernardi v. Northern ... Pacific Ry. Co., 18 Idaho 76, 108 P. 542, 27 L. R. A., ... N. S., 796; State v. Kasiska, 27 Idaho 548, 150 P ... 17; Commonwealth v. Pentz, 247 Mass. 500, 143 N.E ... 322; Brown v. Feeler, 35 Idaho 57, 204 P. 659; ... ...
  • State v. Sawtooth Men's Club
    • United States
    • Idaho Supreme Court
    • December 17, 1938
    ...in the final order and decree entered in this case, is a taking of property without due process of law, and void." An examination of State v. Kasiska, supra, discloses that the remarks contained in the opinion which appellants rely were made with reference to a conjectural situation not bef......

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