State v. Mercier

• Decision Date: 24 April 1924
• Docket Number: 5432.
• Citation: 225 P. 802,70 Mont. 333
• Parties: STATE v. MERCIER ET AL.
• Court: Montana Supreme Court

225 P. 802

70 Mont. 333

STATE v. MERCIER ET AL.

No. 5432.

Supreme Court of Montana

April 24, 1924

Appeal from District Court, Park County; H. J. Miller, Judge.

Proceeding by the State against Mrs. Minnie Mercier and another to have certain premises declared a common nuisance and a continuation thereof enjoined. From the judgment rendered defendants appeal. Affirmed.

Gibson & Smith, of Livingston, for appellants.

W. D Rankin, Atty. Gen., for the State.

HOLLOWAY J.

A complaint was filed in the district court of Park county which charged the defendant Hart, the lessee in possession of a rooming house in Livingston, with the knowledge and consent of defendant Mercier, the owner of the property, was maintaining the premises as a place where intoxicating liquors were kept for sale and sold in violation of law. After issues were joined the cause was tried to the court without a jury, resulting in a judgment which declared the place to be a common nuisance and enjoined the defendants from using it or permitting it to be used for the purpose of keeping or selling intoxicating liquors in violation of law. By the judgment the sheriff was directed to abate the nuisance by closing the place and keeping it closed "until released in the manner provided by law." The appeal is from the judgment.

Section 11066, Revised Codes, declares that any house where intoxicating liquors are manufactured, sold, kept, or bartered in violation of law is a common nuisance. Section 11067 provides that an action may be prosecuted to enjoin such a nuisance, and that "such action shall be brought and tried as an action in equity."

1. Notwithstanding the terms of this statute, defendants insist that they were entitled to have a jury determine the question of the existence of a nuisance. The contention cannot be sustained. The right of trial by jury, guaranteed by section 23, article 3, of our state Constitution, is the right as it existed at the time the Constitution was adopted (Cunningham v. Northwestern Improvement Co., 44 Mont. 180, 119 P. 554), and at that time the right was exactly the same as the right secured by the Seventh Amendment of the Constitution of the United States (Montana Ore Pur. Co. v. Boston & Montana Con. C. & S. Min. Co., 27 Mont. 536, 71 P. 1005). Nearly 40 years ago, and prior to the adoption of our state Constitution, the Supreme Court of the United States held that a statute similar in its provisions to our sections 11066 and 11067, above, did not impinge upon the provisions of the Seventh Amendment, and that in a proceeding of this character the defendant was not entitled to a jury trial. Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205. The doctrine of that case has been followed generally by the courts of this country.

Counsel for defendants err in assuming that the decision in Chessman v. Hale, 31 Mont. 577, 79 P. 254, 68 L. R. A. 410, 3 Ann. Cas. 1038, conflicts in the least with the rule just stated. In Chessman v. Hale it was charged that the defendant was maintaining a private nuisance in that he had caused tailings from his mining operations to be carried on to plaintiff's land and threatened to continue the trespasses. The purpose of that action was to recover damages for the trespasses, and as an incident to the principal relief an injunction was sought to restrain the continuance of the nuisance. The purpose of the present action is to restrain the defendants from maintaining a public nuisance; damages are not sought and are not recoverable. These rules are stated aptly in 20 R. C. L. 484, as follows:

"In some of the decisions it is held that, under a constitutional provision securing the right of trial by jury, the plaintiff in an action to recover damages for a nuisance is entitled as of right to have a trial by jury of the questions as to the existence of the nuisance and the damages recoverable therefor, even though he seeks in the same action to enjoin the continuance of the nuisance. * * * In the case of public nuisances, where the application is for an injunction only, no damages being demanded, it seems to be settled that constitutional guaranties do not require a trial by jury."

2. Section 11067, above, provides that, if the court finds that a particular place is a common nuisance within the definition given in section 11066, it may order that the place shall not be occupied or used for one year thereafter. Counsel for defendants contend that this section is invalid in so far as it authorizes a place to be closed against lawful use, but they have not cited any authority to sustain their position. The provisions of section 11067 are substantially the same as those found in section 22 of the Volstead Act (41 Stat. 314 [Comp. St. Ann. Supp. 1923, § 10138 1/2k]), and the provisions of the Volstead Act have been enforced without question, so far as our inquiry goes, since the decision in National Prohibition Cases, 253 U.S. 350, 40 S.Ct. 468, 588, 64 L.Ed. 946. See, also, United States v. Reisenweber (C. C. A.) 288 F. 520.

3. 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. State v. Hendricks, 15 Mont. 194, 39 P. 93, 48 Am. St. Rep. 666; Demartini v. Anderson, 127 Cal. 33, 59 P. 207; People v. Macy, 43 Cal.App. 481, 184 P. 1008; Pastime v. State, 138 Tenn. 315, 197 S.W. 1089; Ward v. State, 15 Okl. Cr. 150, 175 P. 657; Ryan v. United States (C. C. A.) 285 F. 734; 33 C.J. 698; Blakemore on Prohibition, 248.

4. It is urged that the evidence is insufficient to sustain the finding that the place in question is a common nuisance. In addition to the evidence of general reputation, the state introduced the testimony of one D. H. Abbott to the effect that on June 6, 1923, he and James Angus visited the place in question and then and there purchased from defendant Hart four drinks of moonshine liquor. We reaffirm what was said in State v....