State v. Sawtooth Men's Club

• Decision Date: 17 December 1938
• Docket Number: 6541
• Citation: 59 Idaho 616,85 P.2d 695
• Court: Idaho Supreme Court
• Parties: STATE, Respondent, v. SAWTOOTH MEN'S CLUB, a Nonprofit Corporation, and Its Manager, E. W. RUMMERFIELD et al., Appellants

85 P.2d 695

59 Idaho 616

STATE, Respondent, v. SAWTOOTH MEN'S CLUB, a Nonprofit Corporation, and Its Manager, E. W. RUMMERFIELD et al., Appellants

No. 6541

Supreme Court of Idaho

December 17, 1938

INTOXICATING LIQUOR - NUISANCE - ABATEMENT - INJUNCTION-PETITION SUFFICIENCY OF-CONSTITUTIONAL LAW-DUE PROCESS-APPEAL AND ERROR-VERIFICATION OF PLEADING.

1. The overruling of a demurrer that complaint was ambiguous uncertain, and unintelligible, was not ground for complaint where defendants did not point out in what respect complaint was ambiguous, etc., and where objection to original complaint as recited in demurrer was clarified in amended complaint.

2. A petition otherwise stating a cause of action is not subject to demurrer merely because it seeks to recover more relief than that to which plaintiff is entitled.

3. The closing of a building and denial of a right to use it for any purpose, especially under statutory provisions for abatement in cases of violation of liquor law, is not a taking of property without "due process of law." (Sess. Laws 1935, chap. 103, secs. 1, 57.)

4. A court of equity has jurisdiction over the abatement and suppression of a nuisance, either public or private, which the court may exercise, notwithstanding the nuisance is made an indictable offense by statute.

5. In state's action against incorporated club for abatement of nuisance, where appeal was not taken with reference to any rulings upon the temporary injunction but rather from a later decree and order, club's assignment that court erred in denying club's motion that the issue on the hearing for a temporary injunction be limited to that which was necessary to abate the alleged nuisance was not properly before the Supreme Court.

6. The word "or," used in statute providing for abatement of building in which sale of liquor is carried on or continued or exists, is defined as a disjunctive particle used to express an alternative or to give a choice of one among two or more things, or a coordinating particle that marks an alternative. (Sess. Laws 1935, chap. 103, secs. 1, 57.)

7. The word "exist," used in statute providing for abatement of building in which sale of liquor is carried on or continued or exists, means to be or continue to be, in fact; has actual being; to live, to have life, or animation to be in present force, activity or effect at a given time. (Sess. Laws 1935, chap. 103, secs. 1, 57.)

8. The statute providing for abatement, as a nuisance, of building in which sale of liquor is carried on or continued or exists indicates that such building shall be abated as a nuisance if there be a violation or continues to be violations under the statute. (Sess. Laws 1935, chap. 103, secs. 1, 57.)

9. The test of a statutory "nuisance," based on illegal sale of liquor under a statute not prescribing the number of violations or length of time violation must continue in order to constitute the offense, is not the number of sales made or the length of time liquor is kept upon the premises, but whether the place is maintained for the keeping and sale of liquor in the sense of the statute.

10. An incorporated club, which maintained a place wherein alcoholic liquors were sold and kept with intent to sell, constituted a "nuisance" within statute providing for abatement of building in which sale of liquor is carried on or continued or exists notwithstanding only two sales of liquor were made. (Sess. Laws 1935, chap. 103, secs. 1, 4, 57.)

11. Defendant's failure properly and seasonably to object to pleading for lack of proper verification waived any right defendant had to object to the verification.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. E. Winstead, Judge.

Action for abatement of nuisance. Judgment for respondent. Affirmed.

Affirmed.

J. M. Lampert, for Appellants.

An injunction should be limited to such usage of premises as create the nuisance leaving the right to carry on business in a proper and lawful manner. (Lorenzi v. Star Market Co., 19 Idaho 674, 115 P. 490, 35 L. R. A., N. S., 1142.)

The property here in question belongs to appellant under lawful lease and it has a right to use the property in any lawful manner in which it sees fit to employ its property so long as it does not injure or damage anyone else. (Lorenzi v. Star Market Co., supra.)

Drastic measures are permitted only when such measures are shown by the evidence to be required. Two drinks sold on one day are the only evidence in this record. Contrasting very materially with the record in a somewhat similar case heretofore before this court. (State v. Kasiska, 27 Idaho 548, 150 P. 17.)

In such instances in which injunction lies to prevent conduct amounting to a nuisance the abatement order is limited to the 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. If a merchant has unlawfully sold or used liquors in his establishment his store cannot be shut up and abated as a place of sale of drygoods, furniture, shoes or clothing. Or if he has sold liquors in his home the court should not abate the place as a residence. (Sec. 69, chap. 103, Idaho Sess. Laws of 1935; 27 R. C. L., p. 481, sec. 94; State v. Baltimore & O. R. Co., 78 W.Va. 526, 89 S.E. 288, L. R. A., 1916F, 1001.)

The building in question and furniture and fixtures therein are not per se unlawful or a nuisance or incapable of lawful use and can be and should be permitted to continue in use for lawful purposes, otherwise appellant is denied the due process of protection of our federal and state constitutions. (Mullen & Co. v. Moseley, 13 Idaho 457, at pp. 466, 467, 468, 90 P. 986, 121 Am. St. 277, 13 Ann. Cas. 450, 12 L. R. A., N. S., 394.)

Willis C. Moffatt, Prosecuting Attorney, and Kenneth O'Leary, Deputy Prosecuting Attorney, for Respondent.

The mere keeping of liquor for sale, or one sale, constitutes a statutory nuisance. (Farrell v. United States, (C. C. A.) 21 F.2d 318; United States v. Butler Hotel Co., 32 F.2d 324, 329; United States v. Stevens, 103 Conn. 7, 130 A. 249.)

Complaint to abate liquor nuisance is not bad because greater relief is sought than may be allowed under the law. (33 C. J. 697; State v. Marshall, 100 Miss. 626, 56 So. 792, Ann. Cas. 1914A, 434.)

The language of section 69, chapter 103, 1935 Session Laws of the State of Idaho, " . . . . against its use for any purpose prohibited in this act . . . . " refers to the cause for which the building is to be closed and not the manner of abating the nuisance. (McCoy v. Clark, 109 Iowa 464, 80 N.W. 538; Lewis v. Brennan, (Iowa) 117 N.W. 279; Lewis v. Brennan, 141 Iowa 585, 120 N.W. 332; State v. Knapp, 178 Iowa 25, 158 N.W. 515; 33 C. J. 699 (notes 91 and 92).)

The closing of a building and the denial of the right to use the same for any purpose, is not a taking of property without due process of law. (United States v. Boynton, (D. C.) 297 F. 261; Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205.)

Chapman & Chapman and Paul S. Boyd, as Amicus Curiae.

That the word "nuisance" has a well defined and legal meaning. (Bailey v. Kelly, 93 Kan. 723, 145 P. 556, L. R. A. 1916D, 1220; United States v. Cohen, (D. C. Mo.) 268 F. 420, 422; Wynkoop v. City of Hagerstown, 159 Md. 194, 150 A. 447, 450.)

To constitute a nuisance there must be a continuing offense or recurrent acts. (State v. Maguire, 31 Idaho 24, 169 P. 175; United States v. Cohen, supra; Wynkoop v. City of Hagerstown, supra; United States v. Butler, (D. C.) 278 F. 677.)

A court of equity has no jurisdiction to grant equitable relief where the public nuisance constitutes a crime and the legislature cannot confer jurisdiction upon courts of equity to punish and abate a nuisance which is denounced as a crime for the reason that it deprives the accused of a constitutional right to indictment or information and trial by jury. (Hedden v. Hand, 90 N.J. Eq. 583, 107 A. 285, 5 A. L. R. 1463; State ex rel. Stewart v. District Court, 77 Mont. 361, 251 P. 137, 49 A. L. R. 627; People ex rel. L'Abbe v. District Court of Lake County, 26 Colo. 386, 58 P. 604, 46 L. R. A. 850.)

BUDGE, J. Holden, C. J., Morgan and Givens, J., concur. Ailshie, J., took no part in the decision.

OPINION

BUDGE, J.

This action was brought under the provisions of chapter 103, Idaho Sessions Laws, 1935, seeking to close a certain building for the period of one year.

The complaint filed alleged certain premises, together with furniture, fixtures, vessels and utensils had been maintained and operated as a place where alcoholic liquors are sold and kept with intent to sell, and that said premises and property are a public and common nuisance, and a temporary writ of injunction and abatement and an order to show cause were applied for, affidavit of one L. C. Boyle being filed in support of the motion for order to show cause.

Order to show cause issued. Appellant, through its manager E. W. Rummerfield, demurred to the complaint by general demurrer, demurrer on the ground of uncertainty and ambiguity, on the ground costs, fines and liens are in the nature of criminal proceedings and therefore should not be presented before a court of equity, and that the action sought to take property of appellants without due process of law, and an answer was later filed. A temporary injunction issued and thereafter the demurrers, general and special, were overruled and the court denied a motion to modify the temporary injunction. Findings of fact and conclusions of law were waived and certain facts were stipulated, essentially as follows:

1. That the Sawtooth Men's Club at all times mentioned was and now is a non-profit corporation organized and existing under...