State v. Snoderly, 6657

• Citation: 61 Idaho 314,101 P.2d 9
• Decision Date: 27 March 1940
• Docket Number: 6657
• Parties: STATE, Respondent, v. HARRY SNODERLY and CHARLES INDERWIES, Doing Business Under the Firm Name and Style of BAVARIAN BEER GARDEN, and MAUD WALDRIDGE, Appellants
• Court: United States State Supreme Court of Idaho

101 P.2d 9

61 Idaho 314

STATE, Respondent,
v.
HARRY SNODERLY and CHARLES INDERWIES, Doing Business Under the Firm Name and Style of BAVARIAN BEER GARDEN, and MAUD WALDRIDGE, Appellants

No. 6657

Supreme Court of Idaho

March 27, 1940

INTOXICATING LIQUOR-NUISANCE-ABATEMENT-EVIDENCE-APPEAL.-

1. Equity has jurisdiction over abatement and suppression of a nuisance, either public or private, though the nuisance is made an indictable offense by statute.

2. To authorize abatement of premises as nuisance, the test of nuisance is not number of sales of intoxicating liquors nor length of time liquor is kept upon the premises, but whether the place is maintained for the keeping and sale of liquor in statutory sense. (Sess. Laws, 1935, chap. 103, secs. 57, 59.)

3. Evidence held to authorize abatement of beer garden as a nuisance, notwithstanding testimony that general reputation of the place was good. (Sess. Laws, 1935, chap. 103, secs. 57, 59.)

4. In equity as well as at law, findings and judgment made by trial court upon conflicting evidence will not be disturbed where there is substantial evidence to support them.

5. The reviewing court would not consider contentions which were neither argued nor briefed.

6. Appellants had the burden of showing existence of error prejudicial to them.

APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. T. Bailey Lee, Judge.

Suit to abate a nuisance. Judgment for plaintiff. Affirmed with directions.

Judgment affirmed with directions. Costs awarded to respondent.

Chapman & Chapman, Lionel T. Campbell and Paul S. Boyd, for Appellants.

The evidence in this case is insufficient to prove the establishment or operation of a nuisance by appellants within the meaning of the word "nuisance." (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.)

Evidence of sporadic or isolated sales of intoxicating liquor is insufficient to prove the establishment or operation of a nuisance. (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. New York) 278 F. 677.)

The legislature cannot confer jurisdiction upon equity to enforce criminal statutes, or to restrain the prosecution or the commission of criminal offenses, or to restrain or prevent crime, or to enforce a moral duty, or where it does not appear that the plaintiff has no plain, speedy or adequate remedy at law. (McGinness v. Friedman, 2 Idaho 393, 17 P. 635; Washington etc. R. R. Co. v. Coeur d'Alene etc. Co., 2 Idaho 580, 21 P. 562; Evans v. District Court, 47 Idaho 267, 275 P. 99.)

J. W. Taylor, Attorney General, and R. W. Beckwith, Assistant Attorney General, for Respondent.

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. (State v. Sawtooth Men's Club, 59 Idaho 616, 85 P.2d 695.)

Evidence of two sales of liquor on a certain date, in a certain place with further evidence as to the place being maintained for, the keeping and sale of liquor is sufficient to prove the establishment and operation of a nuisance. (Chap. 103, 1935 Sess. Laws; State v. Sawtooth Men's Club, supra.)

HOLDEN, J. Ailshie, C. J., and Budge and Givens, JJ., MORGAN, J., concurring.

OPINION

[61 Idaho 315] HOLDEN, J.

Appellant Maud Waldridge owned certain premises located in Twin Falls county about a mile west of Buhl on U.S. Highway No. 30. Appellants Harry Snoderly and Charles Inderwies operated thereon a "Bavarian Beer Garden." January 10, 1938, the State of Idaho filed a complaint in the district court of that county, under the provisions of sections 57 and 59 of the Idaho Liquor Control [61 Idaho 316] Act (Sess. Laws 1935, chap. 103, p. 222) charging appellants Snoderly and Inderwies with operating (with the approval, consent and authorization of appellant Waldridge) a public nuisance contrary to and in violation of the provisions of the statute, and praying such premises be adjudged and decreed to be a nuisance and that appellants be enjoined and restrained from so using, operating or occupying the same, and that the premises be abated and locked to prevent such further use of the premises by appellants, their agents, representatives, assigns or grantees for a period of a year from the date of the decree.

Respondent annexed to its complaint an application for a temporary injunction, supporting the same by affidavits. Upon the application and supporting affidavits an order to show cause issued, returnable January 14, 1938. On the return day appellants moved to strike the supporting affidavits and also demurred to the complaint. February 3, 1938, the motion to strike was denied and the demurrer overruled. March 30, 1938, the state moved to vacate the order to show cause, which motion was granted April 5, 1938. April 22, 1938, appellants filed an answer to the complaint and the cause was thereupon tried by the court. August 30, 1938, findings of fact [101 P.2d 10] and conclusions of law were made and judgment signed. October 8, 1938, the findings and conclusions were filed and the judgment entered, adjudging the "Bavarian Beer Garden" to be a public nuisance and restraining and enjoining appellants from further operating and maintaining it. It was also adjudged and decreed that the premises be locked for a period of a year. The appeal is from the judgment.

Appellants earnestly contend "the legislature cannot...