Thompson v. State ex rel. Waid, 7 Div. 239

• Decision Date: 22 September 1955
• Docket Number: 7 Div. 239
• Citation: 263 Ala. 463,83 So.2d 70
• Parties: A. J. (Bud) THOMPSON et al. v. STATE ex rel. L. P. WAID, Jr., Solicitor.
• Court: Alabama Supreme Court

Page 70

83 So.2d 70

263 Ala. 463

A. J. (Bud) THOMPSON et al. v. STATE ex rel. L. P. WAID, Jr., Solicitor.

7 Div. 239.

Supreme Court of Alabama.

Sept. 22, 1955.

Rehearing Denied Nov. 3, 1955.

John H. Martin, Jr., and T. Eric Embry, Birmingham, for appellant.

Robt. Straub, Asst. Atty. Gen., L. P. Waid, Jr., Sol., Oneonta, and Samuel Kaufman, II, Montgomery, of counsel, for appellee.

MAYFIELD, Justice.

This is an appeal by A. J. (Bud) Thompson, et als. from a decree of the Circuit Court of St. Clair County, in equity, overruling their demurrer to a bill of complaint filed by the State of Alabama on the relation of L. P. Waid, Jr., as Solicitor of the Thirtieth Judicial Circuit. The bill seeks to enjoin an alleged liquor nuisance under Section 141, Title 29, Code of Alabama 1940.

Section 97, Title 29, Code of 1940, defines liquor nuisances as follows:

'The following are declared to be common nuisances and may be designated as liquor nuisances: Any rooms or structures used for the unlawful manufacture, sole, furnishing, distilling, rectifying, brewing, or keeping of liquors or beverages that are prohibited by the laws of Alabama to be manufactured, sold or otherwise disposed of in this state; all houses, shops, or places where such prohibited liquors and beverages, or any of them are sold, bartered, exchanged, or otherwise disposed of to be drunk on or near the premises, or where such prohibited liquors, liquids, or beverages are kept for the purpose of sale or other disposition thereof in violation of law; all places of resort where persons are permitted to resort for the purpose of drinking such liquors or beverages on or about the premises; any unlawful drinking place that is kept or maintained in violation of the law of the state; all restaurants, hotels and public eating places where the prohibited liquors and beverages, or any of them are sold or served for beverage purposes; all places where business is carried on by a wholesale or retail dealer in liquors or by a wholesale or retail dealer in malt liquors, or by a brewer or distiller or rectifier of spirits in violation of the law of the state; all warehouses or storage places where the prohibited liquors and beverages, or any of them, are kept or stored, or received on consignment, or for distribution or delivery, contrary to the law of the state. The bill to be filed to abate such nuistances may be filed against any person, firm or corporation who maintains or aids in maintaining such nuisance, including agents, servants and employes, as well as officers of corporations.'

Paragraph No. 6 of the bill of complaint provides:

'That said place of business is a liquor nuisance as defined in section 97 of Title 29 of the Code of Alabama of 1940, in that the structures are used for the unlawful sale, furnishing or keeping of liquors or beverages that are prohibited by the laws of Alabama to be manufactured, sold or otherwise disposed of in this State; that said place of business is a place where prohibited liquors and beverages are sold or otherwise disposed of to be drunk on or near the premises that said place of business is a place of resort where persons are permitted to resort for the purpose of drinking such prohibited liquors or beverages on or about the premises; that it is an unlawful drinking place kept or maintained in violation of the laws of Alabama.

'The Complainant alleges in the alternative that said place of business is a liquor nuisance as defined in section 97 of Title 29 of the Code of Alabama of 1940 in that it is a place where prohibited liquors, liquids or beverages are kept for the purpose of sale or other disposition thereof in violation of law.'

Section 145 of Title 29 provides for injunctions against owners or operators of nuisances 'who may be found to have knowingly assented to the keeping or maintaining of such nuisance on the premises at any time within six months prior to the commencement of the suit'. The appellants direct demurrer to the failure of the bill to allege in specific terms that the liquor nuisance was maintained by the respondents within the six months immediately before the commencement of this suit for injunction. While the statute clearly requires proof that the establishment was a liquor nuisance within six months preceding the filing of the petition for injunction, we are cited to no case which holds that this express averment, is a phrase of art or a necessary allegation of the complaint. It is, of course, true that in order for the State to...