Town of Kirkland v. Ferry

• Decision Date: 13 March 1907
• Citation: 45 Wash. 663,88 P. 1123
• Parties: TOWN OF KIRKLAND v. FERRY et al.
• Court: Washington Supreme Court

88 P. 1123

45 Wash. 663

TOWN OF KIRKLAND v. FERRY et al.

Supreme Court of Washington

March 13, 1907

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by the town of Kirkland against John A. Ferry and others. From a judgment sustaining a demurrer to the complaint plaintiff appeals. Reversed and remanded.

Judd &amp Sampson, for appellant.

Frank S. Griffith, for respondents.

DUNBAR, J.

This action was decided on demurrer to the complaint, the demurrer having been sustained by the court; and the sufficiency of the complaint is the only question involved. The complaint alleges that the plaintiff, the town of Kirkland, is a city of the fourth class, located in King county; that defendant Ferry has been, and now is, occupying a certain building in said town, specifically described; that he has been holding the same under the other defendants, Kirkland and Improvement Company and Stewart & Holmes Drug Company; that a portion of the premises has been, and is now, maintained by Ferry as a place in which intoxicating liquors are kept and harbored for the evident purpose of selling and giving away said liquors contrary to law, and where persons are permitted to resort for the purpose of drinking intoxicating liquors, and where intoxicating liquors are kept for the purpose of inducing people to resort, to buy and receive intoxicating liquors in violation of law; that the other defendants under whom Ferry holds have full knowledge of the facts; that none of the defendants have ever obtained from the plaintiff a license to sell intoxicating liquors. The complaint also set forth an ordinance passed by the town of Kirkland, reciting the facts as to Ferry's use of the premises, and declaring that said building 'as now kept and maintained is hereby declared to be a public nuisance'; that the ordinance directs the town attorney to notify the persons under whom Ferry holds to abate the nuisance, and, if they fail to do so, to bring suit in the superior court of King county to abate and enjoin the same. The demurrer was sustained on the gound that the court had no jurisdiction of the subject-matter of the action, and that the complaint did not state facts sufficient to constitute a cause of action.

It is assigned that the court erred in sustaining the demurrer to the complaint and in entering judgment dismissing the suit. The validity of the ordinance is questioned by the respondent, and we are inclined to think that the town of Kirkland had no authority to pass the ordinance in question, and to declare specifically that the building as kept was a public nuisance. But, conceding for the purposes of this decision, that the ordinance was invalid, we still think there was enough in the complaint to state a cause of action. It is asserted by the respondent in his brief that all places where spirituous and malt liquors are kept for sale and sold without a license are not public nuisances, and that this judgment must be affirmed unless this court can say that all places in cities or towns where intoxicating liquors are sold without a license are public nuisances per se. Because, it is argued, druggists are permitted under the statute...