Tucker v. State ex rel. Snow

Decision Date07 December 1926
Docket Number1265
Citation251 P. 460,35 Wyo. 430
PartiesTUCKER v. STATE EX REL. SNOW, COUNTY AND PROSECUTING ATTORNEY [*]
CourtWyoming Supreme Court

[Copyrighted Material Omitted]

ERROR to District Court, Big Horn County; P. W. METZ, Judge.

Contempt proceedings by the State, on the relation of William C. Snow County and Prosecuting Attorney, against P. A. Tucker, for violation of a liquor nuisance injunction. From a judgment finding defendant guilty of contempt defendant brings error.

STATEMENT OF FACTS

On November 23, 1923, an action was commenced in the District Court of Big Horn County in the name of the State of Wyoming on relation of William C. Snow, County and Prosecuting Attorney, against the Alamo Hotel, P. A. Tucker and others, to abate a nuisance and for injunction. The petition in the case alleges in substance as follows: That premises in the town of Greybull, known as the Alamo Hotel, are, and for two years last past have been, continuously and habitually used, owned or leased for selling, peddling, keeping and dispensing intoxicating liquor contrary to law; that it is now and has for two years past been maintained, used or leased as a tippling house, or saloon, to which drunkards, thieves and disorderly persons of both sexes resort, and wherein persons purchase and consume intoxicating liquor, become drunk, quarrelsome or stupefied, and where such stupefied persons are relieved of valuables by thieves frequenting the place, and where liquor in wholesale quantities is stored for use in liquor traffic of wide extent throughout the state; that notwithstanding that plaintiff, since last March, has thrice raided the place on such warrants and each time found liquor in the place, and each time has made complaint against the persons found in possession thereof, including three charges for the same offense against the defendant Tucker, and arrests have been made of persons selling liquor in said hotel, and one charge therefor has been made against the defendant Tucker, yet bonds have been furnished in these cases and it has been since impossible, by reason of having no jury term of court, to bring these charges to trial; that the result has been to bring the law into scandal and contempt and injure the reputation of the town of Greybull; that the property of the town of Greybull in the neighborhood of the said hotel is being injured for residence and business purposes by the existence of such illegal traffic, all of which makes the said Alamo Hotel a nuisance; that since the beginning of the month of October, 1923, as previously, the said hotel has been occupied, controlled and managed by the defendant P. A. Tucker (and others, naming them), nominally as a hotel, but really for the purpose of storing and selling intoxicating liquor, and that the sale of liquor therein continues as before, under the management and control of the defendants; that the business of trafficing in liquor at the Alama hotel has been conducted during the period of two years, aforesaid, by the defendant P. A. Tucker (and others, naming them); that the entire premises, either continuously or alternately, are used for and devoted to the business of trafficing in liquor. Wherefore plaintiff prays that the Alamo Hotel, aforesaid, may be declared a nuisance and an order entered for the abatement of the same, said order directing the removal of all fixtures, furniture and movable property contained therein used in conducting, keeping, maintaining, storing, selling or giving away intoxicating liquor with intent to violate the laws of this state; and that the court enter an order closing said building against its further illegal use for the period of one year; and that an injunction or temporary restraining order, pendente lite, may be granted forbidding the defendants from keeping, maintaining, storing, selling and giving away intoxicating liquor in said hotel, and forbidding the removal therefrom of any movable property on said premises used in connection with or in maintaining said nuisance; and that the said temporary restraining order may be made permanent on the entry of the final judgment or decree; that when said injunction is made permanent a tax of $ 300 may be assessed against said hotel. Plaintiff prays for such other and further relief as may be equitable.

On the 10th day of December, 1923, upon a hearing had on said petition, the defendant Tucker appearing by counsel, an order for temporary injunction was made and entered by the court in said case, enjoining said defendants from keeping, maintaining, storing, selling or giving away intoxicating liquor, in violation of law, on said premises, and from removing any movable property therefrom, used in connection with or in maintaining the business of storing, selling or giving away intoxicating liquor in violation of law.

On January 21, 1924, a contempt proceeding was instituted by means of an information filed in the office of the Clerk of the District Court of said Big Horn County by the County and Prosecuting Attorney of said county, charging that said defendant, P. A. Tucker, on the 19th day of January, 1924, in the county of Big Horn, in the state of Wyoming, knowingly and unlawfully sold and delivered in said Alamo Hotel "unto Orrin M. Elmer, intoxicating liquor to the amount of four quarts, and on the same day and date and at the same place, to-wit the Alamo Hotel, did sell and deliver unto said Elmer and to one Moore, whose first name to affiant is unknown, a drink each of intoxicating liquor, knowingly and unlawfully, contrary to a certain order of injunction, issued out of the District Court of Big Horn County, Wyoming, on the 10th day of December, 1923, of which injunction the said P. A. Tucker then and there had notice, forbidding the said P. A. Tucker and all other persons from keeping, maintaining, storing, selling or giving away intoxicating liquor in violation of law on the premises known as the Alamo Hotel, aforesaid; said injunction having issued in the case wherein the State of Wyoming is plaintiff (ex rel. William C. Snow, County and Prosecuting Attorney) and the Alamo Hotel, C. W. Shomo, P. A. Tucker, et al., are defendants, contrary to the form of statute in such case made and provided, and against the peace and dignity of the State of Wyoming."

A bench warrant was issued upon the filing of said information and the defendant arrested thereunder and brought into court to answer the said information. On the 1st day of February, 1924, and prior to the hearing had on said information, the defendant filed, in the original action and also in the contempt proceeding instituted by information as aforesaid, his motions, supported by affidavits for a change of judge, alleging that defendant could not have a fair trial on account of prejudice and bias of the judge of the 5th Judicial District of Wyoming, and asking the court to call in another judge to try the case. These motions and affidavits were presented to the court before the hearing was had in the contempt proceeding, but were denied, to which an exception was duly taken. The defendant then moved the court to dismiss the bill for injunction and the information in the case, and to quash the order and bench warrant upon which the defendant was brought into court, for the alleged reason that neither the bill nor the information states facts sufficient to constitute a cause of action in favor of the plaintiff and against the moving-defendant; and that plaintiff's bill and the information do not state facts sufficient to entitle plaintiff to the relief prayed for against the moving-defendant. This motion was denied and exception noted. The hearing on the information thereupon proceeded, and upon the conclusion thereof the court found the defendant Tucker guilty of contempt, and assessed a fine against him in the sum of $ 500, said defendant to be confined in jail until the payment of the same. Upon request that the court should indicate under which law the fine was imposed, the court stated that it was done pursuant to the authority under section 24, chapter 117, Session Laws of Wyoming, 1921. From the judgment so entered by the court, the defendant Tucker has brought his proceedings in error to this court.

Affirmed.

E. E Enterline and F. A. Little, for plaintiff in error.

The motion for change of Judge should have been granted; Murdica v. State, 22 Wyo. 196; 6419 and 6423 C. S.; the bill does state a cause of action; 5649 C. S.; Blue v. Blue, 30 A. L. R. 1169. The allegations of the bill are in the alternative and fatally defective; 33 C. J. 697; U.S. v. Cohen, 268 F. 420; U.S. v. Butler, 278 F. 677; U.S. v. Lot 29, Block 16, 296 F. 729. The bill is predicated under the provisions of Chapter 87, Laws 1921, repealed by provisions of Chapter 117, Laws 1921. The trial court was without jurisdiction to adjudge defendant guilty of contempt; Miskimmins v. Shaver, 8 Wyo 392; Bandy v. Hehn, 10 Wyo. 157; State v. Kusel, 29 Wyo. 287; State v. LaFollette, (Ore.) 196 P. 412. The information does not state facts showing a violation of the injunctional order; People v. Hadley, (Cal.) 226 P. 837; U.S. v. Cohen, supra. Defendant's motion to quash the bench warrant should have been sustained; the order adjudging contempt is not sustained by sufficient evidence; 13 C. J. 6, 77-78; 6 R. C. L. 490; Jones v. U.S., 209 F. 585. A defendant charged with one offense, cannot be convicted of another; Fields v. Territory, 1 Wyo. 78; State v. Lowry, 29 Wyo. 251; State v. Wells, 29 Wyo. 335. The title of Chapter 117, Laws 1921, is defective; in re Judicial District, 4 Wyo. 133; State v. Tobin, (Wyo.) 226 P. 681; Lamar Co. v. Co., 26 Colo. 370; People v. Frederich, (Colo.) 185 P. 657. Equity is without jurisdiction to abate a public nuisance; U.S. v. Lot 29, supra; ...

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