United States v. ALL BUILDINGS, ETC.

• Decision Date: 05 November 1928
• Docket Number: No. 523-N.,523-N.
• Citation: 28 F.2d 774
• Parties: UNITED STATES v. ALL BUILDINGS, ETC., KNOWN AS WALL PROPERTY et al.
• Court: U.S. District Court — Panama Canal Zone

28 F.2d 774 (1928)

UNITED STATES v. ALL BUILDINGS, ETC., KNOWN AS WALL PROPERTY et al.

No. 523-N.

District Court, D. Kansas, Second Division.

November 5, 1928.

Al F. Williams, U. S. Dist. Atty., and Alton H. Skinner, Asst. Dist. Atty., both of Topeka, Kan.

Hal M. Black, Arnold Todd, and Clyde Hudson, all of Wichita, Kan., for defendants.

McDERMOTT, District Judge.

This is an action to enjoin a nuisance under sections 21 and 22 of the National Prohibition Act (27 USCA §§ 33, 34). A motion to dismiss has been filed, on the grounds that the bill is sworn to on information and belief; that there is an adequate remedy at law; that the bill does not state facts sufficient to justify the relief sought. The evidence has been taken and the entire matter submitted to the court for decision on the merits. The owner of the property, Mr. J. W. Craig, has intervened. Since the taking of the proof, any question as to the verification of the bill is of no importance.

From the proofs it satisfactorily appears: J. W. Craig is the owner of 25 acres of ground a short distance from the city of Wichita. Some time in 1927 this land was leased to one Morris for $75 a month, the lease containing the express provision that the lessee should carry on no business which was contrary to the laws of the state or the United States. The defendants, James Stiff and May Stiff, operated a public eating house on the premises, which was ostensibly for the purpose of service of chicken dinners. Elaborate precautions were taken by the tenant to see that only properly identified guests might partake of these chicken dinners. A steel fence seven feet high, built with a projection on the top of it to prevent any one climbing it, together with a locked gate, was constructed, so that no passing tourist, without proper credentials, might partake of the fare offered. In December of 1927 the place was raided, and intoxicating liquor was found; prior to that time the place had been raided many times, without success, by the sheriff of Sedgwick county. Mr. Craig's attention was called to a newspaper report in 1927, stating that his property was being used for illicit purposes, describing the location and giving a picture of the premises. He stated that his attention was called to these raids and these newspaper reports in 1927, and that he strove diligently to find out the truth about the matter, although he never went to the place but once. He said that he believed it was primarily the duty of the public officials to detect crime on his place. Notwithstanding these circumstances, when the lease expired in March of 1928, he renewed it to the same tenant, but doubled the rent, and since that time has been collecting $150 a month rental. He said he knew of this rather unusual fence, but that his tenant had told him it was erected for the purpose of keeping out hi-jackers.

In August of 1928 investigators went to the premises and asked for liquor, but were told by the keeper of the gate that they would have to see some one in the house about that. One of the men in the house came out and told them that they had beer and whisky there, but the town was so full of undercover men they could take no chances without further identification. The investigators never did get into the premises, but stopped a departing guest, who as a favor to them returned and brought them some alcohol. Seven cars were seen coming out of the gate at 5 o'clock in the morning. A little later officers armed with a search warrant went to the premises and demanded admission, whereupon the defendant, Mrs. Stiff, turned and ran for the house. The gate was broken down, and the lady was stopped as she was engaged in the business of pouring liquor down the sink. Mr. Stiff, the defendant, stated to the officers that he was not primarily engaged in the liquor business; that it was primarily a gambling place, and they kept just enough liquor to keep the game going. Waiters' checks were found with marks indicating the sales of liquor, and Mr. Stiff acknowledged it. Mr. Stiff did not take the stand.

Considering all of the circumstances, and particularly the physical surroundings, the precautions against the entrance of those without credentials, the permanent character of the establishment, and the entire record, it is quite impossible to draw any other conclusion, except that this was a roadhouse that was regularly engaged in the business of the violation of the National Prohibitory Law.

While the knowledge of the owner is of no importance, as the proceeding is one against the property, and not against individuals Engler v. U. S., 25 F.(2d) 37 (8th C. C. A.), yet it is not difficult to conclude that the owner had such reasonable grounds to suspicion the violation of the law as to charge him with notice. The erection of expensive improvements, including the steel fence, the continual raiding of the property, the newspaper accounts, and the other matters, should have sufficiently challenged his attention to the situation as to have induced him to do more than renew the lease at double the already high rental, a circumstance to be considered in itself.

The argument advanced that a civil remedy for injunction will not lie where there is an adequate remedy at law, or until there has been a prior conviction, has been answered many times by the courts. The criminal sections of the National Prohibitory Law are for the purpose of punishing offenses that have occurred. The civil remedy of injunction is for the purpose of preventing violations of the law that are apt to occur in the future. In a criminal action, the question is: Did the defendant do the thing charged? Under the civil action for injunction the question is: Is there a reasonable probability that, unless enjoined, the premises will be used in the future for unlawful purposes?

No hard and fast rule can be laid down for the determination of this question of fact. As has been said by many courts, that question may be answered in the affirmative by evidence of one sale, or by evidence of no sale, where the circumstances are such that a reasonable man must conclude that an unlawful business is being carried on. On the other hand, it seems quite clear that there might be evidence of a dozen sales, for example, by an itinerant bootlegger in a...