United States v. Boynton

• Decision Date: 11 March 1924
• Docket Number: 583.
• Citation: 297 F. 261
• Parties: UNITED STATES v. BOYNTON et al. (ALLAN et al., Interveners).
• Court: U.S. District Court — Eastern District of Michigan

297 F. 261

UNITED STATES v. BOYNTON et al. (ALLAN et al., Interveners).

No. 583.

United States District Court, E.D. Michigan, Southern Division.

March 11, 1924

Delos G. Smith, U.S. Atty., of Detroit, Mich.

Percy W. Grose, of Detroit, Mich., for defendants George Boynton and Mary Boynton.

Wicker Quaine & Groat, of Detroit, Mich., for defendant Van Dall.

Trowbridge Lewis & Watkins, of Detroit, Mich., for defendant Voigt Land Co.

Stevenson Carpenter, Butzel & Backus, of Detroit, Mich., for defendant and cross-plaintiff Allan and intervening defendants and cross-plaintiffs Allan, Security Trust Company, and Malcolmson.

TUTTLE District Judge.

This suit in equity is now pending on a bill of complaint filed by the United States to enjoin and abate an alleged public nuisance under the National Prohibition Act (Comp. St. Ann Supp. 1923, Sec. 10138 1/4 et seq.), on answers filed by certain defendants herein, and on a petition filed by certain persons (hereinafter called the interveners) asking that they be permitted to intervene as defendants and as cross-plaintiffs for the purpose of seeking affirmative relief against other defendants.

The statutory provisions involved are sections 21, 22, and 23 of title 2 of the National Prohibition Act (Act Oct. 28, 1919, c. 85, 41 Statutes at Large, 314 (Comp. St. Ann. Supp. 1923, Secs. 10138 1/2jj, 10138 1/2k, 10138 1/2l)). Section 21 provides in part as follows:

'Any room, house, building, boat, vehicle, structure, or place where intoxicating liquor is manufactured, sold, kept, or bartered in violation of this title, and all intoxicating liquor and property kept and used in maintaining the same, is hereby declared to be a common nuisance, and any person who maintains such a common nuisance shall be guilty of a misdemeanor and upon convictions thereof shall be' punished as provided in said section.

Section 22 is as follows:

'An action to enjoin any nuisance defined in this title may be brought in the name of the United States by the Attorney General of the United States or by any United States attorney or any prosecuting attorney of any State or any subdivision thereof or by the commissioner or his deputies or assistants. Such action shall be brought and tried as an action in equity and may be brought in any court having jurisdiction to hear and determine equity cases. If it is made to appear by affidavits or otherwise, to the satisfaction of the court, or judge in vacation, that such nuisance exists, a temporary writ of injunction shall forthwith issue restraining the defendant from conducting or permitting the continuance of such nuisance until the conclusion of the trial. If a temporary injunction is prayed for, the court may issue an order restraining the defendant and all other persons from removing or in any way interfering with the liquor or fixtures, or other things used in connection with the violation of this Act constituting such nuisance. No bond shall be required in instituting such proceedings. It shall not be necessary for the court to find the property involved was being unlawfully used as aforesaid at the time of the hearing, but on finding that the material allegations of the petition are true, the court shall order that no liquors shall be manufactured, sold, bartered, or stored in such room, house, building, boat, vehicle, structure, or place, or any part thereof. And upon judgment of the court ordering such nuisance to be abated, the court may order that the room, house, building, structure, boat, vehicle, or place shall not be occupied or used for one year thereafter; but the court may, in its discretion, permit it to be occupied or used if the owner, lessee, tenant, or occupant thereof shall give bond with sufficient surety, to be approved by the court making the order, in the penal and liquidated sum of not less than $500 nor more than $1,000, payable to the United States, and conditioned that intoxicating liquor will not thereafter be manufactured, sold, bartered, kept, or otherwise disposed of therein or thereon, and that he will pay all fines, costs, and damages that may be assessed for any violation of this title upon said property.'

Section 23, in so far as it is here involved, provides that:

'Any violation of this title upon any leased premises by the lessee or occupant thereof shall, at the option of the lessor, work a forfeiture of the lease.'

The bill of complaint alleges that it is filed in the name of the United States, by the United States attorney for this district, pursuant to section 22 of title 2 of the National Prohibition Act, for the purpose of enjoining and abating a certain nuisance as defined in section 21 of said title, alleged to be existing upon certain premises consisting of an 'alleged soft drink parlor,' located in a certain specifically described building in the city of Detroit, in said district; that defendants George and Mary Boynton own the fee title to said premises; that the defendants Allan and Security Trust Company, trustee, are the lessees of the said premises under a 99-year lease from said first-mentioned defendants; that defendants Voigt Land Company and Detroit Beverage Company also hold leasehold interests in said premises, the terms of which are unknown to plaintiff; that defendant Van Dall is the proprietor of said alleged soft drink parlor, and occupies said premises as a tenant of said defendant Voigt Land Company; that said premises are used and maintained as a place where intoxicating liquors, as defined in said National Prohibition Act, are habitually, continually, and recurrently sold, kept, and bartered for beverage purposes in violation of said Act by the defendants mentioned; and that unless restrained by the injunction of this court the said defendants will continue to maintain and use said premises as a place where intoxicating liquor is manufactured, sold, kept, or bartered in violation of said National Prohibition Act, and as a common and public nuisance as defined in said act. The bill prays that each of the defendants be directed to answer the bill; that all of said defendants be perpetually enjoined from using, maintaining, and assisting in using and maintaining said premises as a place where intoxicating liquor is manufactured, sold, kept, or bartered in violation of the National Prohibition Act; that process be issued by this court to the United States marshal, commanding him to abate such public and common nuisance, and for that purpose to take possession of said premises, and to close the same, and to take possession of all the said fixtures and other property now used on said premises in connection with the violation constituting said nuisance, and to remove the same to a place of safe-keeping to abide the further order of this court; and that a decree be entered by this court directing that no intoxicating liquor shall be manufactured, sold, bartered, or kept on said premises, and that 'said premises shall not be occupied or used for one year after the date of said decree.'

Defendant Van Dall has filed an answer, in which he admits that he is the proprietor of a soft drink parlor located at the premises in question, but denies that any nuisance exists upon said premises. He also denies that plaintiff is entitled to any relief in a court of equity, as it has a complete and adequate remedy at law for any violation of the provisions of the National Prohibition Act.

Defendant Voigt Land Company has filed an answer in which it avers that it is lessee of said premises under lease (hereinafter referred to as a 15-year lease) from defendant Mary Boynton, dated February 5, 1912, and expiring May 1, 1927; that it has leased said premises to the defendant Detroit Beverage Company by a lease dated March 30, 1912, and expiring April 30, 1927; that said Detroit Beverage Company leased said premises to defendant Van Dall, who occupies it as a soft drink parlor as a subtenant under said defendant Detroit Beverage Company; that after making said 15-year lease to it (the Voigt Land Company), its lessor (said defendant Boynton) leased said premises to the predecessor in title of the interveners by a 99-year lease, dated December 20, 1922, subject to the rights of said defendant Voigt Land Company (and of its sublessees and assigns) under its said 15-year lease; that it has no knowledge concerning the alleged nuisance referred to in said bill of complaint, and that neither it nor its subtenant, said Detroit Beverage Company, has knowingly done or suffered any other person to do any unlawful act upon said premises, but that they desire to co-operate with the government in abating any nuisance which may exist thereon; and that said Detroit Beverage Company (subtenant under said Voigt Land Company) proposes to promptly exercise its election to terminate the leasehold rights of defendant Van Dall, if the acts charged in the bill of complaint are found by this court to be true, so that the rights of all persons interested may be properly protected.

The interveners, in their intervening petition already mentioned (which is also in the nature of an answer and cross-complaint), allege that they are the owners of the aforesaid 99-year lease; that at the time of the making of said lease said premises were subject to the aforesaid 15-year lease from defendants Boynton to defendant Voigt Land Company; that by reason of the covenants and conditions of the said 99-year lease and by operation of law the interveners have become the landlords of said premises, and the defendant Voigt Land Company their tenant, paying them rent as such; that by reason of the terms and conditions of said 99-year lease said interveners have succeeded to all the right, title, and interest of defendants Boynton in said...