United States v. Butler

• Citation: 278 F. 677
• Parties: UNITED STATES v. BUTLER et al.
• Decision Date: 04 January 1922
• Court: U.S. District Court — Eastern District of New York

278 F. 677

UNITED STATES v. BUTLER et al.

United States District Court, E.D. New York.

January 4, 1922

Leroy W. Ross, U.S. Atty., of Brooklyn, N.Y.

Alexander S. Drescher, of Brooklyn, N.Y. (Isidore Oshlag of Brooklyn N.Y., on the brief), for defendant Butler.

Liebman Blumenthal & Levy, of New York City (Walter H. Liebman and David Levy, both of New York City, of counsel), for defendant S. Liebmann's Sons Brewing Co.

GARVIN District Judge.

Each of the defendants moves to dismiss the bill of complaint upon the ground that no cause of action and that no facts sufficient to entitle plaintiff to the relief demanded appear in the bill. The action is brought pursuant to the provisions of section 22, title 2, of the National Prohibition Act (41 Stat. 314), which reads 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.' The plaintiff prays that the court abate the public and common nuisance on the premises referred to in the bill of complaint, close same, take possession of all liquor, fixtures, and other property now used on said premises in connection with the violation of law constituting said nuisance, direct the destruction of all intoxicating liquor on the premises, or its delivery to a department or agency of the United States government, direct that the premises shall not be occupied or used for one year after the date of the decree, or, if the court permits it to be used, only upon giving security that intoxicating liquor shall not thereafter be manufactured sold, bartered, kept, or otherwise disposed of therein or thereon, and that the defendants pay all costs, fines, and damages that may be assessed for any violation of title 2 of the National Prohibition Act upon said property. Plaintiff also asks for a temporary injunction, pending final determination of the issues, restraining all persons occupying the premises from conducting or continuing a nuisance thereupon.

1. The defendants claim that the allegation in the bill of complaint, 'that the defendants are maintaining and conducting a common nuisance on the premises, described herein, in that intoxicating liquor containing more than one-half of 1 per cent. of alcohol by volume has been and is being sold and kept for sale in the premises,' is a conclusion of law only, and is not sufficient, in the absence of any specific allegation of fact. They refer particularly to the decision in the case of United States v. Cohen (D.C....