United States v. Butler Hotel Co.
| Decision Date | 08 April 1929 |
| Docket Number | No. 636.,636. |
| Citation | 32 F.2d 324 |
| Parties | UNITED STATES v. BUTLER HOTEL CO., Inc., et al. |
| Court | U.S. District Court — Western District of Washington |
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Anthony Savage, U. S. Atty., and Paul D. Coles and Tom De Wolfe, Asst. U. S. Attys., all of Seattle, Wash.
George F. Vanderveer, of Seattle, Wash., for defendants.
NETERER, District Judge (after stating the facts as above).
This is an action in rem. The purpose of the Eighteenth Amendment is to prevent the use of intoxicating liquor as a beverage. It is not self-executing, but is given vitality by the National Prohibition Act. The provisions of this act are to be liberally construed, "to the end that the use of intoxicating liquor as a beverage may be prevented." Section 12, 27 USCA. The possession of liquor by a person not legally permitted to have it is prima facie evidence that such liquor is kept for sale or barter. Section 50, 27 USCA. There is no contention that any of the liquor in issue in the possession of patrons or the bottles in the cupboard and the cashier's desk in this room, or waiters' closet, was lawfully possessed.
"Any room * * * where intoxicating liquor is * * * sold, kept, or bartered * * * is * * * a common nuisance." Section 33, title 27 USCA. And upon proof sustaining the charge the court must abate it, and may order the room closed for one year. Section 34, 27 USCA. Did the customary and habitual transportation of liquor to the dining room, and the consumption thereof in the room by the persons who possessed it, and by those to whom it was furnished by them, and the bottles of liquor in the cupboard and in the cashier's desk, and one bottle in the waiters' coat in the waiters' dressing room, constitute a keeping, within the provisions of section 33, supra, and the Rose Room a nuisance?
The contention of the defendant that the room was patronized by "high-class" and "some of the best people in the city" is immaterial. The law is no respecter of persons. It is immaterial whether liquor was taken there "in large silver flasks" by men in full dress, or in bottles by men wearing corduroys, or carried in demijohns by men wearing overalls, or vice versa. Clothes and containers, or social status, are immaterial.
It may be concluded from the evidence that the management of the hotel endeavored to conduct a "high-class" place for entertainment, where intoxicating liquor possessed by persons could be brought and by them "furnished" to others for consumption in the Rose Room, and that it did exercise diligence on special occasions in keeping intoxicated persons therefrom. The recognized necessity for employing detectives or guards at the entrances to keep out intoxicated persons strongly emphasizes the notoriety the room enjoyed after the regular dinner hour.
"Kept" (imp. and p. p. of "keep," Webster's Int. Dict.), as used, is significant. The section does not require the management to keep the liquor, but if it was "kept" by any person in this room, in violation of the section, supra, the room offended. Nor is knowledge of the owner necessary. United States v. Studio Club (D. C.) 12 F.(2d) 462; United States v. Auto City Brewing Co. et al. (D. C.) 5 F.(2d) 362; United States v. Boynton (D. C.) 297 F. 261; United States v. Marhold (D. C.) 18 F.(2d) 779; Farrell v. United States (C. C. A.) 21 F.(2d) 318; Engler v. United States (C. C. A.) 25 F.(2d) 37. But in this case knowledge is apparent. It is shown beyond question that liquor was possessed in this room by numerous patrons, and four bottles found in the cupboard and desk in the room, and one bottle in the waiters' room off the Rose Room, and that patrons habitually brought liquor to this room, and it was kept by such persons by permission of the management, or at least such conduct as gave the place a general reputation as a place where intoxicating liquor could be taken and consumed, and be "furnished" for immediate consumption to members of parties who were entertained.
The evidence discloses that by conduct the management and patrons created a pecuniary beneficial and profitable relation having a commercial aspect as to the hotel, and convenience and pleasure to the patrons and friends, who desired to consume liquor. One thing was given for another, as in barter, or a privilege was granted for money, as in sale. The hotel had the room and "furnishings," etc. The patrons had, or purchased, the liquor, and had friends they desired to serve. By general repute there was open invitation that intoxicating liquor might be brought and kept by the patrons in this room to be consumed, and "furnished" to guests for consumption in the room by paying a "cover charge" of $1.25 on Saturday nights, $1 on Thursday nights, and 75 cents on other nights, in addition to paying for service of ginger ale, "white rock," etc., and cracked ice. There was a pecuniary benefit, and, no doubt, profit to the hotel, in the payments made, and a satisfaction to the patrons for permission to keep liquor for immediate consumption, and "furnish" liquor to guests in this room for like purpose.
The hotel company, to rebut the element of profit from liquid sale and ice, presents a statement of income from sales of food and fountain (liquids) for three months for 1925, 1927, 1928, and four months for 1926, totaling $153,852.21 for food, and $30,307.85 for fountain. The per cent. for food, 83.52; and fountain, 16.48. The evidence of the plaintiff's witnesses, however, was limited to after 11 o'clock p. m., when the service was nearly exclusively cracked ice and ginger ale, etc., and little, if any, food served. The statement includes luncheon and dinner for the full days, and the evidence shows that many are served in this dining room during the lunch and dinner hours with food, but the ginger ale, etc., and cracked ice, was not in demand until after the dinner hour, when it was almost exclusively served. The statement is therefore of no service.
The keeping of the liquor in the room for the disclosed purposes was unlawful, and the possession prima facie evidence that it was kept for sale, and some of it was delivered to others. May the delivery under the disclosures in the record be conclusive of sale as a consummation of the purpose for which it was kept, in the absence of evidence to the contrary, under the liberal interpretation required by the Congress? But whether so considered or not, and though kept for a brief time extending from less than one hour to two or three hours, the transaction has a commercial aspect, and liquor kept as disclosed, in this room, is denounced by section 33, supra.
In Street v. Lincoln Safe-Dep. Co., 254 U. S. 88, 41 S. Ct. 31, 65 L. Ed. 151, 10 A. L. R. 1548, the liquor was lawfully possessed, and that the conclusion there reached has no application to the facts as here disclosed, is clearly indicated by the refusal of the Supreme Court to review Fritzel v. United States, 275 U. S. 532, 48 S. Ct. 29, 72 L. Ed. 411.
"Kept," in its relation here, does not imply time, as contended by the defense. Time is not essence of the offense. It may emphasize the act. The disclosed possession is keeping for the purpose of delivering it to others for consumption, for which a pecuniary consideration is paid to the management as "cover charge," and service of cracked ice in glasses, for which payment is made, is no doubt clearly within the inhibition, and was so held in Fritzel v. United States (C. C. A.) 17 F.(2d) 965, and this holding was approved by the Supreme Court in 275 U. S. 532, 48 S....
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