United States v. Cohen

• Decision Date: 28 October 1920
• Docket Number: 5454.
• Citation: 268 F. 420
• Parties: UNITED STATES v. COHEN.
• Court: U.S. District Court — Eastern District of Missouri

268 F. 420

UNITED STATES v. COHEN.

No. 5454.

United States District Court, E.D. Missouri, Eastern Division.

October 28, 1920

[Copyrighted Material Omitted]

Vance J. Higgs, Sp. Asst. Atty. Gen., for the United States.

McCarthy Morris & Zachritz, of St. Louis, Mo., for defendant.

FARIS District Judge.

The United States filed its bill under the provisions of section 22 of the Volstead Act (41 Stat. 314) to enjoin defendant from maintaining a common nuisance on his premises by the illegal sale thereat of intoxicating liquors, and by unlawfully keeping for sale at and on such premises liquors which contain alcohol in quantities forbidden by that act.

Defendant moved to dismiss plaintiff's bill on divers grounds. Among those demanding notice are: (a) That no cause of action, and no facts sufficient to entitle plaintiff to relief in equity, are set out in the bill; (b) because the supporting affidavits do not sustain the allegations of the bill; (c) because the provisions of the Volstead Act, relied on by plaintiff, invade the police powers of the states, and that the provisions relied on are not warranted by or within the purview of the language of the Eighteenth Amendment; (d) because the bill fails to allege an interstate sale or transportation, whereby alone a federal court could obtain jurisdiction; and (e) because both sections 21 and 22 of the Volstead Act are unconstitutional, for that they deprive defendant of his property without due process of law, and deprive him of the right of trial by a jury of his peers.

Section 21 of the Volstead Act defines the common nuisance, the enjoining of which in a court of equity is provided for by section 22 of the act. This statutory definition, so far as concerns the facts before me, is:

'Any room, house, * * * place where intoxicating liquor is * * * sold, kept or bartered in violation of this title * * * is hereby declared to be a common nuisance.'

The above definition does not specifically include the notion of a continuous or a recurrent violation. Neither does it specifically exclude this feature. The common-law definition, without always specifically setting out the elements of a continuousness or recurrence of the things, facts, or acts which constitute the nuisance, yet connotes this notion. Generally, at common law, a nuisance is a wrong arising from an unreasonable or unlawful use of a house, premises, place, or property, to the discomfort, annoyance, inconvenience, or damage of another. Pritchard v. Edison, etc., co., 92 A.D. 178, 87 N.Y.Supp. 225.

The word 'nuisance' has a well-defined meaning in the law, and a thing cannot be declared a nuisance by statute, and abated as such, when in fact it is obviously not a nuisance. The rule laid down by the Supreme Court of the United States upon this point is that--

'While the Legislature has no right arbitrarily to declare that to be a nuisance which is clearly not so, a good deal must be left to its discretion in that regard, and if the object to be accomplished is conducive to the public interests, it may exercise a large liberty of choice in the means employed. ' Lawton v. Steele, 152 U.S.loc.cit. 140, 14 Sup.Ct. 502, 38 L.Ed. 385.

This is clearly the farthest limits of the rule, so far as concerns the extent to which the Legislature may encroach on private rights, in the destruction, abatement, or damage of private property as a public nuisance. Further encroachment is forbidden by those provisions of the organic law having reference to the constitutional guaranty of due process of law and forbidding the taking of private property for public use without just compensation. Lawton v. Steele, supra; Austin v. Murray, 16 Pick.(Mass.) 121; Slaughterhouse Cases, 16 Wall. 36, 21 L.Ed. 394; Brown v. Perkins, 12 Gray (Mass.) 89.

The extent of the encroachment upon the rights and property of the individual, permissible to the law-making bodies in the valid exercise of the police power, has been always a most strongly mooted question. Those urging broader constructions have won much ground, but it has been surrendered grudgingly. Generally, in the valid exercise of the police power are included all things essential to the conservation of the public safety, public health, and public morals. But this sweeping general rule is modified by a consideration of the rights of the private individual. Hedging it about is the consideration that--

'To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The Legislature may not, under the guise of protecting public interests, arbitrarily interfere with private business, or impose unusual or unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts. ' Lawton v. Steele, 152 U.S.loc.cit. 137, 14 Sup.Ct. 501, 38 L.Ed. 385.

The Congress, therefore, must be deemed to have used the word in its usual and ordinary legal significance, and to have had in mind that it could not pass a law which had the effect to wipe out the constitutional rights of the citizen in private property.

The idea of either continuousness of existence of the things, or facts, or acts, which constitute the alleged nuisance, or the recurrence of such acts, so as to create damage, annoyance, discomfort, or inconvenience, is connoted by the presence of the word 'use' in the common-law definition. Discussing a very similar statute of the state of Kansas, the Supreme Court of the United States said:

'The statute is prospective in its operation; that is, it does not put the brand of a common nuisance upon any place, unless, after its passage, that place is kept and maintained for purposes declared by the Legislature to be injurious to the community. Nor is the court required to adjudge any place to be a common nuisance simply because it is charged by the state to be such. It must first find it to be of that character; that is, must ascertain, in some legal mode, whether since the statute was passed the place in question has been, or is being, so used as to make it a common nuisance. ' Mugler v. Kansas, 123 U.S.loc.cit. 672, 8 Sup.Ct. 303, 31 L.Ed. 205.

I conclude that Congress, by the use of the words 'sold, kept, or bartered' in violation of law, meant either habitually, or continuously, or recurrently so sold, kept, or bartered. I do not think that a single sale, without more, and with no evidence of the continuation or recurrence of law violation, or of facts strongly indicating either habitual sales, or long-continued violations, or such a recurrence of unlawful acts or sales as to colorably indicate that the criminal prosecutions and penalties provided by other parts of the act are inadequate to cope with the situation, would constitute a nuisance or warrant the interference of a court of equity by injunction; for in such case it is not the crime of selling liquor, or selling a single drink of liquor, by a given person, at a given place, which constitutes the nuisance, but it is the maintenance and use of the room, house, or place as a situs for the doing thereat of unlawful or criminal acts, which constitute the nuisance.

If the Volstead Act is construed to mean that a single sale is sufficient to constitute a nuisance, I should seriously question its validity, for upon such a view we are met by the rule which forbids equity taking jurisdiction where an adequate remedy at law exists, as also the rule that even Congress may not say a thing is a common nuisance, when in fact it is not. For a single sale, without more, and without other overt acts, can be punished by a fine or imprisonment, and a subsequent sale by both such fine and imprisonment. Such remedy was seemingly deemed sufficient, or at least sufficient punishment; otherwise, Congress would have made the penalty more severe. It is fairly well settled that equity will not enjoin the commission of a crime.

The bill before me does not aver that defendant has ever been either prosecuted, or convicted, for making illegal sales of liquor at the premises named in the bill, or at any other place or premises. Neither does it aver, or sufficiently aver, facts meet to constitute a nuisance at common law. It may be that conviction and punishment therefor, as provided elsewhere in the act, would be wholly adequate to stop the alleged unlawful acts of defendant without a resort to a court of equity. Besides, section 21, supra, which defines what shall constitute a common nuisance, also provides:

'That any person who maintains such a common nuisance shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than $1,000 or be imprisoned not more than one year, or both.'

In effect, the...