United States v. Lot 29, Block 16, Highland Place, City of Omaha, Neb.

• Decision Date: 07 March 1924
• Docket Number: 573.
• Citation: 296 F. 729
• Parties: UNITED STATES v. LOT 29, BLOCK 16, HIGHLAND PLACE, CITY OF OMAHA, NEB., et al.
• Court: U.S. District Court — District of Nebraska

296 F. 729

UNITED STATES v. LOT 29, BLOCK 16, HIGHLAND PLACE, CITY OF OMAHA, NEB., et al.

No. 573.

United States District Court, D. Nebraska, Omaha Division.

March 7, 1924

E. D O'Sullivan (of Jamieson, O'Sullivan & Southard), of Omaha, Neb., and Geo. N. Mecham (of Rosewater & Mecham), of Omaha, Neb., for defendants.

James C. Kinsler, U.S. Atty., and George A. Keyser, Asst. U.S Atty., both of Omaha, Neb.

WOODROUGH District Judge.

The United States brings this action in equity to abate a liquor nuisance and for injunction and other relief, as provided under title 2, section 22, of the National Prohibition Act (Comp. St. Ann. Supp. 1923, Sec. 10138 1/2k). The allegations of the petition are simply in the language of the statute, to the effect that the defendants William Maier and Mary Maier as tenants of the defendant Mary Maier, are occupying and using the property involved as a place where intoxicating liquor is sold and kept for sale, and that the place and furniture therein are a public and common nuisance, for the reason that intoxicating liquor is there unlawfully kept for sale and sold, and there is a prayer for both temporary and permanent injunction against the alleged nuisance and the individual for the abatement of the nuisance, and for what is sometimes called a 'padlock' order, to prevent use or occupancy of the place for the period of a year and other relief.

The defendants filed a motion to dismiss for want of equity jurisdiction, and, in order to present the case more fully to the court, certain stipulations of fact were entered into at the hearing of the motion to dismiss, and certain statements of fact were made by the district attorney, and the facts so stipulated and stated are considered as though they were incorporated in the petition. From the facts so presented to the court in the petition itself, the stipulations, and the statements made, it appears that the property in question, although standing on the record as belonging to Mary Maier, is the homestead of the defendants, who are husband and wife, and who, appearing personally in the court, are persons past middle age, still occupying the home, from which their children have departed to set up homes for themselves. It appears that the defendant William Maier has, since the Prohibition Act went into effect, made and has unlawfully sold some wine, which was intoxicating liquor containing more than the prescribed percentage of alcohol by volume. It is also shown that upon the proof to that effect before the United States commissioner a search warrant was issued, and prohibition agents entered the home, removed the liquor, and arrested both the husband and wife. Information was duly filed against both husband and wife, but there was not sufficient evidence against the wife, who was accordingly dismissed out of the criminal action. The husband pleaded guilty to the criminal charge and sentence was imposed upon him.

At the same time there were a number of cases in a similar situation, so that the mechanical and stenographic work in the district attorney's office caused some time to be consumed before the present petition was filed; that is to say, some few days intervened between the arrest and the criminal proceedings before the present petition was presented to the court and a temporary restraining order issued thereon. It is admitted that, after the prohibition agents made the search, confiscation, and arrest, and up to the time of the hearing, there is no competent evidence of any other infraction of the Prohibition Law by the defendants, or either of them, or of any threat on the part of defendants to repeat any violation of the liquor law.

It is presented in the motion to dismiss that the court is without jurisdiction or power to proceed further in the matter for want of equity jurisdiction. Since the enactment of the National Prohibition Law very few serious contentions have been urged at the bar of this court against the exercise by the court of the equity and injunction powers conferred by the terms of the Prohibition Law, and this has been so largely because owners of property generally have co-operated with enforcement agents and prosecuting officers to suppress the liquor traffic on premises owned by them, and such owners of property have themselves favored and assisted in the eviction of lawless tenants, and have in many instances been willing that use of the property should be discontinued until guilty tenants are gotten rid of and other tenants secured, who could be reasonably expected to make lawful use of the premises. Many property owners have indicated that it was against their own interests that their properties should be used by lawless persons and for unlawful purposes.

But in this case an earnest attack is made upon the power of the court to grant any equity or injunctional relief whatever, and it is contended that the particular provisions of the Prohibition Act on which the government must rely are unconstitutional. It is urged that in the absence of an express statute the case here presented would not justify any relief in a court of equity, and that the statute attempting to confer such power upon the court of equity is unconstitutional. More particularly, the defendants contend that there is simply presented a case where a crime has been committed in the past, and the guilty party has been punished for his crime. In so far as his crime was of a continuing character, and so might be called a nuisance, the nuisance has been abated by the lawful seizure of the liquor and appliances, so that there is not at present any nuisance to be abated, or any threatened wrong to be enjoined against, or any ground of equity jurisdiction.

In the absence of a statute it would hardly be claimed that an equity court would have any power to issue an injunctional order, or indeed any kind of an order, in such a case as this. It seems to be an elemental principle that a court of equity should only abate such nuisances as are existing, or enjoin such as are shown to be actually threatened; but as to wrongs that are past and done the remedies would appear to be at law and not in equity. Counsel for the government do not seriously question this general limitation upon the power of equity courts, but in this case they stand squarely and have drawn their petition solely upon title 2, sections 22 and 23, of the National Prohibition Act, which provides:

'Sec. 22. 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 * * * 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.

'Sec. 23. That any person who shall, with intent to effect a sale of liquor, by himself, his employee, servant, or agent, for himself or any person, company or corporation, keep or carry around on his person, or in a vehicle, or other conveyance whatever, or leave in a place for another to secure, any liquor, or who shall travel to solicit, or solicit, or take, or accept orders for the sale, shipment, or delivery of liquor in violation of this title is guilty of a nuisance and may be restrained by injunction, temporary and permanent, from doing or continuing to do any of said acts or things.

'In such proceedings it shall not be necessary to show any intention on the part of the accused to continue such violations if the action is brought within sixty days following any such violation of the law.

'For removing and selling property in enforcing this act the officer shall be entitled to charge and receive the same fee as the sheriff of the county would receive for levying upon and selling property under execution, and for closing the premises and keeping them closed a reasonable sum shall be allowed

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