United States v. Reisenweber, 138.

• Decision Date: 18 January 1923
• Docket Number: 138.
• Citation: 288 F. 520
• Parties: UNITED STATES v. REISENWEBER et al.
• Court: U.S. Court of Appeals — Second Circuit

288 F. 520

UNITED STATES v. REISENWEBER et al.

No. 138.

United States Court of Appeals, Second Circuit.

January 18, 1923

Griffiths Sarfaty & Content, of New York City (Max D. Steuer, Charles H. Griffiths, and Elijah N. Zoline, all of New York City, of counsel), for appellants.

William Hayward, U.S. Atty., of New York City (John Holley Clark Jr., and Victor House, Asst. U.S. Atty., both of New York City, of counsel), for the United States.

Before ROGERS and HOUGH, Circuit Judges, and LEARNED HAND, District Judge.

ROGERS Circuit Judge.

The United States filed the bill of complaint in this suit pursuant to authority granted in section 22, title II, of the Act of Congress of October 28, 1919, known as the 'National Prohibition Act' (41 Stat.c. 85, pp. 305 314). The suit was brought for the purpose of enjoining and abating what the bill alleged to be 'a certain public and common nuisance' as defined in section 21, title II, of the act of Congress above referred to. The section may be found in the margin. ^[1]

The complaint alleged that the premises at Nos. 981, 983, and 985 Eighth avenue, in the borough of Manhattan and city of New York, were used and maintained as a place where intoxicating liquors are habitually, continually, and recurrently sold kept, and bartered for beverage purposes in volation of the provisions of title II of the act. The complaint further alleged, on information and belief, that unless restrained and forbidden by injunction the defendants would continue in the future to keep, maintain, and use the premises as a place where intoxicating liquor is manufactured, sold, kept, or bartered in violation of title II of the act, and as a common and public nuisance as defined in section 21 of title II.

It asked that the defendants be perpetually enjoined and restrained from using, maintaining, and assisting in using and maintaining the said premises as a place where intoxicating liquor is manufactured, sold, kept, or bartered in violation of title II of the act. It further prayed that the court would issue its process, directing the marshal for the district summarily to abate the said public and common nuisances then existing upon the said premises, and for that purpose to take possession of all liquor, fixtures, and other property used on the premises, and to remove the same to a place of safe-keeping to abide the further order of the court.

It further prayed that the court would enter a decree directing that no intoxicating liquor as defined in title II of the act should be manufactured, sold, bartered, or stored in the premises or any part thereof, and that said premises should not be occupied or used for one year after the date of said decree. It also asked for a decree directing that all intoxicating liquor then on the premises should be destroyed, or, upon the application of the United States attorney, should be delivered to such department as he should designate, for medicinal, mechanical, or scientific uses, or that the same should be sold at private sale for such purposes to any person having a permit to purchase liquor, and that the proceeds thereof be covered into the treasury of the United States as provided in section 27 of title II of the act.

The court, on July 6, 1922, adjudged that Reisenweber's Restaurant, occupying the two upper floors of the premises on Eighth avenue already mentioned, were a common nuisance, and an injunction issued restraining the defendants, their servants, agents, and employees, from manufacturing, selling, bartering, or storing in the premises, or any part thereof, any liquor containing one-half of 1 per cent. or more of alcohol by volume. It decreed that Reisenweber's Restaurant be not occupied or used for one year from the date of the order, and it directed the marshal to lock and seal all of the entrances and exits to the restaurant, and to prevent for the period of one year from the going into effect of the decree the occupation or use of the premises for any purpose whatever.

The court, however, suspended for six months the operation of that part of the decree providing for nonoccupation or use for a period of one year, provided the Restaurant Company should give a bond in the penal and liquidated sum of $1,000 and conditioned that intoxicating liquor would not thereafter be manufactured, sold, bartered, kept, or otherwise disposed of in the premises, and that it would pay all fines, costs, and damages that might be assessed for any violation upon said property and any provision of title II of the act. And the court extended the term for six months, during which time the defendants, or any of them, upon proof that there had not been any violation of the terms of the decree, were given the right to apply to the court for a modification of the decree 'in such manner as may be proper.'

In September, 1922, application was made to the District Court for an order to show cause why the order of July 6, 1922, should not be modified, by striking from the order the provision thereof which suspends for six months the provision of said decree adjudging that the restaurant known as Reisenweber's, located in premises described in said decree, be not occupied or used for one year, and why said decree should not be further modified, so that it might order and direct the immediate locking and sealing of all the entrances and exits to the said restaurant, for the purpose of preventing for the period of one year the occupation or use of the said premises for any purposes whatsoever, and for such other relief as might be proper. This order to show cause was based upon the allegation that the parties restrained had been guilty of violating the order, and after hearing upon the order to show cause, and after proof had been taken in open court, the judge in an opinion filed on October 11, 1922, stated that he was convinced that there had been a violation of the decree, and because of such violation he granted the relief which the government asked, and struck from the original order the portion thereof above referred to.

Sections 21, 22, and 24 of title II, providing for the abatement of liquor nuisances by a suit in equity and the granting of an injunction, are not unconstitutional on the ground that the parties are deprived of their property without due process of law. Mugler v. Kansas, 123 U.S. 623, 8 Sup.Ct. 273, 31 L.Ed. 205; Lewinsohn v. United States (C.C.A.) 278 F. 421; Eilenbecker v. District Court, 134 U.S. 31, 10 Sup.Ct. 424, 33 L.Ed. 801; In re Chapman, 166 U.S. 661, 17 Sup.Ct. 677, 41 L.Ed. 1154. In the first of these cases the court said:

'As to the objection that the statute makes no provision for a jury trial in cases like this one, it is sufficient to say that such a mode of trial is not required in suits in equity brought to abate a public nuisance.'

The complaint charges that the defendants use the premises complained of as a common and public nuisance, contrary to the provisions of the Prohibition Act. A nuisance, in the common understanding, is anything which annoys, vexes, or harms; and a nuisance is said to be a public one, if it affects the rights enjoyed by citizens as part of the public. Knox v. New York, 55 Barb. (N.Y.) 404; King v. Morris, etc., R. Co., 18 N.J.Eq. 397. It has been defined as public when it affects a place where the public has a legal right to go, or where the public is likely to come within its influence. Burlington v. Stockwell, 5 Kan.App. 569, 47 P. 988. It has been laid down as a general rule that every unlawful use by a person of his own property in such a way as to cause material annoyance to other persons or to the public generally constitutes a nuisance. Baltimore, etc., R. Co. v. Fifth Baptist Church, 108 U.S. 317, 2 Sup.Ct. 719, 27 L.Ed. 739; Davis v. Sawyer, 133 Mass. 289, 43 Am.Rep. 519.

A place where intoxicating liquors are sold is not a nuisance at common law. Commonwealth v. McDonough, 13 Allen(Mass.) 571. Prior to St. 5 & 6 Eliz. 6 it was lawful in England for any one to keep an alehouse without a license; it being regarded as a legitimate means of livelihood, which any one was free to follow. If it was disorderly kept, it was indictable as a nuisance. Stephens v. Watson, 1 Salk. 45.

It is, however, within the province of the legislative body to prescribe what shall constitute a nuisance, and it may make that a nuisance which was not one at common law. See Moses v. United States, 16 App.D.C. 428, 50 L.R.A. 532; State v. Beardsley, 108 Iowa, 396, 79 N.W. 138; State v. Tower, 185 Mo. 79, 84 S.W. 10, 68 L.R.A. 402. And inasmuch as the Eighteenth Amendment makes the traffic in intoxicating liquors for beverage purposes unlawful, we do not doubt the constitutional power of Congress to enact that any 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,' as provided in section 21.

It is equally free from doubt that Congress has the constitutional power to authorize that an action to enjoin the nuisance can be brought in any court having jurisdiction to hear and determine equity cases, as provided in section 22. The power of courts of equity in proper cases to enjoin the continuance of an existing nuisance is well settled, although in the absence of a statute authorizing it there may be doubt whether an equity court has any jurisdiction over a public nuisance not violating property rights. See Attorney General v. Utica Insurance Co., 2 Johns.Ch. (N.Y.) 371.

The language of the section is that the action to be brought 'shall be brought and tried' as an action in equity and it appears that the defendants were arrested and indicted for...