United States v. Ward

• Citation: 6 F.2d 182
• Decision Date: 08 June 1925
• Docket Number: No. 3281.,3281.
• Parties: UNITED STATES v. WARD et al.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

6 F.2d 182 (1925)

UNITED STATES v. WARD et al.

No. 3281.

Circuit Court of Appeals, Third Circuit.

June 8, 1925.

George W. Coles, U. S. Atty., and William J. Brady, both of Philadelphia, Pa., for the United States.

Ladner & Ladner, of Philadelphia, Pa., for appellees.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY, Circuit Judge.

This appeal is from a decree of the District Court dismissing a bill which was filed by the United States under Section 22 of Title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½k) to enjoin the respondents from maintaining a nuisance by the sale of liquor. Briefly stated, the facts are these: The United States, in its bill, charged that on premises in Philadelphia formerly equipped and maintained as a saloon, the respondent, Ward, on three named dates, sold intoxicating liquor to prohibition agents; it averred that the place was a common nuisance within the meaning of the National Prohibition Act, and that, in its belief, the respondents would continue to keep, maintain and use the premises for the sale of liquor in violation of the Act; and, finally, it prayed that a decree be entered, first, commanding the marshal "to abate the said common nuisance now existing on said premises" by taking possession thereof and destroying all liquor found thereon, and, second, perpetually enjoining the respondents, the proprietor and owner respectively, from keeping and selling any intoxicating liquors any place within the Eastern District of Pennsylvania.

At the preliminary hearing the court granted the customary preliminary injunction. At the final hearing, the court, on the evidence taken at the preliminary hearing, entered a decree dissolving the preliminary injunction and dismissing the bill.

On this appeal the Government charges error in the decree based on either a lack of judicial discretion or an abuse of judicial discretion by the court in dismissing the bill. It frames the question involved in these words:

"Where, in an action brought under Section 22, Title 2, of the National Prohibition Act, to abate a nuisance upon premises conducted as a saloon, uncontradicted evidence is received of sales of whisky upon said premises upon three separate days, in violation of the National Prohibition Act, is it within the discretion of the court to deny the relief prayed and to dismiss the bill on the ground that the Government has failed to prove the existence of the nuisance alleged?"

We cannot take seriously the contention that a trial judge, sitting as chancellor in a purely equity proceeding, is without power to conclude that a complainant has not proved the averments of his bill and that, accordingly, the trial judge is without discretion to dismiss the bill. Of course, he has such discretion. A trial judge may, however, abuse that discretion, and when this is charged an appellate court will, within familiar limitations, review his action. We shall therefore confine our review of this decree to the question whether, in entering the decree, the trial judge abused his discretion.

This, as we have said, is a proceeding in equity instituted under authority of Section 22 of Title 2 of the National Prohibition Act. In order effectively to carry out its policy, the statute, in addition to criminal actions, affords the Government a civil action to abate and enjoin the continuance of a nuisance maintained for keeping and selling intoxicating liquors, to be brought in any court having jurisdiction to hear and determine equity cases and there to be tried as equity cases usually are tried. With this in mind the Congress provided that:

"If it is made to appear by affidavits or otherwise, to the satisfaction of the court, * * * 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."

With this provision before him, the learned trial judge shortly after the preliminary hearing entered a decree in which he stated that he was "satisfied that the National Prohibition Act was violated by the occupant of the said premises as set forth in the bill, and that a common nuisance was maintained upon the said premises as alleged" and then granted a preliminary injunction against the respondents. At the final hearing he did not find that a common nuisance existed or that a continuous violation of the law was threatened. Accordingly, he dismissed the bill. The Government maintains that having once been "satisfied" of the existence of the nuisance, the judge should have found a nuisance on the final...