Woodward v. State
| Decision Date | 01 June 1911 |
| Citation | 55 So. 506,173 Ala. 7 |
| Parties | WOODWARD v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.
Bill by the State of Alabama, by its solicitor, against M. E Woodward, to abate a liquor nuisance. From decree overruling demurrer to bill on motion to dismiss, respondent appeals. Reversed and rendered.
The bill alleges that the solicitor of the Morgan law and equity court is informed and has probable cause for believing and does believe that M. E. Woodward, whose name is otherwise unknown to complainant, has in his possession or under his control or operates a room or place of business at No. 418 Bank street, in the city of Decatur, Ala., wherein he kept for sale, offered for sale, or keeps for sale and sells, the prohibited liquors mentioned in the Fuller bill, and that he has on divers days within the past 12 months kept said liquors for sale, offered them for sale, and sold quantities thereof, and allowed some of it to be drunk on the premises and has thus created and maintained the common nuisance or liquor nuisance in violation of law; that the above-named person is not a druggist, and did not keep a drug store at the above-mentioned place; and that the room where he operated was not in a building used exclusively for a dwelling house. The place is then described, and it is alleged that to effectually abate said described nuisance it is necessary to grant complainant a writ of injunction to restrain the same, and to grant a writ of seizure, etc. The affidavit attached is as follows: "Before me, T. W Wert, judge, personally appeared Richard N. McCulloch, who, being by me first duly sworn, did upon oath say that he was informed, and has probable cause to believe, and does believe that the statements contained in the foregoing bill are true."
Wert & Lynne and Kyle & Hutson, for appellant.
Robert C. Brickell, Atty. Gen., and Samuel Blackwell, for the State.
The bill in this case was filed and the injunction was sought to abate a nuisance as defined by the Fuller liquor bill. Acts Sp. Sess. 1909, p. 63. Section 20 provides that the bill or petition must state the facts upon which the application is based, and shall be verified by the affidavit of the officer or citizen filing the suit, either upon knowledge or information and belief, as the circumstances may warrant, and in case the bill is filed by any one of the officers named, and he be unwilling to make the affidavit, the verification may be made by any citizen or citizens in the same manner. The bill in the present case was filed by Solicitor Blackwell, who sets forth "that he is informed, and has probable cause for believing, and does believe, that the succeeding facts exist," etc. Blackwell does not make the affidavit, but one is made by one McCulloch, which does no more than affirm that affiant "is informed, and has cause to believe, and does believe that the statements contained in the foregoing bill are true." The bill does not aver an unequivocal existence of the facts complained of, but that Blackwell is informed and believes that they do exist, and the affidavit by McCulloch is nothing more than an affirmance that McCulloch believes that Blackwell was informed and believes the existence of the facts as set out in the bill. This is an extraordinary remedy, authorizing the seizure and destruction of property, and the issuance of an injunction must rest upon a sufficient and valid affidavit, and cannot be sustained upon such an affidavit as the one in question, as it in no sense affirms the existence of the facts complained of upon the knowledge or information of the affiant, and is at best a mere affirmation that affiant believes that Blackwell believes that said facts exist. Citation of authority is needless to demonstrate the insufficiency of this affidavit, and, indeed, the learned trial judge concedes in his opinion that the affidavit would be insufficient, but for the recent cases of Fitzpatrick v. State, 53 So. 1021, and State v. Abraham, 165 Ala. 201, 51 So. 788. The affidavit in the Fitzpatrick Case is unlike the one in question, and avers that affiant has probable cause for believing and does believe the succeeding facts therein set out. The objection to the affidavit did not go to affiant's belief or knowledge, but the insufficiency of the facts detailed to charge an offense, and to the constitutionality of the law; so this case in no way supports the sufficiency of the affidavit in the present case. The Abraham Case, supra, does not, as reported, disclose the affidavit, or that any point was made as to the sufficiency of same.
It seems to be settled by the decisions of this court, as well as the English cases, that if the injunction has been...
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