*1 Carey Dorothy Fred P. S. Carey, appellees, v. Iowa al., appellants. Control Commission et

No. 51508. (Reported in 429)

January 1965. Yost, Hultman, Attorney General, William Assist- Evan J. County General, O’Connor, Edward L. Johnson Attorney and ant Attorney, appellants. for Assistant Meardon, City, appellees. for L. William brought equity for action J.—Plaintiffs Stuart, opera- declaratory asking the to hold that judgment, court exceptions comes within the tion of their business establishment licensing requirements the Iowa Control Act as 437, passed in chapter 114, section of Senate File amended Assembly, provides: which General Sixtieth any person, firm, corporation, partner- for “It is unlawful consumption of dispensing ship association to allow or or intoxicating liquor intoxicating beverages except or sacramental beer, unless establishments and establishment wines title. are licensed under this however, provisions

“Provided, of this section shall not meetings where mixed drinks apply to bona fide conventions delegates guests provi- cost. All other without are served to applicable chapter pro- shall be to such rooms. The sions of this application to occasional of this section shall have visions in a home gatherings of friends or relatives private social place.” plaintiffs’ operation was within The trial court held interfering enjoined and the defendants from exceptions these appealed. Defendants therewith. City Mayflower for over operated the in Iowa

Plaintiffs have renting years. consists of the establishment Their business corporations for private persons, firms, associations gatherings. meetings dinners, parties, or other purposes such as gatherings requested if prepare to such Plaintiffs and serve food premises renting for the Arrangements do so. charge depends upon in advance. The rental menu must be made reservations. If the number of dinners the number of dinner an additional cash rental. than fixed minimum there is less charge consumed, mixed also for If drinks requested. if glasses and will furnish a bartender mix, ice mix liquor may own parties supply must their own public in open the sense drinks. The establishment anytime A mini- public may and be served. that the come occupying the paid privilege mum rental must be premises occasion, parties for a at which time particular *3 place”. leasing premises have the of the the “run bring week, a but does not The Lions meets there once Club premises have the liquor. Representative groups which rented Commerce, Optimists Club, Kent the Junior Chamber of include Association, Bar and Feeds, County Johnson fraternities soror- of question subter- ities, businesses and individuals. There no any provisions the fuge the of the Act other than violation of question. one an- appeal on this have

Most of matters raised been the Associates, v. Iowa opinion our Sioux Inc. swered 421. It would Commission, 257 Control time, reasoning au- purpose repeat, no and serve to at the set thorities forth there. Mayflower

I. Defendants contend is not a place” meaning licensing exception. home or within of the in which we This contention is answered 'Sioux Associates place “pri and that hold that modifies both home and a place” public is one which not have and is vate “to does permitted place public of have access and is not a resort.” Mayflower except by arrange public closed to the rental only rented, ments made advance. When those invited they use of renter are admitted have exclusive the estab- separate rooms, only party has Although lishment. there are one permitted passed. given night since the Act been on long guests as attendance is restricted to invited both the So private. gathering are during part

II. that at least The evidence shows year premises nights rented four or five a week differ parties may year. some 200 ent and that be used a De times it therefore not an gathering fendant contends that “occasional friends or In relatives”. Sioux Associates we held that occa did on landlord, sional not constitute a restriction but rather by any on limitation the use one tenant. If the restriction were exception landlord, meaningless would become for no large enough large one could maintain facilities parties to handle they only if year. or dances could be a few used times a regular weekly. renter here is the Lions which Club meets Since liquor meeting, is involved there is no of a statutory All violation. other tenants come within the definition “occasional” contained Sioux Associates.

III. Defendants contend have failed show that parties “gatherings were friends”. Sioux we Associates held members of dance club were friends within the meaning of presumed the statute. The can same about members of service clubs, associations, fraternal organizations employers employees. It must be remembered that “gatherings of friends” applies to places. homes as well as impossible would create an problem enforcement if the exact nature of the relationship be- parties determining tween became the Certainly factor. ac- quaintances with similar interests should be considered friends purpose parties of this statute. Private would presump- *4 tively include friends.

IV. Facts here differ from Sioux Associates plaintiffs serve sell mix food, the and ice and will furnish a bar tender while Sioux Associates the brought renters their own setups mix and ice and sold the to the members of the dance clubs. We do1not factual important believe the difference is as the stat punish ute does not the actual dispensing consumption or of liquor, but it makes unlawful to allow1 dispensing the or con sumption. permitted Plaintiffs Sioux Associates dispens the fully premises as mueb liquor on tbeir consumption ing and plaintiffs bere. of the rentals which argue orally that some Y. Defendants meetings did not come or obviously fide conventions bona were for charged the host proprietor exception because the within the were not “served the drinks mix ice and therefore the interpret so the We do not delegates guests without cost”. or drinks. pay will for the mixed in some manner The host statute. buys grocery mix at a pays proprietor or the he the Whether for immaterial. If there is no cost brings it himself is store and guests convention or delegates or at a bona fide drinks to the the guest delegate paid If exception. meeting, it is within the exception would not mix for mixed drink the or ice his apply. temporary injunction enjoin- granted a

VI. trial court officers, “pending disposition the final of the ease peace merits, molesting interfering plaintiffs with the its from ** * Mayflower, long so as said liquor selling same; that the furnishing defend- are not enjoined interfering private parties held at from with ants are private party furnish Mayflower, the members of the where liquor and do not intoxicating for themselves sell the own same, parties do not become boisterous or loud long so as said injunc- nuisance, being it the intention of Court that said agents peace 'their tion shall restraiu defendants and construing way pending the Act in from other officers apply this -than that section 30 should litigation of case plaintiffs herein.” injunction judgment perma-

In its court trial made the granting injunc- Defendant claims the court erred in nent. tion. need not decide whether was

We error for the court trial injunction temporary enjoining to issue a the officers from inter- declaratory fering plaintiffs’ judgment business until a with was question became final judgment obtained. That moot when We therefore address perma- entered. shall our attention to the only. injunction nent record is clear that there was no harassment

250 disagree- genuine plaintiffs by any peace officers. There was a the Act. legality plaintiffs’ operation on under ment operation interpreting his plaintiff’s officers, fear that the might law, as violation of the raid his and cause embar- plaintiffs’ rassment to his customers. held that We have now exceptions licensing provision is within to the officers illegal. nothing not record to indicate the There plaintiffs’ any will them undue diffi- raid establishment cause culty interpreted. the absence of now that the law has been proof they accept contrary we must assume that will interpretation and abide it. Plaintiffs are entitled as the law law, protection parties operating within the the same as other protection extraordinary an but not to the additional of such remedy injunction. as Peace officers should have the same investigate alleged right plaintiffs’ premises violations on other.

Injunctions great granted should be with caution. This particularly applicable peace when addressed to officers con Joyner Hammond, scientiously attempting enforce the law. v. 922, 919, 571, 934; 200 N.W. 36 A. L. R. 921, 199 Iowa Wood Eicher, 550, 559, Thresher Co. 231 Iowa 558, Brothers v. 1 655; Products, Hoegh, 212, Kent Inc. N.W.2d v. 213, N.W.2d 711. Products, Inc., page canceling

In Kent the order temporary injunction, say: we for a “It is shown defendant oppressive engage needless, state officers will or vexatious prosecutions. appears All they attempt is that will to do * * duty showing A duty similar is made here. Their will now be interpreted. herein governed the law as portion judgment making injunc- That the temporary permanent part; tion is reversed.—Affirmed in part. reversed in JJ., and Moore,

Larson, Peterson, Thornton, con- Snell cur.

Thompson, J., J., C. dissent. Garfield, part. J., takes Hays, *6 (dissenting). companion J. case case is a

Thompson, —This Associates, Commission, Sioux Inc. v. Iowa Control 308, 421, companion Iowa 132 N.W.2d and this dissent is a dissent dissenting to the one filed What therein. was said in the opinion applicable there is here; all of what is said here is like pertinent wise to the dissent in Sioux Associates.

I. For the brevity sake of I shall refer the Sioux Associ- Sioux, ates ease as and to Carey. question the instant case as of strict exception statute, construction of provided in the relieving from its private gatherings “occasional social of friends or relatives in place” home is discussed Sioux, in in the dissent repeated and need not here. Refer- made, however, ence is to the authorities there cited: Wood Eicher, Brothers Thresher Co. v. 550, 562, 563, 231 Iowa 655, 661; N.W.2d Hawkeye Portland Cement Co. v. Chicago, & Railway Co., Rock Island 1250, Pacific 198 Iowa 1255, 201 N.W. 16, 19.

II. In dissent, however, the Sioux question of mean- of “a place” home or as used in the statute was not extensively considered. I proper But think a construction these terms right rules both cases denies the of the to the relief in asked, each. question application ejusdem of the of the rule of ge- only sketchily

neris is dealt with in the case, Sioux holding adopted by there is majority opinion here without cases, further consideration. Both therefore, rely upon the some- meager analysis what in Sioux, and both reach unsupportable conclusion. is writing achieved the word statute, “home” out of the discussing only adjective “private”. So, considering instead of entire term home”, majority Sioux, in analysis followed without further Carey, in gives governing part of the term no real considera- tion. This sought, entirely achieves the result but overlooks the real issue.

Lord Rule, Tenterden’s known principle to our law as the ejusdem generis, thoroughly established and understood, applied many cases, has been both in juris- Iowa and in other “ejusdem generis” dictions. The words mean literally “of the page species.” S., Ejnsdem, same kind or 28 C. 1049. The rale J. specific things enumeration of is followed is that “where an general phrase general phrase, some mo-re wo-rd or word * * things J. is to be held to refer to of the same'kind 28 C. S., Ejnsdem, Whattoff, 251 pages 1049, 1050; Hewitt v. 171, majority says Sioux, 175, 24, 26. The “clean-up” general there word the statute under con word, necessary “clean-up” sideration. It that there be a in the terms of “or otherwise” similar v. State terms. Wignall, 507, N. A., S., 150 Iowa 128 N.W. 34 L. R. leading point, target phrase case Iowa on person”; person engaged “or and we held this meant a who was kind preceding the same of activities as in the delineated *7 specific general terms. the “or person”; There term was here it place”. “or possible say is It is not to general one is a term while possible agree court, other is not. the So it is not with the trial majority, general and the that there is no term involved here. specific private home”; words statute are “a the general following place”. “or It words of course not re is quired one; specific several, than the words or more a single specific preceding general appli term a term an calls for Certainly specific; equally cation of the rule. “home” a is and certain, “place” begs general. say a that the only important specific “private”; word term is it merely adjective describing specific making word specific. genus “home” more word is “home”.

Applying wording statute, the rule to the actual of the we specific have the “a following words home” and the words place”. “or Co., 89, Brown v. H. 98, J. Bell 146 Iowa 231, 234, A., 852, N.W. 27 L. R. N. S., Ann. 1912B Cas. purport we said “the [ejusdem generis] of which that, where specific words of same nature are used statute followed by general ones, general the use of these terms mean- take their specific ing genus; from the ones and are restricted to the same words, comprehend only things other those of the same kind specific quoted as the ones.” We and followed this in- v. State Cusick, 1168, 1171, 248 Iowa 556. In this case 1172) (page quoted approval we with this statement: “It has universally applied said that rule has been with some been strictness, enlarge provisions degree so as not to of a stat- statute, ute, reading manifest from a of the whole unless was statutes, powers that it was intended to broaden or relative dele- gated.” S., Ejusdem, page 1050. C. J. Whattoff, supra, general

In Hewitt v. we said that the term applied only “something genus, of the must be same kind, things specifically same as the named.” Loc. cit. 251 Iowa 27. defined in 176, 100 N.W.2d “Genus” is Webster’s Third New Dictionary meaning class, kind, group International “a by by common characteristics or one marked common character istic”. specific have here the term

So we home” followed place”. “or general inescapable— term It seems to me majority escapes although ejusdem it—that rule ge- force; general here in full applies neris and that word “place” place class, having must mean a of the same kind or might common characteristics as a “home”. Such be a hotel or boardinghouse room; motel, commercially operated but not a nightclub, ballroom, restaurant devoted to the serv- banquet rooms, profit. home, of meals and rental of A says Third New Dictionary, Webster’s International is “the house appurtenances grounds habitually occupied with by a family; principal place residence; domicile; one’s dwelling.” anyone I doubt will contend a ballroom, commercial Sioux, as in or the conducted plaintiffs, as *8 Carey, dictionary comes within either the definition or of a home understanding popular of the word. in majority, Sioux, adopted

The in Carey, says if “place” thing “home”, were intended to mean the same as there would be it majority really no occasion to use at all. What saying is ejusdem generis here is that the rule meaningless, is either abrogated. For the argument should be same could be made in applies; ease where the rule general each if the term must mean only thing, things, specific the same as the words which it why follows, is it written place into statute in the first ? The answer, applied bar, to the case at apparently is that legis- except private lature wished to homes, things but of a boardinghouse hotel and motel and nature, similar such as the previously general character- rooms referred to. These have the home; temporary, many cases, in a istics of a but still used as dwelling place longer periods. for or shorter Another answer is thoroughly rule statutory that the is established as one of con- ; universally accepted is and followed, struction and we ourselves in many it cases. applied have

Indeed, argument point at this operates reverse to the reasoning majority. If place is within the statute, exception majority holds, why as the is the word place necessarily included at all? A in- “home” would home. But is clude a the hard fact that the word is “home” there. legislature put We must assume the it there a pur- definite pose meaning. specific and to have a definite pre- is a term “place”. ceding general place, therefore, term must genus as a home. In this a surely of the same dance hall or cafe of the chief a home; fails for want characteristic of for neither dwelling place, residence, or is a domicile. majority -“private” selects one characteristic of a home— ignores primary

—and all others. The characteristic aof home place; adjective dwelling indeed, is that it is a “private”, majority considers, redundancy. which is all the is a All homes private places private, but all are But, by ignor- not homes. majority the other attributes of a “home” succeeds suggest I defeating the rule. that the rule clearly, means here “place” “private that the which follows home” the statute characteristics; with the same means a of the same kind. And the most marked characteristic of a home a place; domicile; building dwelling where one resides. Cer- public building hall tainly a dance devoted use aas restaurant supper club or is not the same kind and does not the same have characteristics as a home. The answer to both Carey point. is found ejusdem Sioux and The rule of generis applies equally fully in both eases. ejusdem Leaving question

III. generis, which seems clearly Carey, to me to rule both Sioux and there is the Carey plaintiffs’ whether the fact a place” meaning generally of the statute. This is a fact within the *9 question, applied to be determined from the evidence to the as wording plaintiffs plead of that their the statute. The business operating long period time, has been established “throughout County, is well known City, Johnson private places State of Iowa.” Few are SO'well known. The behalf, plaintiff P. Carey, testifying Fred in his said: “Who own gets parties up person to to come to the who has leased the premises, they many people going tell me in advance how are be I there. When I said there a minimum number that upon, I relationship serving insisted meant that in of food. If we do dinners, not have a certain amount of then we make pay them charge Further, rental in addition.” he testified: “Any corporation or partnership or association or legitimate organization can rent a room.” Carey

While Mr. repeatedly said that he does not serve the public, only this is true if at all in a Any- most technical sense. room; only one can rent a qualification being that if he does purchase not a sufficient number of required dinners he will be pay some rental for room, rooms, Apparently nsed. any orderly individual could secure if service, even he were alone, if he him pay wished to whatever charged extra would be way of rental. There is no other restriction size of groups, except they orderly. course that position of the man who said dealt with his he friends, but that he “hadn’t enemy in the world.”

I cannot legislative believe the enactment, strictly construed against exception, is shown exempt operations plaintiffs are conducting here. However, I am convinced the rule ejusdem generis clearly so covers the I situation that shall further point stress the factual briefly discussed in this division.

The judgment of the trial court should be reversed. J., joins C. in this dissent.

Garfield,