173 Ky. 771 | Ky. Ct. App. | 1917
Lead Opinion
Affirming.
These two appeals involve the same question and will be considered in one opinion.
Joseph L. Rhh conducts a saloon in the city of Covington. Emma Ruh is the owner of the property in which the saloon is conducted. Thomas R. Cody also conducts a saloon in the city of Covington and the Christian Moerlein Brewing Company is the owner of the saloon property. Separate suits were brought by the Commonwealth, on relation of the Attorney General, against the defendants below to enjoin them from permitting their respective properties from being kept open and used as a place for the sale of spirituous, vinous and malt liquors on Sunday. On final hearing the injunctions were denied, and- the Commonwealth appeals.
■ The petition in each case alleges that the defendants had kept their saloons and places of business' regularly open for the sale of spirituous, vinous and malt liquors and for the transaction of business in the usual and customary way on Sunday of a certain date, and on each and every Sunday next preceding said date for at least three months. Each petition charges, in substance, the following facts: That on the several Sundays mentioned the defendants sold and permitted to be sold on their premises intoxicating liquors to a large number* of persons, and suffered and permitted these persons to become noisy, insulting, boisterous, profane, drunk and disorderly on and about the premises and streets in that vicinity; that the business engaged in by the defendants on Sunday attracted to their places of business a large number of dissolute and drunken men and women from Cincinnati, and that their presence had a demoralizing effect on the welfare and morals of the community; that the acts of the defendants constituted a public nuisance, which the courts of Kenton county and the city of Covington were wholly unable to abate; that plaintiff had no adequate remedy at law, and that the only available remedy was to restrain and enjoin the defendants from continuing the nuisance, which they would do unless restrained, to the great and irreparable injury of the city of Covington and of the Commonwealth of Kentucky. Thereafter amended petitions were filed, alleging the same state of facts on Sun-
In the Ruh case the demurrer of the Commonwealth to the amended answer was overruled, and, the case being submitted on the pleadings, the petition was dismissed.
In the suit against Cody the case was submitted upon the face of the papers and the injunction denied.
There is a marked distinction between the cases under consideration and the cases of Commonwealth v. McGovern, 116 Ky. 212, 75 S. W. 261, and Respass, &c. v. Commonwealth, 131 Ky. 807, 115 S. W. 1131. The first mentioned case is a leading case on the right of a court of equity in a snit by the Commonwealth to.enjoin one from permitting the holding of a prize fight on his premises, on the ground that such use of his property will constitute a public nuisance. In that case, it appeared that there was a statute making it the duty of all- judges of courts, on being informed that a prize- fight was about to take place, “to suppress and prevent the same.” Kentucky Statutes, section 1289. It further appeared that the holding of the prize fight would attract an immense crowd of lawless and turbulent men from all quarters, and that it would be impossible to prevent this by arresting the participants and those in attendance. The court held that the use of the building for the purpose of holding the prize fight was a nuisance per se, and that, under the statute, it was the duty of all officers, both judicial and ministerial, named therein, to act without'delay for the purpose of preventing and suppressing the fight. To this end they were not required to wait for the fight to begin, or for the principals and others who were to engage therein to reach the place determined upon for the fight, before taking the necessary steps to prevent the same; but that as the prize fight could not be suppressed and prevented by the use of the means at the command of the criminal courts, the use of an injunction-for this purpose was not only permissible under the statute, but was required by the statute. In the case of Respass, &c. v.
Judgment affirmed.
Whole court sitting.
Dissenting Opinion
I agree "with, the opinion in so far as it determines that, under the condition of the record, all questions of the creation or maintenance of a nuisance by the defendants permitting noisy or disorderly crowds to assemble on their premises are eliminated; but I am-of the opinion that the answers as -drawn admit the continuous illegal sale of intoxicants by the defendants on Sunday, in open violation of the law, and that they kept their houses open for that purpose, and that persons resorted to the places of business of -the defendants for the purpose of buying liquor on continuous- Sundays, immediately preceding the filing of the suits, and they did - buy it, which, according to my opinion, constitutes a public nuisance, to abate which the-remedy sought in these cases is applicable. For this reason I dissent from the opinion.