Craig v. Werthmueller

78 Iowa 598 | Iowa | 1889

Given, C. J.

I. Appellants’ counsel have assigned-errors, and seemingly argú'ed the case upon the theory that we are to review the proceedings in the district court upon the assignment of errors. These cases, being in equity, are before us to be tried anew.

3- liquors: unlawful sales: nuisance: evidence. Under the issues our first inquiry is, does the testimony show that the defendants sold or kept intoxicating liquors for sale within this state contrary to law ? The only testimony before us is the ^ agreed statement of facts and the monthly ° - reports of the defendants. The monthly reports of Werthmueller & Ende show continuous sales from March 31, to August 25, 1888, and the report of Bosch from February 27, to August 25, 1888. Permits were granted to the defendants in June, 1887, for one year, which, under section 17, chapter 71, Acts Twenty-second General Assembly, were extended “ until such time as a permit can be obtained,” not beyond the first day of October, 1888. The first term of court in that county convened September 10,1888; hence the permits extended at least to that time. The statement of facts showed that the defendants manufactured beer from the taking effect of said chapter 71 (April 13, 1888) until the time of trial, but shows nothing as to sales. We have no evidence of sales except as shown by the monthly reports, and, as this entire period was covered by the permits, we are to determine this question as to defendants’ holding permits. There are several instances in which the reports do not conform to the statute, but none of which tend to show illegal sales. There is nothing from which to find illegal sales unless it be the quantity sold. The extent of business done by different dealers is so variable that the legality or illegality of their sales cannot be determined alone from the quantity sold. We think the testimony fails to show that the defendants were maintaining a nuisance by keeping a place for the unlawful keeping for sale, or selling, of intoxicating liquors.

a _. nul. facturero™” export alone. II. Our next inquiry is, whether the defendants maintained a nuisance by keeping a place for the unlawful manufacture of liquors. As we have seen, the agreed statement shows that phey continuously manufactured beer on the premises described from April 13, 1888, to the time of trial, October 17, 1888. Their permits authorized them to manufacture for lawful purposes, and there is nothing to show that they manufactured for any other during the time covered by their permits, — to-wit, until September 10, 1888. It does appear, however, that they continued to manufacture after September 10, to the time of trial, October 17, 1888, assuming that they had a right to do so for purposes of exportation from the state. That such manufacture was unlawful, and that the defendants thereby created and maintained a nuisance, will hardly be questioned in the light of recent decisions. See Pearson v. Distillery, 72 Iowa, 349. Our conclusion from the testimony is that the defendants did each maintain a brewery for the manufacture of intoxicating liquors contrary to law upon the premises described, and thereby each created and maintained a nuisance, as charged in the amendment to the petition.

___. Saiuyof -statute. III. Appellees contend that, though they did create and maintain nuisances, as alleged in the amendment to the petition, no decree should be entered against' them for the seizure and destruction of their liquors, nor for the removal and sale of furniture, fixtures, etc., because the law authorizing the same is in conflict with amendments 4 and 14 to the constitution of the United States, and sections 8 and 9, bill of rights, and article 3, constitution, Iowa. Their contention is that property of an individual cannot be confiscated or forfeited by legislative enactment, but only by the judgment of a court, in accordance with due process of law; and that by said laws the legislature forfeits the property in question, and does not leave such forfeiture to the court; that property cannot be forfeited by an action against the person, but must be by action against the thing, and that in a criminal case for nuisance the property is not involved, and that the defendant is entitled to his day in court upon the question of the forfeiture of his property. We understand the law to be that property of individuals cannot be forfeited by legislative enactment; that such forfeitures can only be by the judgment of a court of competent jurisdiction, in a proper case, after due notice. Laws of 1886, chapter 66, section 5, (McClain’s Code 1888, section 2389), under which decree is asked in this case, is as follows: “If the existence of the nuisance be established, either in criminal or equitable action, it shall be abated under the judgment and order of the court by seizing and destroying the liquor therein, and removing from the building, erection or place all fixtures, furniture, vessels and all movable property, used in or about the premises in carrying on the unlawful business, and selling the same in the manner provided for sale of chattels under execution, and by securely closing the said building, erection or place as against the use or occupation of the same for saloon purposes.” This statute does not forfeit property by legislative enactment, but, as in many other instances, authorizes and requires the courts, in cases where it has been established upon judicial investigation that property is such, or has been so used, as to constitute a nuisance, to abate the nuisance by destroying and selling the property. It is only by the judgment of a court that any person may rightfully destroy liquors found upon the defendants’ premises described, or remove therefrom and sell the furniture, fixtures, etc., therein.

In actions, either criminal or equitable, wherein the existence of a nuisance is established under the law in question, the action is against the thing — the place — as well as against the person. In either case the question is whether the place was a nuisance, and, if so, then whether the person was engaged in keeping it. Such actions are against the thing as well as the person, and the person has due notice, and his day in court in which to defend against the forfeiture of his property as well as the punishment of himself.

Numerous authorities are cited by counsel for appellees in support of their position. As our conclusions above expressed are largely in harmony with the views of counsel, we need not refer to the authorities cited further than to say that there is nothing therein in conflict with the views that we have expressed. Our conclusion is that the statutes under notice are not in conflict with any of the provisions of the constitution of the United States, of the state of Iowa or the bill of rights.

4' abatiVentnesf deflnlte' IV. Appellees’ further contention is that the court has no authority to order the sheriff to destroy whatever property may be found in a certain building, as such an order would leave to the discretion of the officer what to destroy and what not; that it is for the courts to determine what shall be destroyed. It appears without question, that the defendants each owned the brewery-property described in the respective petitions, and were using and were operating the same as breweries, and as we have found so in violation of law as to render each of said places a nuisance. No question is made as to the identity of the real estate, as it is specifically described. We have no difficulty in finding from the testimony that all intoxicating liquors on the premises described are subject to seizure and destruction. It is a sufficient identification of them that they are found on the premises. Neither have we any difficulty in finding that all fixtures, furniture, vessels and all movable property, used on or about the premises in carrying on the unlawful business, should be seized and sold. We are unable, from the pleadings and proofs, to more definitely describe the fixtures, furniture, vessels and movable property to be removed and sold, than to say that it is that which was used on or about the premises in carrying on the unlawful business of manufacturing intoxicating liquors. An officer, holding the warrant of this court to abate these nuisances by seizing and destroying the liquors on the premises, and removing from the buildings all fixtures, furniture, vessels and movable property used on or about the premises in carrying on the unlawful business of manufacturing intoxicating liquors, and to sell the same, would not be at liberty to remove and sell property indiscriminately, but only that which was used on or about the premises described, and in the unlawful business of manufacturing intoxicating liquors. This describes the property to be destroyed and removed and sold as near and “ particularly as may be.” Such a description of the property to be destroyed and removed is more definite than is given to officers in many other writs, as, for instance, an execution or attachment. If an officer should assume to seize property, under such an order, that was claimed not to be covered by the warrant, the remedy of the owner is complete, either by proceedings against the officer, or by applying to the court for a proper order in thie premises. These cases are unlike Ieck v. Anderson, 57 Cal. 251, cited by counsel. In these cases, the officer acts under the warrant of the court, based upon an adjudication; in that, the statute held to be unconstitutional authorized the destruction of property, used in catching fish in violation of the law, by the peace-officer without any adjudication.

' oNsipgbrew-' foon p°ur-sa P°ses. V. It will be noticed that section 2389 of McClain’s code, quoted [above, in directing the manner in which the nuisance shall be abated, prescribes, in addition to the destruction of liquors, and removal and sale of fixtures, etc., that it shall be by securely closing the building “as against the use or occupation of the same for saloon purposes.” Appellees’ contention is that their premises were not used as saloons, nor for saloon purposes, but as breweries for the manufacture of beer ; and hence that there is no authority for closing the same. The law is imperative that if the nuisance is established it shall be abated. The words “saloon purposes,” as here used, mean more than simply a place for the retail of intoxicating drinks. The evident intent of the legislature is that the court should order the abatement of every place established to be a nuisance, either by being maintained for the unlawful manufacturing,. selling or keeping for sale of intoxicating liquors. It would be a manifest disregard of the legislative intent to say that these nuisances should not be abated by being closed, as provided in the statute, simply because they are not generally designated as “ saloons.” The term “saloon,” though often differently applied, as used in this statute, has reference to places that are nuisances by reason of the unlawful manufacturing, selling or keeping for sale of intoxicating liquors.

__,_._. 'attorney’s ' VI. The statute provides that “if successful in the action the plaintiff shall be entitled to an attorney’s fee of not less than twenty-five dollars, to to be taxed and collected as costs against the defendant.” Laws of 1886, ch. 66, sec. 1. (McClain’s Code, 1888, sec. 2385.) It is not questioned but that, if a greater sum than twenty-five dollars is to be taxed, the court must fix the amount. Appellant claims a larger sum than twenty-five dollars in each case, and offered to prove that the value of the service was one hundred dollars, which evidence the court refused to receive, but, upon its own motion, ordered that fifty dollars’ attorney’s fee be taxed in each case.

We think that where there is no controversy as to the amount, the judge may, upon the record and his own knowledge of the services rendered in the case, fix the amount without testimony ; but, where there is a contention as to the amount to be'taxed, testimony should be heard, and the amount determined from the testimony and record alone. To proceed otherwise would leave the parties without any record of the evidence upon which the amount was determined. The court should have heard the evidence offered by either party as to the value of the attorney’s services, and decided therefrom and from the record the amount to be taxed.

The decrees entered in each case in the district court are reversed, and the cases are remanded, with direction to enter decree in each against the defendants therein, finding that they created, established and maintained, in and upon the respective premises described, a nuisance, to-wit, a place for the unlawful manufacture of intoxicating liquors, as charged in the amendments to the petitions ; and ordering and adjudging that said nuisances be abated by seizing and destroying any intoxicating liquors found on said premises and by removing from the buildings thereon all fixtures, furniture, vessels and all movable property used in or about the premises in carrying on the unlawful business of manufacturing intoxicating liquors, and for the sale of the same, and the application of the proceeds of the sale as provided by law ; that said buildings be securely closed as against the use or occupation of the same for the unlawful manufacture of intoxicating liquors, as provided by law ; and that the defendants, respectively, be perpetually enjoined and restrained from creating, establishing, keeping or maintaining said nuisance ; and that the premises be enjoined from being used for the illegal manufacture of intoxicating liquors. The district court will hear testimony as to the value of the services rendered by plaintiff’s attorney in each case, and enter judgment against the defendants, respectively, for costs, including such amount as attorney’s fee as upon the record and the evidence the court may allow, which costs together with all costs incurred in the abatement of said nuisance, and the sale of said property, shall be declared to be a lien upon the real estate described in the respective petitions.

Reversed.