184 Wis. 42 | Wis. | 1924
The principal relief prayed for is an abate•ment of the nuisance and an injunction prohibiting the use of such premises for the purpose of selling therein nonintoxicating beverages, upon the ground that such premises are so used as a cover for the manufacture and sale of intoxicating liquors.
Under the provisions of sub. (30), sec. 165.01, Stats., the possession of intoxicating liquor on or about the licensed premises is prohibited. Sub. (22), sec. 165.01, provides as follows:
“Any room, house, building, ... or place where intoxicating liquor is manufactured, sold or. kept in violation of*44 any of the provisions of this chapter, and all intoxicating liquor, and property kept and used in maintaining the same, is hereby declared a public nuisance, and any person who maintains such nuisance, upon conviction thereof, shall be fined not more than one thousand dollars or be imprisoned for not more than one year or both. If a person has reason to believe that his room, .house, building, ... or place is occupied or used for the manufacture or sale of liquor, contrary to the provisions of this chapter, and suffers the same to be so occupied or used, such room, house, building, . . . or place shall be subject to a lien for and may be sold to pay all fines and costs assessed against the person guilty of such nuisance and any such lien may be enforced by action in any court having jurisdiction.”
The action herein is brought under the provisions of sec. 3180a, which provides as follows:
“An action to enjoin a public nuisance may be commenced and prosecuted in the circuit court of the county in which the alleged nuisance exists, in the name of the state, either by the attorney general upon his own information, or upon the relation of a,private individual having first obtained leave from said court to commence and prosecute the same. The same rule as to liability for costs shall govern as in other actions brought by the state. In such action, the defendant shall answer in ten days after the. service of the complaint, and hearing may be had upon five days’ notice by either party thereafter. No stay of any order or judgment enjoining or abating, in any action under, this section, may be had except the appeal be taken within five days of notice of entry of such judgment or order or service of the injunction. Upon appeal and stay, the return to the supreme court shall be made immediately, and the appeal may be heard as soon thereafter as that court shall direct. Nothing in this section shall be construed to limit the general equity powers of courts to grant temporary injunctions to extend the time for any pleading or proceeding, to impose conditions other than those herein enumerated upon a stay, or in any other manner. No extension of time, however, shall be granted in an action brought under this section by any court commissioner.”'
“In such actions, when the plaintiff prevails, he shall, in addition to the usual judgment for damages and costs, also have judgment that the nuisance be abated and removed unless the court in which such action shall be tried shall certify, in the minutes of such trial, that the abatement thereof is unnecessary.”
Sec. 165.01 was enacted by the legislature upon the adoption of the Eighteenth amendment to the federal constitution. Such constitutional amendment was expressly designed to prohibit the manufacture, sale, and use of intoxicating liquors for beverage purposes. Upon the enactment of the Eighteenth amendment to the constitution Congress passed' the Volstead Act, which is the national enforcement act, and the provisions of sec. 165.01 of the Statutes of this state are to a large degree similar to those contained in the Volstead Act.
For the reason that traffic in non-intoxicating liquors affords an easy cover for dealing in intoxicating liquors, the legislature has seen fit to regulate the sale of non-intoxicating liquor. In Pennell v. State, 141 Wis. 35, 123 N. W. 115, it was held that the legislature had the right either to regulate or to forbid the sale of non-intoxicating liquor in order to make more effective the law prohibiting the sale of intoxicating liquor. The importance of the various enactments prohibiting the manufacture and sale of intoxicating liquors for beverage purposes becomes apparent when we. consider, that the nation has seen fit to incorporate prohibition in the constitution by the Eighteenth amendment. The public policy of the nation and of the various states has been declared in definite and unequivocal terms, not only by the Eighteenth amendment and the act of Congress in the passage of the Volstead Act, but by the various statutes on the subject passed by the legislatures of the different states. Even before the passage of the constitutional amendment it
“The power of the legislature to deal with the liquor traffic by regulation or suppression is quite plenary and has time and again been justified as a valid exercise of the police power. In Zodrow v. State, 154 Wis. 551, 143 N. W. 693, in speaking of such power it was said: ‘It may be summed up as resting upon the fundamental principle that society has an inherent right to protect itself; that the preservation of law and order is paramount to the rights of individuals or property in manufacturing or selling intoxicating liquors; that the sobriety, health, peace, comfort, and happiness of society demand reasonable regulation, if not entire prohibition, of the liquor traffic. Unrestricted it leads to drunkenness, poverty, lawlessness, vice, and crime of almost every description. Against this result society has the inherent right to protect itself — a right which antedates all constitutions and written laws — a right which springs out of the very foundations upon which the social organism rests; a right which needs no other justification for its existence or exercise than that it is reasonably necessary in order to promote the general welfare of the state.’ ”
Bearing in mind the constitutional provision and the statutes and the declarations of the courts on the subject of the prohibition of the liquor traffic, it is not surprising that the legislature of this state has seen fit to declare, by sec. 165.01, premises where intoxicating liquor is manufactured, kept, or sold in violation of law public nuisances. Independent of the provisions of sub. (22) of sec. 165.01, in view of the public policy of the nation and of the state, the continued use of premises for the manufacture, sale, and possession of intoxicating liquors contrary to law would constitute such premises a public nuisance.
Under a general demurrer the allegations of the comT plaint must be deemed to be true. It is there alleged not only that the premises in question.were used for the manufacture, sale, and possession of intoxicating liquors contrary to law, but that the law itself was used as a means and a
It appears to us that, independent'of the provisions of sec.
While the statute provides for a penalty on account of violation of the liquor laws, the enforcement of such penalty under the allegations of the complaint does not operate to eradicate the evil. The remedy under the criminal statute is inadequate, and, when such a situation arises, the majesty of the law can only be vindicated by a resort to an equitable proceeding.
We therefore conclude that the complaint states a cause of action and that the demurrer was properly overruled.
By the Court. — Order affirmed.