84 N.W. 363 | N.D. | 1900
Lead Opinion
This action was instituted by P. J. McClory, as assistant attorney general, under section 760 p; of the Revised Codes of 1895, to abate an alleged nuisance created by selling and keeping for sale intoxicating liquors as a beverage. The action was tried to the court without a jury, and after the evidence was submitted counsel for plaintiff framed and presented to the trial court findings of fact, — 18 in number, — and requested said court to make and file such findings, and further requested the court to make and file certain conclusions of law in plaintiff’s favor, and to direct the entry of a judgment for the relief demanded in the complaint. Pursuant to such request, the trial court made and filed each and ah of plaintiff’s said findings of fact, but refused to find the conclusions of law as requested by plaintiff’s counsel; whereupon the trial court made other conclusions of law favorable to the defendant, and thereby adjudged that under the facts so found the trial court did not have jurisdiction over the subject-matter of the action, and the court further directed that the action be dismissed, with costs against the plaintiff. Pursuant to such findings, judgment was entered dismissing the action, with costs. From such judgment the plaintiff appealed to this court, and subsequent to the plaintiff’s appeal the defendant also perfected an appeal to this court from said judgment. The notice of appeal served by defendant embraced the following language: “By this appeal the defendant seeks to review only the findings made by the court in behalf of plaintiff at plaintiff’s request.” A statement of the case was settled in the District Court, and the same is incorporated in the record sent to this court. The statement of the case embraces certain papers, the material' features of which may be summarized as follows: (1) A paper showing that defendant, at the opening of the trial, objected to the introduction of any evidence under the complaint, for the reason that the complaint did not state a cause of action, in this: (a) That an in junctional proceeding will not lie against a druggist holding a permit under the laws of this state; (b) upon the ground that the court has not jurisdiction of the subject-matter; (c) upon the ground that the complaint does not charge violations of the law with sufficient certainty. (2) At the trial the defendant further objected to the introduction of any evidence of sales of liquors to any person whomsoever except to one Ed Gleason, for the reason that sales to no other persons were charged in the complaint. (3) The introduction of evidence of sales to minors and habitual drunkards was objected to upon the ground that sales to such persons were not
The complaint is as follows: “ (1) That at the city of Langdon, in the county of Cavalier, and state of North Dakota, the defendant herein, in a building situated on lot six (6) of block twenty-seven (27) of the original townsite of Langdon, now keeps and maintains a bar and place for the sale of intoxicating liquor as a beverage; that at said place the said defendant has maintained, ever since the 1st day of January, 1896, a public bar, equipped with glasses, bottles, and has during all of said time and he does now keep therein beer, wine, whisky, brandy, and divers and sundry other fermented, malt, and vinous liquors, — all of which said liquors are intoxicating; and the defendant keeps the same in said building for the purpose and with the intent of selling the same to be used and drank as a beverage, and for the purpose of selling the same in violation of law. (2) That the defendant has sold intoxicating liquors at said place to divers and sundry persons, and particularly as follows: Alcohol to Ed Gleason on Jufy 7, i8g8; and is now engaged in selling such liquors continuously and as a common practice and business, and will continue so to do, as plaintiff is informed and verily believes, unless restrained by the proper order of this court. (3) That said defendant, N. McGruer, has permitted said intoxicating liquors to be used and drank upon the said premises, and over his said bar, and now allows the same to be used and -drank over said bar; and he, the said defendant, knowingly permits persons to resort to said place for the purpose of drinking intoxicating liquors as a beverage. (4) That the defendant, N. McGruer, is now, and at all the times hereinafter and hereinbefore mentioned has been, the owner in fee of the building situated on lot six (6) of block twenty-seven (27) of the original townsite of the city of Langdon, in Cavalier
This action having been tried in March, 1899, by the court without a jury, is, as to its procedure in the court below and in this court, governed by the provisions of section 5630 of the Revised Codes of 1899; and with reference to the matter of procedure an important preliminary question is presented. The record does not embrace the evidence presented to the court below, or any part thereof; nor does the statement of the case embrace a demand by either of the appellants of a trial anew in this court either of the entire case or of any specified question of fact in the case. In view of these omissions, the language of said section 5630 is directly applicable to this case. The section declares, with reference to a statement of the case, that the appellant “shall specify therein the questions of fact that he desires the Supreme Court to review, and all questions of fact not so specified shall be deemed on appeal to have been properly decided by the trial court.” It is further declared that the Supreme Court “shall try anew the questions of fact specified in the statement, or in the entire case.” Under the language of said section it is clear that upon this record this court is without power either to try anew the entire case, or any particular question of fact in the case. The statute is further explicit to the point that, in the absence of specifications, and of any demand of a retrial in this court, this court is compelled to hold that'all questions of fact decided below were properly decided. Upon this point see Bank v. Davis, 8 N. D. 83, 76 N. W. Rep. 998. In the case cited this court used the following language: “Under the amendment we are considering such specifications as are required by former statutes and by the rules of this court are no longer required in actions tried below without a jury, and which come to this court for a retrial upon the merits.” See 8 N. D. 86, 76 N. W. Rep. 1000. In the case at bar no question of fact presented in the record can be retried, and it is, therefore, clear in this case that the list of alleged errors of law contained in the statement and based upon the rulings made upon the admission of the evidence are not pertinent, nor does the same subserve any useful purpose; and this is true likewise of the list of specifications above mentioned, in which it is sought
The record being thus purged of extraneous matter, there remains but a single question for determination in this court. This question arises on the face of the statutory judgment roll, and is strictly a question of law. Briefly stated ,the question is whether the complaint states a cause of action. The trial court held in terms that it did not, and that the action should be dismissed for want of jurisdiction in the court over the subject-matter, and upon the ground that a civil action cannot be maintained under the statute against a druggist holding a permit. A perusal of the findings of fact furnishes conclusive evidence that during all of the time referred to in the complaint, and subsequently, and while the action was pending, and until it was tried in the District Court, the defendant was extensively engaged in selling intoxicating liquors as a beverage, and during all of said time defendant was keeping a place in which intoxicating liquors were sold and kept for sale in violation of law. Said unlawful business was at all times conducted and carried on upon premises owned by defendant, and described in the complaint. It is also true, and the court so finds, that said liquor was sold within defendant’s drug store, and while the defendant had a druggist’s permit, which authorized him to sell intoxicating liquor for the purposes and under the restrictions specified in the statute. Upon this state of facts it is entirely clear that the defendant has been guilty of establishing and maintaining a liquor nuisance, within the meaning of section 7605 of the Revised Codes of 1895. Upon the facts found by the trial court the legal inquiries are whether such nuisance, when the same is established and maintained in a drug store, and by a licensed pharmacist holding a druggist’s permit regularly issued under the statute, can lawfully be abáted, and its further maintenance enjoined, by a court of equity in a civil action, instituted under the statute. We have reached the conclusion that all of these questions must receive an affirmative answer. It is the contention of counsel for the respondent that’the District Court did not have, and could not obtain, jurisdiction of the subject-matter of the action, for the reason, as counsel claims, that the action to abate a liquor nuisance cannot be maintained in any case as against a defendant who is a druggist, and who holds a regularly issued permit. In support of this contention counsel argue that the statute (chapter 63, Rev. Codes 1895) has prescribed certain remedies and certain procedure which are special in character, and which are intended to be exclusive in all cases in which a druggist is or may be prosecuted for violating the provisions of the statute. Counsel concede that the
But counsel further contends, or seems to contend, that, inasmuch as the druggist, by his permit, is authorized, under the statute, to have and keep intoxicating liquors in his possession for sale in his drug store for certain lawful purposes defined in the statute, it follows that in a case where a druggist abuses the privilege ■ conferred by the permit, and proceeds to keep intoxicating liquors
Counsel invites the especial attention of the court to the following language, found in section 7605, supra: “The finding of such intoxicating liquor or liquors on such premises shall be prima facie evidence of the existence of the nuisance complained of.” This language has reference to intoxicating liquors found by an officer empowered to search for the same under a warrant, which, in this class of cases, may be issued in connection with a temporary injunctional order. In the case at bar no such warrant appears to have been issued; hence no liquors so seized were or could be used in this case as evidence that the defendant is guilty of maintaining the nuisance complained of. But counsel contends that the action cannot be sustained, because section 7605 of the statute permits the warrant to issue in any case brought under said section, and,' when the liquor is found on the premises, that the same is, under the statute, prima facie evidence of the existence of the nuisance. Counsel inveighs against this statute as “abhorrent to the legal mind.” Counsel points to the fact that the liquor which the druggist is permitted to have in his possession, when found on his premises by an officer, is, under the statute, prima facie evidence against the druggist. From the apparent harshness of the statute, counsel would have the court infer that the statute was not intended to apply to the case of a druggist. But it may be said that this entire statute is one peculiarly drastic in its provisions. Whether the statute is wise or unwise, mild or severe, is not, however, a question upon which the courts are required or expected to pass. But the particular provision now under consideration — that which makes the finding of liquor upon the premises evidence of the existence of the nuisance —is, in our opinion, less severe than some of the other features of the law. The liquor so found cannot be used as evidence against a druggist in a criminal prosecution or in a criminal contempt proceeding against such druggist. See section 7614. On the contrary, liquor kept by a citizen for strictly private and lawful uses may be used against him in any criminal action or contempt proceeding when the same is found in his dwelling house, if the owner of such liquor happened to reside in a store or tavern. This feature not only illustrates the severe character of the statute, but it further shows that the druggist under the statute is dealt with more leniently than the citizen who does not hold a permit. The druggist, of course, has,' under this statute, no greater right to keep liquor in his store than the private citizen has to keep it in his dwelling house for lawful purposes. Nevertheless, the law discriminates in
But section 7605 further provides that an officer under a search warrant, who finds such liquor on premises described in the warrant, is required to take the same into his custody, and further required to take the personal property there found .into his custody; and finally the officer is commanded to take possession of such premises, and to hold possession thereof, and of said liquor and personal property, until “final judgment” is rendered in the action. With reference to these provisions counsel contend that a mischievous person, acting from malicious motives, might falsely accuse a reputable druggist of maintaining a nuisance in his drug store, and thereby might institute proceedings under the statute which would result in closing up the store, and destroying the business there being conducted. We concede that such a result is possible, but we apprehend that the possibility of an abuse cannot operate to defeat any constitutional measure of governmental control enacted by the sovereign will. It is, of course, possible that any citizen may be maliciously and falsely accused of crime, and be arrested and imprisoned in consequence of such false accusation. Such things have happened. But no one would think of repealing the Code of Criminal Procedure in view of such a possibility; much less shoukl a court, by mere interpretation, annul plain provisions of the statute, merely because the statute _ is severe in its requirements, or may possibly he used for purposes of 'oppression in exceptional cases. But counsel further say that this statute cannot apply to any nuisance in a drug store kept by a licensed druggist because it might happen — although it did not in this case — that a druggist whose liquors and premises are seized under a search warrant would necessarily be compelled to await the trial and final judgment before he could have an opportunity to apply to the court for a restoration of his property. If this is the true interpretation to be placed upon the statute, it might certainly, in exceptional cases of abuse, operate harshly, and perhaps oppressively; but, if it did so operate, we are clear that this would be a matter for legislative consideration and correction. It is our opinion, however, that no such vexatious delay in applying for the restoration of the property is necessary in any case. In cases arising under this statute, where property is seized and held by an officer under a search warrant, the officer so holding the property acts entirely under the instructions of the court .sitting in an equity case. Actions brought under section 7605
Concurrence Opinion
I concur in the result, but, as to the last point, not upon the ground stated in the majority opinion. I do not believe it was ever intended by the legislature that a court should inquire into the truth of the averments contained in the affidavit upon which the warrant for search and seizure of property and premises is based until the final hearing. It is clear that the fact thus involved must be the controlling fact in the main case every time; and if this fact can be determined upon motion to discharge the property or premises seized, then, in effect, the case can always be tried upon affidavits. True, these actions to abate nuisances are in courts of equity, but the procedure is detailed with particularity. The statute is careful to point out how premises may be released. I think that method exclusive. The officer is not directed to seize and hold property until the further order of the court, but “to abide the final judgment in the action.” When the provisions prescribed by the statute have been fully met, the result announced by the statute must follow. I am aware that this construction makes the statute exceedingly drastic, hut I cannot find that any constitutional guaranty is violated.