State v. Collins

74 Vt. 43 | Vt. | 1901

Stafford, J.

The Putnam House, a hotel in the village of Bennington, is owned by Henry W. Putnam, a resident of California, whose interests in the premises are in charge of an agent residing in Bennington. The premises are under lease to Collins, who- has occupied them as an inn, except two rooms which have been occupied by Ewens, a tenant under him, for the unlawful sale and keeping for sale of intoxicating liquor. The unlawful use was known to' Collins. It was not known to Putnam himself, nor to his agent; but his agent had reason to suppose, and did in fact suspect and suppose, that such was the case. No question is made but that the place is one of public resort, nor that it is a common nuisance as to- the keeper; by virtue of V. S. 4512. 'An injunction is sought against all three defendants, Ewens, Collins, and Putnam, their agents, etc., enjoining them from further maintaining or permitting the nuisance. Such a decree was granted in the court of chancery, and therefrom Collins and Putnam have appealed.

Tire owner and all persons interested in the premises, as well as the keeper thereof, may be made parties; and if it is finally adjudged that such common nuisance has been kept and maintained, or suffered to¡ be maintained, they, their servants, agents, lessees, tenants, and assigns, shall be perpetually enjoined from keeping and maintaining such nuisance or suffering it to be maintained in the premises, or any part thereof. Acts 1898, No. 90, § 2.

Has Putnam suffered the nuisance to¡ be maintained? That Collins has is apparent; and the contrary is not asserted. If Putnam is chargeable with what his agent knew, or had reason to know, it is equally clear that he, also, suffered it; for we held in State v. Massey, 72 Vt. 210, 220, 47 Atl. 834, 837, that, if the owner “had reason to suppose that his property was being used for the unlawful purpose, an injunction should be granted against him as well as against the keeper.” It is obvious that the knowledge or notice came to the agent in the present case strictly within the scope of the agency. But it is objected that it should not be imputed to the principal in this proceeding, because, it is said, it is quasi criminal, if not criminal, and fixes a stain upon the property, and upon the owner as well. If the proceedings were regarded as purely civil, it would probably be admitted that knowledge is chargeable; and civil it surely is, being a proceeding in chancery to fix the status of the property, and, if it be found to be a nuisance, to enjoin its further maintenance as such, as against all who may be responsible therefor. That the nuisance may be also a breach of criminal law does not make this proceeding criminal. It moves according to the usual course of chancery proceedings, and contempt of its injunctions are punishable upon common principles. State v. Murphy, 71 Vt. 127, 41 Atl. 1037; V. S. 4528.

And why should not the owner be enjoined in a case like this? He who finds it convenient to control his property through an agent rather than in person, must submit to the inconveniences that accompany the relation. His agent stands in his stead; and if the agent permits the property to become a nuisance, the owner permits it, and ought to be held responsible. If the agent has left the principal in ignorance of the situation, is it not just that the misfortune should fall upon the principal, who- appointed him, rather than upon the public, •which has no voice in his appointment?

Bor the same reason we think there is no substantial variation between the allegation that Putnam knew and consented, and the finding that his agent knew, or had reason to know.

The only point insisted upon by Collins is that as to him the bill made one case and the proof another, in that, it is said, the bill charged him with selling. But an examination of the bill discloses that such was not the charge. It is the only variation pointed out, and no other need be considered.

Decree affirmed, and cause remanded.