150 P. 17 | Idaho | 1915
— This is an appeal from an order granting an injunction or restraining order, and also from an order
“Sec. 2. All places in a prohibition district of the state of Idaho where intoxicating liquors are sold, furnished, delivered, given away, or otherwise disposed of in violation of law; or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage; or where intoxicating liquors are kept for sale, delivery or disposition in violation of law, and all intoxicating liquors, vessels, glasses, kegs, pumps, bars and other property kept in and used in maintaining such a place, are hereby declared to be common nuisances, and every person who maintains or assists in maintaining such common nuisance is guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not less than twenty-five dollars ($25), nor more than five hundred dollars ($500), or by imprisonment in the county jail for not less than ten (10) days nor more than six (6) months, or by both such fine and imprisonment for each offense. ’ ’
“Sec. 4. The prosecuting attorney of any county where such a nuisance, as defined in section 2 of this act, exists, or is kept or maintained, may maintain an action in the district court of such county in the name of the state of Idaho to abate and perpetually enjoin the same. The injunction shall be granted at the commencement of the action and no bond shall be required. Any person violating the terms of such injunction shall be punished for contempt by a fine of not less than one hundred dollars ($100), nor more than five hundred dollars ($500), or by imprisonment in the county jail for not less than thirty (30) days nor more than six (6) months, in the discretion of the court or judge thereof.”
It is alleged in the complaint that the defendant, Kasiska, was the owner and in the possession of what is known as the
Said complaint was duly verified by the prosecuting attorney of said county, and the judge of said district, after considering said complaint, made the following order:
“It is therefore ordered by me, J. J. Guheen, judge of the district court of the fifth judicial district of the state of Idaho, in and for the county of Bannock, that until further order in the premises, you, the said W. F. Kasiska, and all your counselors, attorneys, solicitors, employees and agents, and all others acting in aid or assistance of you, and each and every of you, are hereby restrained and enjoined from keeping or permitting to be opened the Bannock Hotel building, situate on lots 1, 2 and 3 in block 487 in the city of Pocatello, county of Bannock, state of Idaho, and from selling, delivering, or otherwise disposing of intoxicating liquors in and about said premises.”
Thereafter a motion was made to dissolve or modify said injunction on several grounds, the first of which was that
This, motion was based on the complaint, affidavits and numerous court records which show that many prosecutions have been made against appellant during the past four years for the illegal sale of intoxicating liquors. The record shows the numerous pleas of guilty entered by the appellant in those cases, the fines assessed and the assurances given by the appellant to the court “upon his honor as a man,” that he would no longer violate the law forbidding the sale of intoxicating liquors, and that there are a number of charges for the illegal sale -of intoxicating liquors now pending against him in said county. The record also shows that about three years ago a criminal judgment was pronounced against the appellant and he paid a fine of $500 assessed against him, and about a year later he again appeared in the district court charged with several separate and distinct violations of the law, and upon pleas of guilty was fined $1,000, and at that time, upon his statement in open court, “upon his honor as a man” that he would no longer violate the intoxicating liquor laws, other indictments then pending against him were dismissed.
The record shows that the appellant is the owner and proprietor and was running said Bannock Hotel, prior to the granting of said injunction, and that said Bannock Hotel has been used as a place for the sale of intoxicating liquors in violation of law. The provisions of sec. 2 of said act were clearly intended to remedy the evil which induced its enactment and its language is broad enough to cover the particular
The guests of the hotel, or many of them, received liquor from the bar whenever they desired, and the hallways of the hotel in the mornings showed a number of empty bottles sitting outside of the different doors. There apparently was not much secrecy in regard to the matter, and it appears that the appellant, regardless of the many fines and his solemn promises made to the court that he would cease the business, was determined to continue the illegal sale of intoxicating liquors and that said hotel premises was the place where he carried on this illegal traffic.
But it is contended by counsel that the injunctive order made closes up the hotel so that the appellant cannot carry on the hotel business in a lawful or legitimate way and thus deprives him of his property without due process of law.
There is nothing in that contention under the facts of this case, since the injunction issued is only temporary and will only continue until the final hearing of the case, unless sooner modified by the court or judge. Under ordinary circumstances the restraining order might appear a little drastic, but when we come to consider the record and the reckless violation of the law by the appellant, we do not think the court erred in granting the injunction as it did, which, no doubt, when the case is heard on its merits will be so modified as to permit a legitimate business to be carried on in that hotel building.
If the guests in a hotel in a prohibition district are to be given the services of a saloon because of their registering at or patronizing the hotel, then the hotel is not a cloak to hide the illegal sale of liquor, but it is a means to an end, an instrumentality inseparably connected with a part of the business of selling liquor. In this view it becomes as much a common nuisance as the room in which the liquor is kept and from whence it is sold.
The definition of common nuisance as given in sec. 2 of said act clearly and unequivocally includes just such places as a hotel which is used in the manner the record shows this
No doubt, if on the final hearing the court should determine and adjudge that the defendant could not use the hotel building for any purpose whatever, it would be the taking of property without due process of law, and that action of the court would be held void. But it is a principle universally recognized that the constitutional guaranty of “due process of law” does not affect the legitimate police power of the state, inasmuch as such power is deemed “due process of law.” When drastic measures are required to enforce the law, such measures may be temporarily used in abating a public nuisance.
The state is not seeking in this action to forfeit the title to said property to the state, and the statute provides for no forfeiture. It simply provides for the abatement of what the legislature considered a moral disease and a nuisance to the public, in the same sense that our health statutes provide for a quarantine against physical disease. The trial judge no doubt arrived at the conclusion that said hotel as managed by the defendant was in and of itself a nuisance which the state ought to abate. It was not the bar-room; it was not the drinking of liquor; it was not the open and notorious violation of the law; it was simply the hotel itself, which from the manner and method of its use became a nuisance within the meaning of see. 2 of said act. Such being the case, the fourteenth amendment to the United States constitution guaranteeing due process of law does not abridge or affect in any way the power of the state to abate such a nuisance as the said hotel is shown to be by the method and manner in which it was conducted.
The orders appealed from are affirmed, with costs in favor of the state.