5 S.D. 39 | S.D. | 1894
Lead Opinion
The relief demanded in this action is that a certain brick building, known as the “Sioux Falls Brewery,” situated on lots 12, 13 and 14, of block 26, of Brookings & Edmunds’ Sioux Palls, in the city of Sioux Falls, erected by the Sioux Falls Brewing Company, a corporation, be declared a common nuisance; and that the same be abated and perpetually enjoined; and that the defendants Levenger and Kauffman, their agents and servants, be restrained and enjoined from hereafter keeping for sale, or selling, any intoxicating liquors at the place aforesaid, contrary to the provisions of Sections 1 and 13 of Chapter 101 of the Laws of 1890. The answer was a general denial, and, upon the issues thus raised, the cause was tried to the court, without a jury. The court found, in effect, that William A. Wilkes, the person who brought the action in behalf of the state, was at the time a citizen of Minnehaha county, in said state; that the premises described in the complaint were at the commencement of this action, and now are, a brewery, and a place where intoxicating liquor, to-wit, beer, was and is kept for sale; barter and delivery as a beverage; that the defendant, Moriz Levinger, is the president of the Sioux Falls Brewing Co; and that he did during the month of September, 1890, and at divers times subsequent thereto, sell and deliver intoxicating liquors, to-wit, beer, as a beverage, within the building and upon the premises described in the
Section 6, Chapter 101, Laws of 1890, provides that “all spirituous, malt, vinous, fermented or other intoxicating liquors or mixtures thereof, by whatever name called, that will produce intoxication, shall be considered and held to be ‘intoxicating liquors,’ within the meaning of this act.” Section 13: “All places where intoxicating liquors are sold; bartered or given away in violation of any of the provisions of this act, 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, barter or delivery in violation of this act, are hereby declared to be common nuisances; and if the existence of such nuisance be established either in a criminal or equitable action, * * * the sheriff, his deputy or under sheriff, * * of the county where the same is located shall be directed to shut up and abate such place by taking possession thereof. * * * The finding of such intoxicating liquor or liquors upon such premises shall be prima facie evidence of the existence of the nuisance complained of. * * *” Section 22: “* * * In actions or proceedings for the abatement of nuisances under this act, evidence of the general reputation of the place designated in the complaint shall be admissible for the purpose of proving the existence of such nuisance; and in all cases other than those where intoxicating liquor is lawfully sold by virtue of the provisions of this act, the fact that any person engaged in any kind of business has or keeps posted in or about his place of business a receipt or stamp showing payment of the special tax levied under the laws of the United States upon the business of selling distilled malt or fermented liquors, or the holding of a license from the government of the United States
The assignments of error relate to all the findings of fact and conclusions of law predicated thereon. As a consideration of many of the questions discussed in the briefs submitted by the respective counsel will not be essential, in our opinion, to a determination of this appeal, we will address our inquiry to the questions raised concerning the sufficiency of the evidence to sustain the findings of fact and conclusions of law upon which a judgment and decree in favor of the plaintiff were based. Sheriff Sundback testified, in substance, that in the month of October, 1890, he served the papers in this case upon the defendant Levinger, at the place known as the “Sioux Falls Brewery,” and that said Levinger seemed to be in charge of the premises. In response to a request made by plaintiff’s counsel to state what he found upon the premises, he submitted the following schedule or invoice, which seems to have been admitted without objection: A. “2145-barrel hogsheads, 945 barrels; 10 20-barrel hogsheads, 200 barrels; 10 80-barrel hogsheads, 800 barrels; 8 50 barrel hogsheads, 400 barrels; 10 40-barrel hogsheads, 400 barrels; 8,000 bushels malt; 4,700 bushels barley; 600 beer kegs; 175 beer kegs; 1,500 tons ice; 10 bales hops; 5 tons corn meal. Q. What was that, Mr. Sundback? A. It was beer. ” Witness stated that he could not tell what was being done on the premises from personal knowledge; but, from what he saw and what he £ urmised, he judged that they were brewing beer; and that it was his impression that they were still so engaged, but he could not swear to that, although he had seen Mr. Levinger there from time to time until the date of the trial. F. C. Smith testified that he was on the premises in question about the 6th of last May, in company writh a man who got a keg of beer and put it in the buggy, and drove off with it; he did not know
It will be noticed that our statute does not by its name define “beer” as an intoxicating liquor, and prohibit its sale as a beverage; and, in our opinion, proof that the defendant simply sold beer is not, under such statute, sufficient to sustain a finding that he sold intoxicating liquor, for the reason that “beer” is a generic term, and is applied indiscriminately to malt beer, as well as to beer which is made from various extracts, and from the roots-aiid other parts of certain plants and trees; and the court before whom the case was tried could not know officially that the beer sold to the witness, or kept for sale, by the defendant, was a malt or intoxicating liquor, without evidence of that fact. Blatz v. Rohrbach, 116 N. Y. 450, 22 N. E. 1019. Counsel for the plaintiff contends that the term “beer” is uniformly held by the courts to be an intoxicating liquor, and, in support of such contention, directs our attention to 1.1 Am. & Eng. Enc. Law, pp. 579, 580, and cases there cited. We will consequently examine such authorities, for the purpose of determining whether they will sustain the position taken and
The evidence in this case is silent as to the purpose for which the beer was bought or sold, and there are no circumstances that will, in our opinion, justify an inference that it was used as a beverage. Two witnesses testified that they bought beer, and one of them said he drank beer. This should have been followed up by evidence as to its quality and effect, and the purposes for which it was bought and used. There is nothing to indicate that the witnesses were reluctant, and it is fair to presume that they were in possession of material facts, and willing to tell the whole truth. As to what was found by the officer upon the premises, the evidence is certainly uncertain and vague. The single isolated sentence, “It was beer,” is the only evidence upon which to base a conclusion that he found intoxicating liquor, and it is difficult to determine to what that statement relates. If the witness had reference to the schedule offered in evidence, in which he itemized corn meal, hops, ice, kegs, barrels, hogsheads, malt, and barley, and intended to characterize these various commodities as beer, we must conclude that the evidence is of but little value in determining the issues in this case. Under a statute which does not specifically name the liquors the sale of which, as a bever-age it prohibits, but considers and holds all liquors intoxicating which are spirituous, malt, vinous, or fermented, as well as all mixtures thereof which will produce intoxication, we are disposed to believe that the malt or intoxicating qualities of beer, when in question, should be shown by the evidence, the
Concurrence Opinion
I concur in the decision of this case. The statute of the state known as the “Prohibitory Law” is, so far as this case is concerned, directed against the sale, as a beverage, of “any spirituous, malt, vinous, fermented, or other intoxicating liquors.” As one of the means of enforcing such prohibition, section 13 makes the place where such intoxicating liquors are sold or kept for sale a common nuisance. It is plain that, to convict any place as a nuisance under this section, liquors of the prohibited class must be shown to have been sold or kept for sale at such place. The record is certified as containing all the evidence introduced upon the trial; so that the findings of fact of the trial court must stand upon the evidence, unaided by any presumption of sufficiency. The evidence of Sundback is that he found on the premises certain hogsheads and beer kegs, and malt, barley, ice, hops, and corn meal. It is not shown whether the hogsheads and kegs were empty or filled, or that they appeared to contain any contents whatever. Smith bought a “keg of beer,” and ’‘used” some of the contents. Whether he drank it, or used it in some other way, or for some other purpose than as a beverage, is not attempted to be shown. Gushard “got some beer,” — “a keg of beer” What he got it for, or what he did with it, is