Opinion
No. 6657.
March 27, 1940.
APPEAL from the District Court of the Eleventh Judicial District, for Twin Falls County. Hon. T. Bailey Lee, Judge.
Suit to abate a nuisance. Judgment for plaintiff. Affirmed with directions.
Chapman, Chapman, Lionel T. Campbell and Paul S. Boyd, for Appellants.
The evidence in this case is insufficient to prove the establishment or operation of a nuisance by appellants within the meaning of the word "nuisance." ( Bailey v. Kelly, 93 Kan. 723, 145 P. 556, L.R.A. 1916D, 1220; United States v. Cohen, (D.C. Mo.) 268 Fed. 420, 422; Wynkoop v. City of Hagerstown, 159 Md. 194, 150 Atl. 447, 450.)
Evidence of sporadic or isolated sales of intoxicating liquor is insufficient to prove the establishment or operation of a nuisance. ( State v. Maguire, 31 Idaho 24, 169 P. 175; United States v. Cohen, supra; Wynkoop v. City of Hagerstown, supra; United States v. Butler, (D.C. New York) 278 Fed. 677.)
The legislature cannot confer jurisdiction upon equity to enforce criminal statutes, or to restrain the prosecution or the commission of criminal offenses, or to restrain or prevent crime, or to enforce a moral duty, or where it does not appear that the plaintiff has no plain, speedy or adequate remedy at law. ( McGinness v. Friedman, 2 Idaho 393, 17 P. 635; Washington etc. R. R. Co. v. Coeur d'Alene etc. Co., 2 Idaho 580, 21 P. 562; Evans v. District Court, 47 Idaho 267, 275 Pac. 99.)
J.W. Taylor, Attorney General, and R.W. Beckwith, Assistant Attorney General, for Respondent.
A court of equity has jurisdiction over the abatement and suppression of a nuisance, either public or private, which the court may exercise, notwithstanding the nuisance is made an indictable offense by statute. ( State v. Sawtooth Men's Club, 59 Idaho 616, 85 P.2d 695.)
Evidence of two sales of liquor on a certain date, in a certain place with further evidence as to the place being maintained for, the keeping and sale of liquor is sufficient to prove the establishment and operation of a nuisance. (Chap. 103, 1935 Sess. Laws; State v. Sawtooth Men's Club, supra.)
Appellant Maud Waldridge owned certain premises located in Twin Falls county about a mile west of Buhl on U.S. Highway No. 30. Appellants Harry Snoderly and Charles Inderwies operated thereon a "Bavarian Beer Garden." January 10, 1938, the State of Idaho filed a complaint in the district court of that county, under the provisions of sections 57 and 59 of the Idaho Liquor Control Act (Sess. Laws 1935, chap. 103, p. 222) charging appellants Snoderly and Inderwies with operating (with the approval, consent and authorization of appellant Waldridge) a public nuisance contrary to and in violation of the provisions of the statute, and praying such premises be adjudged and decreed to be a nuisance and that appellants be enjoined and restrained from so using, operating or occupying the same, and that the premises be abated and locked to prevent such further use of the premises by appellants, their agents, representatives, assigns or grantees for a period of a year from the date of the decree.
Respondent annexed to its complaint an application for a temporary injunction, supporting the same by affidavits. Upon the application and supporting affidavits an order to show cause issued, returnable January 14, 1938. On the return day appellants moved to strike the supporting affidavits and also demurred to the complaint. February 3, 1938, the motion to strike was denied and the demurrer overruled. March 30, 1938, the state moved to vacate the order to show cause, which motion was granted April 5, 1938. April 22, 1938, appellants filed an answer to the complaint and the cause was thereupon tried by the court. August 30, 1938, findings of fact and conclusions of law were made and judgment signed. October 8, 1938, the findings and conclusions were filed and the judgment entered, adjudging the "Bavarian Beer Garden" to be a public nuisance and restraining and enjoining appellants from further operating and maintaining it. It was also adjudged and decreed that the premises be locked for a period of a year. The appeal is from the judgment.
Appellants earnestly contend "the legislature cannot confer jurisdiction upon equity to enforce criminal statutes, or to restrain the prosecution or the commission of criminal offenses, or to restrain or prevent crime, or to enforce a moral duty, or where it does not appear that the plaintiff has no plain, speedy or adequate remedy at law." We passed upon substantially the same contentions in State v. Sawtooth Men's Club, 59 Idaho 616, 623, 85 P.2d 695. We held:
"Jurisdiction of a court of equity over the abatement and suppression of a nuisance, either public or private, is settled, and may be exercised although the nuisance is made by statute an indictable offense."
And further:
" 'The ground of this jurisdiction in cases of purpresture, as well as of public nuisances, is the ability of courts of equity to give a more speedy, effectual and permanent remedy than can be had at law. . . . This is a salutary jurisdiction, especially where a nuisance affects the health, morals or safety of the community.' "
It is next contended "evidence of sporadic or isolated sales of intoxicating liquor is insufficient to prove the establishment or operation of a nuisance," and that "there must be a continuous offense or recurrent acts in order to constitute a nuisance; that is to say, no single act or two single acts are in themselves sufficient to constitute a public nuisance, but in order to constitute a public offense the place sought to be abated must be habitually, continuously, and recurrently used for the unlawful sale of intoxicating liquors." Similar contentions were made in State v. Sawtooth, Men's Club, supra (p. 626). In disposing of the contentions we pointed out:
"It may be conceded that the cases are not altogether uniform upon the question as to whether proceedings to abate a nuisance can be sustained upon the proof of a single sale or act in violation of the statute. It has been held and we believe the weight of authority sustains the proposition that the test of a statutory nuisance, under a statute not prescribing the number of violations or the length of time violation must continue in order to constitute the offense, is not the number of sales made or the length of time liquor is kept upon the premises, but is whether the place is maintained for the keeping and sale of liquor in the sense of the statute, . . . ."
It is further contended the evidence of three peace officers "positively contradicted by seven reputable, substantial and permanent residents of the vicinity of these premises," is not sufficient to support the judgment. It is true a number of witnesses testified the general reputation of the Bavarian Beer Garden was "good." On the other hand, three witnesses (as stated by appellants) testified the general reputation of the "Garden" as "being a place where alcoholic liquors are sold, kept with intent to sell or given away" was "bad." In addition, there is evidence of a "knifing scrape" which "started inside and wound up outside of the 'Garden,' " and also of another fracas — "Some of the boys from Buhl was out there [the Garden] and they had a little fracas. When I [Chief of Police of Buhl] got out there it was about over and I never went inside that night."
This court has uniformly held the findings and judgment of a trial court made upon conflicting evidence will not be disturbed, where (as in the case at bar) there is substantial evidence to support them. ( Harp v. Stonebraker, 57 Idaho 434, 65 P.2d 766; Bachman v. Reynolds Irr. Dist., 56 Idaho 507, 55 P.2d 1314; Mitchell v. Atwood, 55 Idaho 772, 47 P.2d 680; Duthweiler v. Hanson, 54 Idaho 46, 28 P.2d 210; Intermountain Assn. v. N.H. Hallstrom Coal Co., 53 Idaho 151, 22 P.2d 686; Markham v. Davy, 42 Idaho 545, 247 P. 12; Black v. Black, 33 Idaho 226, 191 P. 353; Lisenby v. Intermountain State Bank, 33 Idaho 101, 190 P. 355; Consolidated Interstate-Callahan Min. Co. v. Morton, 32 Idaho 671, 187 P. 791; Fleming v. Benson, 32 Idaho 103, 178 Pac. 482; Brown v. Hardin, 31 Idaho 112, 169 P. 293; Hemphill v. Moy, 31 Idaho 66, 169 P. 288; Hardy v. Ward, 31 Idaho 1, 168 Pac. 1075; Casady v. Stuart, 29 Idaho 714, 161 P. 1026; Miller v. Blunck, 24 Idaho 234, 133 P. 383; Salisbury v. Spofford, 22 Idaho 393, 126 P. 400; Tomsche v. Hummel, 18 Idaho 23, 108 P. 343; Hutchinson v. Watson, Slough Ditch Co., 16 Idaho 484, 101 P. 1059; 133 Am. St. 125; City of Pocatello v. Bass, 15 Idaho 1, 96 P. 120; Miller v. Donovan, 13 Idaho 735, 92 P. 991, 13 Ann. Cas. 259; Heckman v. Espey, 12 Idaho 755, 88 P. 80; Spaulding v. Coeur d'Alene Ry. etc. Co., 5 Idaho 528, 51 P. 408.) This rules applies to a suit in equity as well as an action at law. ( Hagan v. Clyde, 60 Idaho 785, 97 P.2d 400, 402; Portland C. L. Co. v. Hansen L. F. Co., 43 Idaho 343, 251 P. 1051; Gould v. Hill, 43 Idaho 93, 251 Pac. 167; Wooten v. Dahlquist, 42 Idaho 121, 244 P. 407; Lus v. Pecararo, 41 Idaho 425, 238 P. 1021; Clinton. v. Utah Const. Co., 40 Idaho 659, 237 P. 427; Bedal v. Johnson, 37 Idaho 359, 218 P. 641; Viel v. Summers, 35 Idaho 182, 209 P. 454; Davenport v. Burke, 30 Idaho 599, 167 P. 481; Wolf v. Eagleson, 29 Idaho 177, 157 P. 1122; Darry v. Cox, 28 Idaho 519, 155 P. 660; Jones v. Vanausdeln, 28 Idaho 743, 156 P. 615; Smith v. Faris-Kesl Const. Co., 27 Idaho 407, 150 P. 25; Brown v. Grubb, 23 Idaho 537, 130 P. 1073.)
Other contentions are made, but as they are neither argued nor briefed, this court will not consider them. ( Carey v. Lafferty, 59 Idaho 578, 584, 86 P.2d 168; Louk v. Patten, 58 Idaho 334, 343, 73 P.2d 949; Thompson v. Walker, 56 Idaho 461, 464, 55 P.2d 1300; Crowley v. Idaho Industrial Training School, 53 Idaho 606, 26 P.2d 180; Winton Lumber Co. v. Kootenai County, 53 Idaho 539, 26 P.2d 124; Harris v. Chapman, 51 Idaho 283, 5 P.2d 733; Merchants Trust Co. v. Davis, 49 Idaho 494, 290 P. 383; Estate of Fisher, 47 Idaho 668, 279 P. 291; McGrath v. West End Orchard Land Co., 43 Idaho 255, 251 P. 623; Farrar v. Parrish, 42 Idaho 451, 245 Pac. 934; Nelson v. Johnson, 41 Idaho 703, 243 P. 649; Hardy v. Butler, 39 Idaho 99, 226 P. 669; Davenport v. Burke, 27 Idaho 464, 149 P. 511.) Moreover, appellants have the burden of showing the existence of error prejudicial to them. ( Judy v. Reilly Atkinson Co., Inc., 59 Idaho 752, 87 P.2d 451.)
Judgment affirmed with directions to the trial court to enter an order enforcing its judgment closing and locking the "Garden" for a period of a year from and after the entry of the order. Costs awarded to respondent.
Ailshie, C.J., and Budge and Givens, JJ., concur.
I concur in the foregoing opinion with the exception of that portion which directs the trial court "to enter an order enforcing its judgment closing and locking 'The Garden' for a period of a year from and after the entry of the order."
It must be borne in mind this is not a criminal case, but is a civil suit to abate a nuisance. The remedy of padlocking premises, which is being conducted as a nuisance, is not intended as punishment of criminal conduct, but is for the purpose of abating the nuisance. When this has been accomplished the purpose of the statute providing for it has been carried out. As pointed out in the foregoing opinion, the findings of fact were made August 30, 1938. The decree was rendered October 8, 1938, and an order of supersedeas was entered. We have no information with respect to how the business of the Bavarian Beer Gardens has been conducted since the findings of fact were made. There is nothing before us to justify an assumption that the nuisance sought to be abated still exists. If it does not exist, there is no occasion for invoking the remedy of abatement. The decree should be affirmed and the cause should be remanded to the trial court for such further proceedings as the facts before it will justify.