Judge v. O'Connor

Robinson, J. The petition alleges that Jordan carried on the business of keeping with intent'to sell, and selling, intoxicating liquors as a beverage, contrary to law, in a saloon situated on a lot described in the city of Lyons ; that said business has been carried on for the last three years, with the knowledge of O ’ Connor; that O’Connor is the owner of the property; that on the sec-', ond day of January, 1887, Jordan caused the intoxication of the husband of plaintiff by selling to him in said saloon intoxicating liquor; that such sale was contrary to law ; that in consequence of such intoxication said husband fell, and lay for a long time in the street, and was badly frozen ; that, as a result of such freezing, one of the legs of the husband was amputated, and he was permanently disabled, and is wholly unable to perform any labor ; that, in consequence of the said unlawful act of Jordan, the plaintiff is wholly deprived of her means of support. She demands judgment against Jordan, and asks that it be made a lien on the saloon premises. ‘liquors: ‘ unlawful sales: liability ot propertykmmíecbe aud consent. I. O’Connor demurred to the petition on the ground that it “ fails to state that he consented to the unlawful business aforesaid, and consented to the sale in the petition complained of.” . . t , . Was it necessary for plaintiff, m making a . . , .. . prima-facie case as against the property, †0 show, and, therefore, to allege, that O’Connor not only knew that the business carried on in it was unlawful, but also that he had consented to it? Section three, chapter forty-seven, Acts 1862, provided that for judgments rendered against any person for violation of the laws of the state relating to the suppression of intemperance, the property “used for that 'purpose with the consent or knowledge of the owner thereof, or his agent,” should be liable. The case of Polk County v. Hierb, 37 Iowa, 364, arose under that [168] section, and the language of the opinion in that case gives color to the claim of appellant that it was then sufficient to show either knowledge or consent of the property-owner. The provisions of the section we have considered were incorporated in section 1558 of the Co,de. But that section as printed authorized a lien on the premises only when they had' been used for the unlawful purpose with the “ consent and knowledge” of the owner. Cobleigh v. McBride, 45 Iowa, 116 ; Meyers v. Kirt, 57 Iowa, 421, and 64 Iowa, 27 ; Loan v. Etzel 62 Iowa, 429. The question now under consideration arises under section 1558 of the Code, as amended by seótion twelve, chapter sixty-six, Acts Twenty-first General Assembly. Its language, so far as is material to this inquiry, is as follows: “For all fines and costs assessed, or judgments rendered, of any kind, against any person, for any violation of the provisions of this chapter, or costs paid by the county on account of such violations, the personal and real property, except the homestead and the personal property of such person which is exempt from execution, as well as the premises and property, personal or real, occupied and used for the purpose, with the knowledge of the owner thereof or his agent, by the person manufacturing or selling, or keeping with intent to sell, intoxicating liquors contrary to law, shall be liable; and all such fines, costs and judgments shall be a lien on such real estate until paid ; ■* * * and evidence of the general reputation of the place shall be admissible on the question of knowledge, and written notice given him or his agent by any citizen of the county shall be sufficient to charge the owner with knowledge under the provisions of this section.” It is evident that the amendment of 1886 made a radical change in the law. It is no longer necessary to show consent of the owner to the unlawful use of his property before it can be made liable. It is sufficient for plaintiff, in order to make out a prima-facie case for holding the property liable, to show that the unlawful use was with the knowledge of the owner. If, notwithstanding that fact, the property is not liable, tho [169] burden of showing it is on the owner: As having some relevancy to this case, see Drake v. Kingsbaker, 72 Iowa, 441. As being a case in point, see Judge v. Flournoy, ante, p. 164. g _.___. edge 0fnpal-ticuiar sale, II. Is it necessary to show that the owner had knowledge of the illegal sale which caused the injury in question, before his property can be made liable? We think it is not. Under the provisions of section 1558 of the Code, as amended, the knowledge to which the owner is entitled may be shown by proving the general reputation of the place, or by proving that a written notice by any citizen of the county was given to him or his agent. But -the property cannot be made liable for an illegal sale of which the owner had neither actual nor constructive knowledge until after it was made. We think it was the legislative intent to make the property liable for fines, costs and judgments assessed or rendered for violations of the laws in question, which occur after the owner is chargeable with knowledge that his property is being used for the prohibited purpose. In our opinion the court erred in sustaining the demurrer. Reversed.