Elwood v. Price

Robinson, J. 1. Intoxicating liquors : illegal sales by-registered pharmacist: knowledge: evidence. — I. Defendant’s permit to sell was issued on the eighteenth day of June, 1886. The evidence convinces us that intoxicating liquors have been sold in defendant’s place of business for years contrary to law. Most of the sales proven were made after the eighteenth day of June, aforesaid. Sales were made frequently, and to numerous persons, including minors and persons in the habit of becoming intoxicated, for use as a beverage. The violations of law sho wn were gross and persistent. We do not understand counsel for appellant to seriously deny that this is true. If we understand their claim, it is that, although there may have been illegal sales, yet they were made without the knowledge or consent, and contrary to the instructions, of defendant, by a clerk named Meyers. The evidence shows that more illegal sales were made by Meyers than by defendant, but it also shows that the business was mainly conducted under the personal supervision of defendant. Much of the liquor sold was drank on the premises. In some cases applications for liquors were made on forms approved by the commissioners of pharmacy ; but a large share of these were signed with fictitious names, although the persons so signing were well known. In a number of cases two or more sales of from half a pint to a pint of whisky in each case were 230 made to the same person on the same day. In several instances larger quantities were sold. The illegal business was carried on in such a manner that no one in the position occupied by defendant, possessed of ordinary intelligence and business tact, could have been ignorant of it, or of such facts as would have charged him with notice. The monthly reports which were made and filed with the county auditor contained abundant information to put defendant upon inquiry, if he was really ignorant of the facts. But we are satisfied, not only that he knew of the illegal sales, but that he made some of them. It is true that he swears that he never permitted any one to drink liquors on the premises, and that he never kept for sale, nor sold contrary to law, any intoxcating liquors during the time in question, and that he did not know of such sales by Meyers. His testimony is, however, contradicted by a very decided preponderance of the evidence. _/nui ’ saneé-1 nignor cessaII. Counsel for appellant state that “the principal question to be determined is, did the nuisance sought to be enjoined exist at the commencement of this action?” They insist that before the decree sought by plaintiff can be rendered it must be made to appear that the nuisance actually existed when the action was commenced, or that it is being maintained. Section 12, chapter 143, Acts Twentieth General Assembly, contains this language : “Any citizen of the county where such nuisance exists or is kept or maintained may maintain an action in equity to abate or perpetually enjoin the same.” Section 1, chapter 66, Acts Twenty-first General Assembly, makes it the duty of the county attorney, “when any such nuisance exists,” to prosecute an action for its abatement. Section 2 of the same chapter makes it the duty of the proper court or judge in certain cases to grant an injunction, if it be made to appear “that such nuisance actually exists, or is being maintained.” It is argued, from these provisions that it was improper to issue an injunction, or render a decree of abatement in this case, because it is alleged that the 231 evidence shows no illegal sale made after the nineteenth day of February, 1887, and therefore that no nuisance is shown to have existed on the sixth day of the next month, when this action was commenced. The case of Shear v. Brinkman, 72 Iowa, 698, is cited by counsel as supporting their views. But the facts in that case were that the illegal business was carried on in leased property, and that the owner, upon being informed that illegal sales of liquors were being made, caused the tenant to be notified that he must not sell any liquor in the leased building, and he ceased to make such sales prior to the commencement of the suit. New leases were made, but no illegal sales were shown to have been made under the new leases, nor after the tenant stopped selling under the old one. There was nothing tending to show a want of good faith in these proceedings. The facts justified the court in finding that the illegal traffic had been abandoned, and the nuisance abated, before the action was commenced. The same principle was involved in the case of Drake v. Kingsbaker, 72 Iowa, 441. In this case defendant does not claim to have changed his business, but denies that it was or is illegal. The only change shown is the discharge of Meyers on the nineteenth day of February, 1887. In the absence of satisfactory evidence we cannot presume that an illegal business which had been carried on for years was abandoned two weeks before the petition was filed, because a clerk who had assisted, in the business was at that time discharged. There is, however, direct evidence that illegal sales were made by defendant after Meyers left, and after this action was commenced. The facts of this case bring it within the rule announced in Judge v. Kribs, 71 Iowa, 183. We conclude that the decree of the district court is sustained by the evidence. It is therefore Appiejeed.