Sawyer v. Frank

McClain, J. -This case was submitted to the court — 342 — on an agreed statement of facts, from which it appears that defendant Frank is engaged in the business of running a restaurant on the premises described, leased by him for that purpose from defendant Richardson, and that Frank has not violated the liquor law in conducting his restaurant nor otherwise unless the following facts constitute such violation: That Frank serves to his patrons at the above-described premises intoxicating liquors, to wit, whisky, wine, beer, etc., to whomsoever orders and pays for the same as hereinafter set forth; that no liquor of any kind is kept in stock in the above premises or at any other place by said defendant for sale or otherwise; that whenever any patron of the restaurant has ordered a meal and then orders liquor to accompany the same, the defendant L. H. Frank calls one of his male employees, and said male employee goes to the customer, who gives said employee his order for liquor, and said customer gives the money for the liquor to said employee, and the defendant can show, subject to objection on the part of the plaintiff as to its being immaterial, irrelevant, and incompetent, that said employee then goes to a saloon nearby (in which the defendant is in no way interested), and purchases said liquor for said patron with the money given to him by said patron, and brings the sabie to the said patron in the restaurant and delivers and serves it to him there. It is further agreed that defendant can also show, subject to objection as to being immaterial, irrelevant, and incompetent, that in all instances the pay for said liquor is collected in advance, and the employee takes the money to said saloon and pays for the liquor there before it is delivered to said patron or patrons, and that' no profit of any kind accrues to the defendant by reason of the foregoing. It is further agreed that for his own protection, and in order to prevent any question being raised as to the legality of such a transaction under the federal law, the defendant L. II. Frank keeps a federal — 343 — license or liquor stamp for the sale of intoxicating liquors at retail posted in his said place of business. It is further stipulated, subject to above objection, that defendant’s evidence shows that said patrons are not, so far as the witnesses to that effect know, within the classes to whom the sale, dispensing, or giving of intoxicating liquors is prohibited by law. In Code, section 2382 (which is now amended by the addition of provisions not necessary here to be considered, constituting Code Supp. 1907, section 2382), may be found by elimination of provisions of the section not applicable to the present discussion, the following provision: “No one by himself, clerk, servant, employee, or agent shall for himself or any person else, directly or indirectly, or upon any pretense or by any device, manufacture, sell, exchange, barter, dispense, give in consideration of the purchase of any property or of any services or in the evasion of the statute or keep for sale any intoxicating liquors, ... or own, keep or be in any way concerned, engaged or employed in owning or keeping any intoxicating liquor with intent to violate any provision of this chapter, or authorize or permit the same to be done.” In Code, section 2384, it is provided that: “Whoever shall erect, establish, continue, or use any building, erection or place for any of the purposes prohibited” in the section above quoted “is guilty of a nuisance, . . . and the building, erection or place or the ground itself in or upon which such unlawful manufacture or sale with the intent to sell, use, or give away said liquors is carried on or continued or exists . . . are also declared a nuisance.” Such a nuisance may be enjoined in an action in equity. Code, section 2405. — 344 — i intoxicating liquors: nmsanee: restaurant keepers. — 343 — I. From the stipulation of facts as above, quoted, it appears that defendant Frank, in conducting the restaurant, and as a part of his business, through his regular employees, dispenses liquor to his patrons whenever de — 344 — sired by them to be drunk on the premises in connection with their meals, and thereby he maintains a nuiganeg which the court in a proper ac-The charge of maintaintion should enjoin ing a nuisance, as described in the statutory provisions above referred to, does not necessarily involve either the selling or the keeping for sale of intoxicating liquors. The provision extends to the dispensing of such liquors and the use of the word “dispense” in the alternative with “manufacture, sell, exchange, barter” plainly indicates that it is not intended to describe an- act which is included in selling, but, on the contrary, that the word is used to describe an independent and distinct method of being concerned in the disposal of such liquors. It does not seem material to us that defendant dispenses liquors only to those who have previously ordered and paid the money for such liquors as they desire, or that said defendant procures the liquors thus desiréd from a mulct saloon where sales of liquors are authorized and furnishes them to his patrons as thus ordered and procured. To hold that the defendant may thus furnish liquors to patrons on his premises would, we think, countenance a plain evasion of the intent and provision of the statute. Prior to the enactment of the mulct law, it would have been impossible for anyone to thus procure and furnish intoxicating liquors. Under the mulct law the method of conducting a place where liquor may be lawfully furnished is strictly regulated with the evident intent that the place where liquors may be thus procured shall not be provided with chairs or benches, and that there shall be no music or other form of entertainment in such place. Code, section 2M8. If liquors may be dispensed in the method pursued by defendant Frank, then persons who desire to procure for immediate consumption on the premises where procured any intoxicating liquors may do so without any of the restrictions as to the method of — 345 — conducting the place which are imposed by the mulct law. We think no such evasion of the statute can be countenanced. 2. . agency. II. It is argued by counsel for appellee that the employees of defendant Frank, when requested by patrons of the restaurant to procure intoxicating liquors for which money is furnished them, are the agents or emp£0yeeg 0£ patTOns for that purpose, and not the employees of Frank. The stipulation of facts does not justify this construction. It is clear under the statement that if an employee should misappropriate money thus furnished to him, Frank would 'be' liable therefor. It is a part of the business which Frank is conducting to furnish liquors to his patrons when they pursue the method provided for the purpose, and his employees are assisting him under his direction and authority to carry on his business in this manner. III. The argument for appellee is directed principally to a discussion of the question as to where the sale of the liquor to the patron takes place and by whom it is made. This discussion is wholly irrelevant to the case as we view it. The thing complained of in this action is the conduct of defendant Frank in maintaining a place which constitutes a nuisance, and, as already indicated, a place in which intoxicating liquors are dispensed is maintained as a nuisance, unless it is a mulct saloon conducted in compliance with law or a pharmacy where liquors are -sold in compliance with provisions relating to permits which need not be here quoted. It occurs to us that there are no other places where intoxicating liquors may be lawfully dispensed to retail purchasers. We are not concerned with questions as to whether a saloon keeper may deliver liquors purchased in his saloon at some other place, or whether one person may, as agent for another in a particular instance, and not in pursuance of a regular course of business, lawfully procure liquor for such other person in a — 346 — saloon. We simply hold that defendant Frank, carrying on the business of dispensing liquor to patrons in his restaurant in pursuance of a general course of business, was maintaining a nuisance. IV. Cases relied on for appellee are not in point. Many of them relate to where a sale takes place. Others bear on the question whether it is unlawful for one person to act for another in a particular instance in the purchase of liquor at a mulct saloon, under circumstances which would render lawful the - sale to the principal. Of the latter class is State v. Smith, 135 Iowa, 523, in which this court held that the crime of aiding in the unlawful delivery and distribution of intoxicating liquors was not committed by one who in a particular instance procured such liquor for a minor at his request. In Goodrich v. Wheeler, 145 Iowa, 289, the person held guilty of contempt in violating an injunction was the person who left a case of beer at his room to be called for by a purchaser. The case was one, therefore, which involved the question of unlawful sale. V. Something is said in argument as to whether the furnishing of intoxicating liquors by defendant Frank to his patrons was of pecuniary benefit to said defendant. It seems to us this is an immaterial question; but, if it were material, it would be plain from the stipulation that while defendant Frank realizes no profit out of furnishing the liquors, he is in fact conducting his restaurant as a matter of profit, and that the furnishing of liquors is incident to 'his business as he is conducting it. It must be clear, we think, that he is attempting to realize some pecuniary profit or advantage from conducting his business in this manner. If he attracts patrons who would not otherwise resort to his restaurant, he must be presumed to derive an advantage from furnishing meals which he would not otherwise furnish, although he derives — 347 — no immediate profit from furnishing the intoxicating liquors, which accompany the meals. We reach the conclusion that the facts shown in the stipulation establish the maintenance of a nuisance, - and that an injunction should have been granted. The decree of the lower court is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion. Reversed and remanded.