Nies v. Anderson

Salinger, J. -I. It is complained that the defendant judge was swayed by passion and prejudice, and maintained a non-judicial attitude towards the defendants and their rights throughout the trial. We have to say that, if any criticism be warranted, it is that the trial judge was utterly too patient. We will not enlarge, beyond saying that Mr. Bevington, of counsel for the defendants, indulged in unceasing objections that seem utterly without warrant, and that he persisted in filling the record to an enormous extent with matters that can throw no possible light on what the proceeding involves for decision. — 329 — i- ^QuoEs^con tempora^y'iu-11® ene? o?1 p¿ma-' effect™'*111101’1011 : 2. Judgment : colexistencíof^: and'pnm^nmt injunction. II. All the defendants were charged a temporary injunction granted on February 16, 1915. C. W. Nies contends that he may not lawfully be punished for violating that injunction, ■ even if h$disobeyed it; because, before this temporary injunction was granted, he had already been permanently enjoined. He claims his case is within the rules of Dickinson v. Eichorn, 78 Iowa 710, and Steyer v. McCauley, 102 Iowa 105. The difficulty is that whether a second injunction shall issue when another is in existence may depend on evidence on whether the first injunction was obtained colorably, — as a device for interfering with the enforcement of the prohibitory law. Had he made due objection to and appealed from the granting of the second injunction, he would have the right to have considered whether the second injunction should have been allowed. But interposing to a charge of contempt for violating an injunction that the injunction should not Iiave keen S'ranted, is a purely collateral at-’l:acl5; UP011 that injunction on the ground that j-j. was error to grant it. We think he is within the rule of Geyer v. Douglass, 85 Iowa 93, that, though the evidence may be insufficient to support the granting of an injunction, that fact does not make the injunction subject to collateral attack. If it be his claim that a temporary injunction is merged in, and its effect destroyed by, a permanent injunction later granted, it may be said that that is probably the law. See Code, 1897, Sec. 4356; Giliman v. Talley, 140 Iowa 718; Chamberlain v. Brown, 144 Iowa 601; Horrabin v. City, 160 Iowa 650; Bethany Cong. Church v. Morse, 151 Iowa 521. It is doubtful whether this point is made, and whether more is claimed than that the second injunction should not have issued because it was the second in — 330 — junction. Bo that as it may, the law does not fit the case. The temporary injunction which defendant is accused of having violated was never followed up by a permanent injunction. Consequently, there is no occasion to consider the effect of subsequent permanent injunctions upon an antecedent temporary one. 3. Injunction: coni pmpt: convielion: ci'i’l'iorari: homing not do nono. III. Plaintiff contends that certain of our decisions hold that the review of action on a charge of contempt is a hearing do novo. We hold the contrary in State v. Intoxicating Liquors, 76 Iowa 243, at 244, and in Nies v. Jepson, 174 Iowa 188. Lindsay v. Clayton District Court, 75 Iowa 509, does not decide that the review is de novo. Neither does McNiel v. Horan, 153 Iowa 630; Barber v. Brennan, 140 Iowa 678; Lewis v. Brennan, 141 Iowa 585, at 586; Sawyer v. Hutchinson, 149 Iowa 93; and Allen v. Brennan, (Iowa) 126 N. W. 771. All involve a review of an acquittal. McNeil's case is, on this point, that, while the findings below do not have the force and effect of a verdict, they will be reluctantly interfered with if the evidence is in conflict. Barber v. Brennan is that a refusal to punish is not disturbable if there be evidence upon which it may properly be found that defendant is not guilty; but, if the evidence of violation is conclusive, the facts will be reviewed and a remand ensue. An acquittal upon conflicting evidence will not be annulled unless the finding of not guilty is clearly wrong. Allen v. Brennan, supra. The Sawyer case says, “Of course, if the testimony be uncontra dieted, or so clearly preponderates as to make it reasonably conclusive that the party charged was in contempt, we shall have no hesitancy in annulling the proceedings and remanding the case for proper action;” but that the opinion of the trial court will not be wholly disregarded if there be a substantial conflict in evidence. The Lewis case holds merely that we cannot disiurb./an acquittal if there be no — 331 — affirmative finding upon which guilt can be predicated, and the evidence is not before us. Dutton v. Anderson, 163 Iowa 613, and Cheadle v. Roberts, 150 Iowa 639, 642, hold that, in reviewing a finding of guilty on certiorari, weight will be accorded Ihe finding of the trial court. Rist v. District Court, 162 Iowa 244, is that a finding of guilty of contempt will not be disturbed if there be a substantial conflict. Sawyer v. Hutchinson, 149 Iowa 93, rules that a contempt proceeding is quasi criminal, and requires a greater weight of evidence than ordinary civil cases, and a clear case should be made before punishment is inflicted for the violation of an injunction. It has support in Hydock v. State, (Nebr.) 80 N. W. 902. In re Taylor, (Calif.) 10 Pac. 88, holds the same, and adds a requirement of clear and satisfactory evidence, establishing guilt beyond reasonable doubt. So does State v. Cunningham, (W. Va.) 11 S. E. 76. Benbow v. Kollom, (Minn.) 54 N. W. 482, says that the evidence is too indefinite in vital points to sustain a finding of violation. 4' í.iQroEs1Tóontím^ceiUoVari: rules of review. On the whole, we think the rule is that the review is not de novo; that, while the finding below has weight, it does not have . , as much as has a verdict; and that, while evidence to sustain a finding of guilty must amount to more than the mere preponderance which sustains an ordinary recovery on the law side, it is not required to prove violation of an injunction beyond a reasonable doubt. IV. A bottle of whiskey, partly full, was found in a pantry in the basement, and a hidden quantity of bottled beer in another part of the basement, and sacks full of empty beer bottles were also found therein. And there is testimony that, prior to this raid, some beer drinking by women occurred in, a room of the hotel, tenanted by defendant, Mrs. Nies. — 332 — Whatever effect the finding of this liquor would have if no more than finding it appeared, the evidence satisfies us that neither defendant is responsible for the presence of this liquor. As to the beer, there is an almost conclusive showing that they are not. The chauffeur and the porter employed about the place testified, without any direct dispute, that the hidden beer was gotten by them in another state, to be used on a picnic a little later, and that the whole enterprise was something of which Mrs. Nies and her husband knew absolutely nothing; and it appears that, when Mrs. Nies ascertained that this had been done, at least one of these employes, if not both, were by her discharged. It is true that there are slight flaws in this evidence. For instance, they claim to have placed but 7G bottles of beer in hiding, and some 10 bottles more than that were found. Then, too, this picnic was to be had at or near a point which the buyers of it had to pass in taking the beer to Sioux City to be hidden. But when all is said, the evidence on the beer found is in such condition as that, under the rules of review on certiorari as we have stated them, the finding of the beer does not help to maintain the charge at bar. Under the same rules, we are constrained to hold that the evidence fails to sustain the claim of drinking by women, assuming that it would be material if proved. The finding of empty beer bottles creates no presumption of illegal sale or keeping for sale, and the evidence satisfies us that the defendants are not shown to have been responsible for those being where they were found. 5. intoxicating liquors : con- ■ ¿¡once ■ partidsales’1 ™ illesal Y. The injunction restrains Nies, his servants, agents, tenants, and representa7 ° 7 x tives an(l employes, or by, through or under any person or persons directly or indirectly, by, through upon or under any device, apparatus or evasion, from keeping for sale intoxicating liq — 333 — uors. Now. if it be material whether he was a mere volunteer, he seems not to have been that. It appears that he was putting in his time “as husband” in arranging to get the basement of his wife’s hotel turned into a pool hall and soft drink parlor. He says his object in having “this” put in ivas to prevent a violation of law, and his intent was to help the hotel along in the way of rent. He helped Paxton, the lessee of his wife, to select and in part to put into readiness for operation, the apparatus which Paxton was to use in vending beverages. He furnished cash bail when women were arrested for drinking in the hotel; and there is evidence from which it can be found that, when the officers attempted to raid the hotel at the time when the malta, the keeping of which is the basis of the prosecution, was found therein, he acted in opposition to their entering, and that they found themselves ultimately compelled to break in. About the only difference between him and the subtenant, who was to sell the malta, is that Nies did not own the keg of “malta” beverage which he helped the tenant to get and put into the place, nor own the paraphernalia to be used in selling the malta. We think he is in no essentially different position than he would be in if, instead of helping Paxton to get ready to sell or sell malta in this hotel building, Nies himself had gotten the beverage, apparatus wherewith to vend it, and was keeping the malta there with intent to sell. See State v. Stevens, 119 Iowa 675; State v. Wilson, 152 Iowa 529; State v. Intoxicating Liquors, 109 Iowa 145; Erbacher v. Anderson, 161 Iowa 546, at 548; Dutton v. Anderson, 163 Iowa 613; State v. Farley, 87 Iowa 22; and State v. Hale, 91 Iowa 367. We do not say that any one of these cases covers every angle of the situation. To illustrate, one, State v. Intoxicating Liquors, supra, denies that it is a differentiation that Nies was not the owner of the malta. What we do mean — 334 — to say is that these cases, taken together, make it fairly clear that Fies must be dealt with as a direct participant, and that it must be held that he violated the injunction against him, if keeping malta with intent to sell is such violation. 6. Intoxicating liquors : contempt: oyiclimcc*: percentage of alcohol in article sold. VI. There is evidence that a liquor which may contain no alcohol when received may, through fermentation and other causes, develop alcohol. There is oilier evidence that both plaintiff and defendants had malta analyzed, and that but a comparatively small percentage of alcohol was found therein. And defendants claim that the handling before and in connection with the analysis increased that percentage. All this accomplishes little, because, of necessity, its sole object is to show that malta is or is not intoxicating. In State v. Colvin, 127 Iowa 632, the beverage contained less alcohol than this malta does on any theory of the evidence. And we held, in the Colvin case, that the percentage of alcohol is immaterial, because the statute specifically declares that alcohol is an intoxicating liquor, and that this makes any beverage which contains alcohol, iiitoxicating liquor, though the beverage be never so weak an actual intoxicant,, and however much the alcohol may be diluted; and Ave conclude with saying: “The statute so declares, and it is conclusive.” In Sawyer v. Botti, 147 Iowa 453, Ave declare that any beverage manufactured from malted grain by the process of fermentation is, without regard to the amount of alcohol contained therein, or of whether the fermented beverage is in fact intoxicating, within the statutory definitions of liquors AAdiose sale is prohibited. In State v. Stickle, 151 Iowa 303, we apply the rule of the Sawyer case to a beverage known as Liberty Malt, and say the statute covers malt liquor as a beverage if .it contains any amount of alcohol, and — 335 — though the beverage be non-intoxicaling; and we hold evidence inadmissible that such beverage would not produce intoxication. And see State v. Intoxicating Liquors, 76 Iowa, at 244. In Bradshaw v. State, (Ark.) 89 S. W. 1051, there was less alcohol than here, and it is held that sale of it as a beverage Avas unlawful, Avhether the compound Avas intoxicating or not. According to State v. Yager, 72 Iowa 421, neither whether the beverage is intoxicating nor the extent to Avhich it was diluted, nor whether the use of the partió-, ular beverage within reasonable limits may or may not result in intoxication, is the test; and it is said that a beverage containing alcohol in any appreciable proportion is condemned, although it is only in exceptional cases that the use of any intoxicating liquor as a beverage results in intoxication. Both Commonwealth v. Brelsford, (Mass.) 36 N. E. 677, and State v. Gravelin, (R. I.) 16 Atl. 914, deal with a less percentage of alcohol than was found in the malta, and hold that the beverage is intoxicating liquor within the-meaning of the statute defining intoxicating liquor, and that evidence to show it Avas in fact not intoxicating is incompetent. To like effect is State v. O’Connell, (Me.) 58 Atl. 59. 6-a ' Some matter found in the record Avhich. bears on good faith of the defendants is hearsay and incompetent, in any vieAV. But there is no question of good faith involved. The test is the character of the compound; that, and not the good faith of the seller, determines the legality of the sale. State v. Gregory, 110 Iowa 624, at 626. It is immaterial that defendant acted in good faith, relying on the assurance of the manufacturer or wholesale seller that the compound was not intoxicating. It does not matter that the respondent did not know that the tonic, sold by him contained intox — 336 — icatiug liquor, was assured by the manufacturer that it did not, and relied upon this. lie was bound to know its character. State v. Lindoen, 87 Iowa 702. Hence, it does not matter that both Nies and his wife testified that they had no intention to sell liquor illegally or have it sold, or to keep it or have it kept for sale. It does not avail that the seller did not know the liquor was intoxicating. Commonwealth v. Boynton, 2 Allen (Mass.) 160. Nor that he believed it to be non-intoxicating. Commonwealth v. Waite, 11 Allen (Mass.) 261; State v. Smith, 10 R. I. 258; Barnes v. State, 19 Conn. 398. It is no defense to an indictment for keeping or selling adulterated or intoxicating liquors that defendant did not believe them to be that. Regina v. Woodrow, 15 M. & W. *404; Commonwealth v. Farren, 9 Allen (Mass.) 489; Commonwealth v. Nichols, 10 Allen (Mass.) 199; Commonwealth v. Smith; 103 Mass. 444; State v. Smith, 10 R. I. 258; People v. Zeiger, 6 Parker’s Criminal Rep. (N. Y.) 355. The matter seems to be put upon the ground that, on considerations of public policy, it is deemed best to require, as to some things, that one must ascertain at his peril whether what he does comes within the legislative pro- ’ hibition. 8 Ruling Cáse Law 122. 7. intoxicating mont^good13'1’ effect01 sollc1': We cannot interfere with the finding that defendant C. W. Nies is guilty, as Hiar8'e<l- He was ordered to pay a fine of H,000, and, in default of payment, to be committed to the jai^ of the county for a period of 300 days. In addition, there ivas a judgment imprisoning him in said jail for three months. We think that, on this record, the order imprisoning for three months should be annulled, and no more remain effective than that he pay said fine, and in default of payment be committed for 300 days. While we have said that intention, good faith and want of knowledge that the liquor was intoxicat — 337 — ing are not defenses, these elements do have bearing on what the punishment should be, and we think that, the showing as to intent, want of knowledge, good faith and the like, being undisputed, and there being no evidence that the defendant has ever been found guilty of violating the liquor law before, this modification is demanded of us. Division IT. 8. intoxicating sa^lTby1tenant consent3®0!01’ ¡anaiora essenI. As to the defendant Mrs. J. A. Nies, we have first to decide whether, as is some- ■ times time on the civil side, one is bound by what his tenant does, though he neither ]illowg ^ being done, and, even though knowing, he disapproved, but did not stop its doing. We have held the presumption from finding obtained against a registered pharmacist indicted for maintaining a liquor nuisance. State v. Shank, 79 Iowa 47. In fact, Section 2427 of the Code of 1897 provides that the finding of liquors in the possession of one not legally authorized to sell, if found in such a place as this was, and being found in unusual quantities, even in a private dwelling, shall be presumptive evidence that such liquors are kept for illegal sale. We have held that evidence as to finding a large quantity of liquor in the house where a defendant lives with his father, where there is also some found in the place named in the indictment for nuisance, was competent, which manifestly proceeds on the theory that defendant probably knew of the additional liquor stored in his own home. Of course, we have applied this presumption in cases to obtain an injunction, but that is on the civil side. Shideler v. Naughton, 163 Iowa 616; Shidler v. Keenan, 167 Iowa 70. In Tinning v. Mumm, 146 Iowa 263, at 267, Barber v. Brennan, 140 Iowa 678, we use language which, by overlooking that the cases are attempts to obtain injunctions, — 338 — gives color to the claim that the doctrine of respondeat superior applies elsewhere than in civil actions. And we held in Nies v. Jepson, 174 Iowa 188, a prosecution for contempt, that finding liquor in a locked room in this hotel at least raised a presumption that someone was keeping liquor there with intent to violate the law. This is not finding guilt by construction, but a holding that presumptions or rules of evidence created by statute obtain in contempt proceedings. Some cases that, on surface reading, might be taken to hold that one may be found guilty by the application of respondeat superior, or because of the relation of principal and agent, in fact turn upon actual knowledge. ! In Stromert v. Johnson, 144 Iowa 682, at 684, what is really held is that, where illegal sales are frequent and open, it is fairly made to appear that the cm]>1 oyer knew illegal sales were being carried on. McCracken v. Miller, 129 Iowa 623, is, to begin with, a civil action. In it the question of whether an owner should be enjoined is fully gone into by an inquiry on whether there was evidence that he knew his tenant was conducting an unlawful liquor business. While it is held he had sufficient knowledge, his being enjoined turns on that, and not on the proposition that he might, on the criminal side, be held to know by construction whatever his tenant did or knew. And there is another class of cases, of which State v. Arie, 95 Iowa 375, and Dudley v. Sautbine, 49 Iowa 650, are illustrations. They involve the doctrine that, if one employs another to work in or have charge of a saloon, he may not escape liability for illegal sales made, though lie has expressly forbidden such sales. That, once more, is not a holding that, if a tenant without the knowledge of his landlord keeps intoxicating liquors on the'leased premises, the landlord may be found guilty of contempt of court. AH — 339 — they do hold is that whosoever creates an agency for the sale of liquor may not, as a matter of public policy, be heard to say that illegal sales made by the agent were without his knowledge and consent. If any other rule prevailed, it would make it practically impossible to punish the owner of a ;saloon for illegal sales made, therein, if he will remain away from the saloon, physically. Other cases make it clear that respondeat superior and the laws of agency or of landlord and tenant have no application. In State v. Findley, 45 Iowa 435, a clerk made a single sale of liquor, and we reversed a conviction of his employer because there was no liquor found in his place of business, and because, having no knowledge of this sale, he could not be held criminally responsible for it. In State v. Arie, 95 Iowa 375, we hold that, where the agent makes an illegal sale of liquor, there is a presumption that the employer knew of it and consented thereto, and that it is for him to show the contrary if he can. This, of course, negatives the idea that respondeat superior, agency or the like, apply. For, if that were so, the employer would not be permitted to show that the act was without his knowledge and consent. Where one is bound because his agent did a thing within the scope of authority, it would be an idle answer that the principal did not know and consent. As matter of law, he charges himself with knowledge and consent by the creating of the agency. As bearing on the proposition, there is held, in State v. Gravelin, (R. I.) 16 Atl. 914, what is the converse in situation, but the same in principle, namely: that, if one defendant is sole proprietor, and has sole charge, and the other merely kept and maintained the premises as his servant, under his direct personal supervision, the latter cannot be convicted. — 340 — 9. intoxicating sumption’of me-conclusive.04 We think the statute prohibition against violating the liquor laws, by servant, aSent> employe, or tenants, and commands in injunctions that there shall be no illegal sale or keeping for sale by a servant, agent, tenant, employe, mean, so far as criminal or quasi criminal cases are concerned, that one shall not be allowed to shield himself by the evasion of having someone else do what he himself.is in person forbidden to do; that the utmost that can be made of finding liquor in a hotel building is to raise a presumption that the owner has, either by himself or agent, servants, tenants, or employes, violated the liquor law or an injunction against the illegal sale of liquor, respectively; that there is no conclusive presumption he has guilty knowledge of what these others do; and that, if he shows they kept liquor for illegal sale without his knowledge or consent, direct or indirect, the owner of the building cannot be punished, as for a violation of statutes making such illegal sale a crime, or violating an injunction forbidding such sales. In other words, one cannot become a criminal by construction or by constructive notice, nor the naked fact that he becomes a landlord. II. With the finding of liquor and sacks filled with empty bottles, and the drinking in the hotel out of the way, the evidence against her is that the lease she made suggests a suspicion as to what she thought would be done under the lease. She was getting $G0 a month for the use of a dark and fairly inaccessible set of rooms in a basement, to be devoted to .the ostensible purpose of selling soft drinks. There ivas to be also an immediate institution of a pool and billiard room; and no preparations for such were made. There, is something of an explanation of this. But she has one point of differentiation, because, during all the times immediately concerned, she was away visiting sick and dying relatives in another state and, therefore, has strong — 341 — grounds for claiming that, unless she be charged with notice as matter of law, she had no knowledge that anything but soft drinks were to be or were put into her hotel with purpose to sell the same as a beverage. . We are not overlooking that her actual intent or want of knowledge is in one sense immaterial. If she knew that malta was being put in, and it turns out that malta was an intoxicating liquor, then, in contemplation of law, she knew that the injunction against her was being violated, and consented to the violation. The distinction is this: If all she knew in fact was that soft drinks were about to be put in, she is not criminally liable, because a soft drink is not intoxicating liquor. But if, she knew that malta was being put in, and that was in fact an intoxicating beverage, then it is not material that she believed malta was not an intoxicating liquor. As somewhat bearing on this point and another, we call attention to Potter v. Harvey, 30 Iowa 502, which holds that, though it is the rule that one who pays after he knows representations made at the sale are false, is estopped to claim damages on account of such representations, yet this is not so if his contract was made through an agent, and the principal was ignorant of the false representations’ having been made, although he knew the facts showing their falsity. We have already disposed of the finding of beer and the bottle partly filled with whiskey, even as to the man Nies. She testifies that she did not know that any preparation was being made to sell any other than soft drinks, and would not have let Pqxton have the room if she had known it; and testifies in the strongest’terms to want of actual knowledge that at any time intoxicating liquor had been sold or kept for sale in her hotel; and that it was not her intention to keep it, direct it to be kept, and, if any was kept for such purpose, she did not. know it. Nowhere — 342 — is there any evidence on her part or' that of anyone that she ever heard of malta, or knew that that particular liquid was being put in or kept in her building. Those who say they bought beer of her husband do not claim to have bought any of her. It appears that she discharged at least one of the men who had been concerned in putting beer in there; when she ascertained that beer had been found, she cancelled the lease. As seen, she is not to be fo.md guilty by an application of rules in the law of landlord and tenant. Taking into consideration the standards of review ruling in review on certiorari of a finding of violating an injunction by acts n'ot committed in the immediate presence of the court, we are constrained to annul so much of the order in consideration as found the plaintiff in certiorari, Mrs. J. A. Nies, guilty of violating the order of court with whose violation she is charged. . ; Accordingly, our conclusion is that the order and judgment of the trial court must be annulled as to the defendant Mrs. J. A. Nies, and as to so much of its order as commits the defendant C. W. Nies to jail, additional to the conditional imprisonment in default of payment of fine. As to the order imposing the fine, and the alternate imprisonment in default of payment of same, the petition is dismissed. — Affirmed in part; annulled in part. Gaynor, O. J., Laud and Evans, J J., concur.