Cassidy v. Howard , 140 Ga. 844 ( 1913 )

Fish, C. J.

(After stating the foregoing facts.)

1. The judge did not, in view of the circumstances of the case, err in permitting the witnesses to testify orally in behalf of the plaintiffs on the interlocutory hearing, over the objections made by the defendant. In Chattanooga &c. Ry. Co. v. Morrison, 140 Ga. 769 (79 S. E. 903), it was held: “While generally at the hearing of an application for an interlocutory injunction the testimony is introduced by means of affidavits, the rule is not inflexible; and when witnesses are present, without objection on their part, for 'the purpose of testifying, the presiding judge may in his discretion allow them to be examined orally, due care being taken that no injustice is worked thereby.” The order granted by the judge prior to the hearing, requiring service of affidavits, to be used for the plaintiffs, on counsel for the defendant three days before the hearing, did not, in the circumstances, so differentiate this case from the one cited as to deprive the judge of his discretion to allow witnesses to testify orally on the preliminary hearing. The order fixing the date for hearing on August 1 is not dated, but it appears to have been filed on July 17. There is nothing in it indicating whether the ease should be heard on parol testimony or affidavits, but the judge certifies that he informed counsel for the plaintiffs, when the original restraining order was granted on presentation of the petition, that oral testimony would be admitted on the hearing fixed for August 1. The order requiring service of affidavits was granted July 26, Saturday, six days before the hearing. It provided that ' affidavits for the plaintiff should be served on counsel for defendant three days prior to the hearing. It was served on plaintiffs’ counsel on Monday the 28th of July, thus allowing only one day for the preparation and service of such affidavits. . The order was not absolute and unconditional, but provided that such affidavits, “as far as possible,” should be submitted to counsel for defendant. The judge had the right to construe his own order, and to determine whether it was possible for plaintiffs’ counsel to prepare and have executed and served the affidavits within the time stated. If the affidavits for the plaintiffs had been so served, then the defendant would not have had two days prior to the hearing in which to file affidavits. As in the case cited above, the witnesses who testified for the plaintiffs were cross-examined by the defendant’s counsel— thus taking a benefit which he could not have had if the affidavits of the witnesses had been used. It does not appear that the defendant had any witnesses whose affidavits he desired to procure, nor did he offer any affidavits in his behalf, nor introduce any witnesses, nor even testify in his own behalf. We fail to see, therefore, how he was hurt by allowing the witnesses for the plaintiffs to testify orally, rather than having their affidavits introduced. It follows that the judge’s ruling on this point should be affirmed.

2. Nor did the judge err in refusing a continuance. It does not appear that the defendant claimed to be surprised or less prepared for trial by reason of the admission of oral testimony for the plaintiffs. As already stated, in effect, the defendant’s counsel did not claim that he desired time to procure evidence for the defendant; and so far as the record shows, he did not desire to put in any evidence, and it would seem that the continuance was desired only -for delay.

3. The petition is based upon the statute (Acts 1899, p. 73, Civil Code, §§ 5335, 5336, 5337), which is as follows: “Any place commonly known as a ‘blind tiger,’ where spirituous, malt, or intoxicating liquors are sold in violation of law, shall be deemed a nuisance, and the same may be abated or enjoined as such, as now provided by law, on the application of any citizen or citizens of the county' where the same may be located.” “If the party or parties carrying on said nuisance shall be unknown or concealed, it shall be sufficient service, in the abatement or injunction proceedings under the preceding section, to leave the writ, or other papers to be served, at the place where such liquor or liquors may be sold, and the case may proceed against ‘parties unknown/ as defendants.” “The court shall have authority to order the officers to break open such ‘blind tiger’ and arrest the inmates thereof, and seize their stock in trade, and bring them before him to be dealt with as the law directs.” In Thompson v. Simmons & Co., 139 Ga. 845 (78 S. E. 419), it was held that the descriptive words following the term “blind tiger,” in the first section of this statute, are definitive of such term, and that the statute applies to any place where spirituous, malt, or intoxicating liquors are sold in violation of law. This being true, the evidence in the ease at bar demanded a finding by the judge that the place where the defendant was engaged in business was a “blind tiger” or liquor nuisance, and subject to be abated or enjoined as such. Aside from the positive and uncontradicted evidence of the witnesses for the plaintiffs, the judge was authorized to find the defendant’s place to be a “blind tiger” and a nuisance, and subject to be abated or enjoined as such, from the admissions made in the defendant’s answer. Paragraph three of the petition alleges that the defendant and his agents and employees are engaged at his place of business in the unlawful sale of spirituous, malt, and intoxicating liquors; the answer avers that the defendant can neither admit nor deny the allegations of this paragraph, for want of sufficient information. In view of such evasive answer to the positive allegations of fact made in the petition, as to a matter necessarily within the personal knowledge of the defendant, such allegations will be taken as true. Moreover, the defendant admitted in his answer that he held a United States internal revenue license as a retail liquor dealer at his place of business. The act of 1911 (Acts 1911, p. 180) makes the fact of holding such license sufficient to establish a prima facie case against a defendant in an action of this character and to place the burden of proof on him in such arcase. It necessarily follows from the facts established in the present case that the judge should have enjoined the defendant, his agents and employees, from continuing the operation of the “blind tiger” by selling liquor in violation of law at the defendant’s place of business, 210 Cotton avenue, until a final trial of the dase. “The purpose of' the act [Civil Code, § 5335] was to provide that a nuisance may be abated by injunction, to be issued in the manner provided by law, that is, upon application to the judge of the superior court, upon a sworn petition and after a hearing, the judge having the right to grant a temporary restraining order until the interlocutory hearing, and a temporary injunction until the final hearing, and a permanent injunction after a hearing before a jury under existing rules.” Legg v. Anderson, 116 Ga. 401, 405 (42 S. E. 720). It follows that on the interlocutory hearing the judge did not have the power to grant a permanent injunction against the defendant and his agents and employees from the further operation or continuance of the “blind tiger;” and as it appears from the order that such a permanent injunction was granted, direction is given that it be so modified as to make it interlocutory.

4. The general prohibition act (Acts 1907, p. 81, Penal Code, § 426 et seq.) provides that any person who shall sell or barter for valuable consideration, within the limits of this State, any alcoholic, spirituous, malt, or intoxicating liquors, or intoxicating bitters, or other drinks which if drunk to excess will produce intoxication, shall be guilty of a misdemeanor. The act of 1908 (Acts 1908 p. 1112, Civil 'Code, § 1763 et seq.) provides that every firm, person, or corporation, who shall sell or offer for'sale, in quantities of less than five gallons, any imitation of or substitute for beer, ale, wine, whisky, or other spirituous or malt liquors, shall obtain a license so to do from the ordinary of the county wherein such business is carried on, and shall pay a prescribed sum for the license for each calendar year or part, thereof; and provides that any person who shall carry on such business without having first obtained and paid for the license required shall be guilty of a misdemeanor. Section eight of the act as codified (Civil Code, § 1769) provides: “Any person who shall sell, or furnish, keep, or give away, under color of the license herein required, any liquor, drink, or beverage prohibited by law shall, in addition to any penalty which he may otherwise be liable to, forfeit said license and be forever disqualified from holding any such license and of being in the employment of any person holding such license; and any person holding such license who shall knowingly employ any person so disqualified shall forfeit his license and be in like manner disqualified.” Section four of the act (Civil Code, § 1770) provides that nothing contained in the act shall ever be construed to authorize the sale of any beverage, drink, or liquor now prohibited by law.

It is clear that the forfeiture of- the license, and the disqualification of the person doing the business authorized by it, as provided in section 8 of the act of 1908 (Civil Code, § 1769), is an additional penalty to be imposed upon such person if convicted of a violation of the general prohibition law. Such additional penalty is no part of the act of 1899 (Acts 1899, p. 73, Civil Code, § 5335), providing that a "blind tiger” may be abated or enjoined as therein declared, and is in no way connected with it. This being true, the judge was not authorized in the present case to adjudge the defendant to be disqualified from holding any ■license under the act of 1908, and from being in the employment of any person holding such license, and, on -account of such disqualification, to restrain and enjoin the defendant until the further order of the court from holding and operating under such license, or under any other license, at his place of business designated in the petition or any other place in the State, and from being in the employment of any person holding any such license in this State.

Judgment affirmed in part, with direction; and reversed in part.

All the Justices concur.