Watkins v. Wilkerson , 141 Ga. 163 ( 1913 )

Fish, C. J.

C. L. Wilkerson brought Ms petition based on the Civil Code, § 5335 et seq., against the Hill City Club, Bart Watkins, and John Saxon, alleging: that the club has and maintains “a place consisting of all or a part of the second floor of building known as 415% Broad Street in the City of Rome, occupied by said Hill City Club; that Bart Watkins and John Saxon have the management and control of said club, situated as aforesaid, and that the said club is running and has been running for the last three months in said building under said management as 'aforesaid; that said club as so operated and maintained is a blind tiger within the means [meaning] of the law of this State, and is engaged in the illegal traffic and sale of liquor, contrary to the laws of the State of Georgia; that said club and its management have received large profits from the sale of spirituous, malt, and intoxicating liquors and beers continually at the said club for the past three months; that the said club and its management are keeping and maintaining in said room as aforesaid a nuisance as defined by the laws of this State; and that, in consideration of the premises and of the foregoing allegations, the same is a continuing nuisance, and as such is subject to be regulated and abated by the equitable relief hereinafter prayed.”' The petition was served on Bart Watkins and John Saxon each personally. Thére is no entry as to service referring to the Hill City Club. A demurrer on various grounds was filed by “the defendants.” “The defendants” also answered. Both sides submitted evidence on the interlocutory hearing. “The defendants” excepted to the order granted on such hearing.

The rulings announced in headnotes one to .five, inclusive, do not require elaboration.

The prayer for injunction, which was adopted by reference to a part of the order, or is explanatory thereof, prayed, not only that the club and its managers and agents be enjoined from keeping or maintaining the place designated in the petition, for the illegal sale of liquors, but also from keeping and maintaining any buffet, saloon, locker-club, or place'by any other name or without a name for such purpose, there or elsewhere. There was no allegation in the petition, nor anything therein, which even intimated the keeping or the intention of keeping or maintaining by the club, or its managers or agents, of any place for the illegal sale of liquors elsewhere than at the club-rooms particularly described in the petition. Nor was there any evidence submitted on the hearing which in any way tended to show that the club, or its managers, or agents, were selling liquor at any other place than the described club-rooms, or that they or any of them had any purpose to sell liquor elsewhere. The order granted, by reference to the prayer, was broad enough to enjoin the keeping or maintaining .of any buffet, locker-club, or any place with or without a name, not only at the place designated in the petition as a “blind tiger” or liquor nuisance, but at any other place whatever. The statute (Civil Code, § 5335) declares that “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,” etc. The evident purpose of the legislature in adopting this statute was-to furnish a civil remedy to the citizens of each county for the suppression of the illegal sale of liquor therein. To accomplish this end, “any place . . where” the designated liquors are sold in violation of law was defined to be a nuisance; that is, such place was in effect declared to be per se a public nuisance, and it was prescribed that "the same” — that is, such place — might be abated or enjoined as a nuisance, as the law provided at the date of the statute. In the language of the Civil Code, § 4457: ’ “ A nuisance is anything that worketh hurt, inconvenience, or damage to another ; and the fact that the act done may otherwise be lawful does not keep it from being a nuisance.” We do not say that this must be taken as a complete definition of the term; for, while it is the definition generally given, of a nuisance, it must be, in view of the wide range of subject-matter embraced under the term nuisance, quite impossible to frame any general definition that will be exaet and- exhaustive. The code definition, however, seems to make a thing, as distinguished from a human being (as the word “anything” is used), or a condition of circumstances the result of an act or acts, a nuisance; and when the statute under discussion makes “any place . . where” liquor is sold, (for, since the passage of the prohibitory law, it can not be sold legally anywhere in the State) a nuisance, and provides that such place, which is declared to be a nuisance, may be abated or enjoined as the law provides, it seems obvious that such place, which is made a nuisance by the illegal sale of liquor there, is the thing which may be abated, and that one way of accomplishing this is by enjoining the person doing the acts, which makes the place a nuisance, from further doing them. Where, therefore, as in the present case, it is sought to abate a designated place as a nuisance by enjoining its further maintenance by the person alleged to be operating or maintaining the same, and the sole issue presented by the pleadings is whether a nuisance, under the statute, is being maintained at such place by the defendant, and there is no contention that he is maintaining in connection therewith, or independently thereof, or is even threatening or contemplating the establishment- or maintenance of a,ny other such nuisance elsewhere, it is error on interlocutory proceedings, as it would be also on final trial, to go beyond the scope of the case made by the allegations of fact set out in the petition and the evidence, and to enjoin the defendant from operating or maintaining any other nuisance than the one designated in the petition, or one connected therewith as part of a scheme or device to operate or maintain it.

Of course we do not mean to hold that, in cases to enjoin liquor nuisances under the statute (Civil Code, § 5335), the injunction must be confined' strictly to an exact spot, or particular room; but our holding is, that where, as in the case at bar, it is alleged that the defendant is maintaining a nuisance at a designated and particularly described place, or rooms, or apartment, selling liquor there in violation of law, and there is no contention that the defendant is maintaining a similar nuisance elsewhere, either in connection with or independently of the one aimed at in the petition, or is preparing, threatening, or contemplating the creation or maintenance of a liquor nuisance elsewhere, a general blanket injunction covering the whole State is not warranted. See, on the subject: 17 Am. & Eng. Enc. Law, 322; Clark v. Riddle, 101 Iowa, 270 (70 N. W. 207); State v. Frahm, 109 Iowa, 101 (80 N W. 209); Lyon v. City Club, 83 S. C. 509 (65 S. E. 730); State v. Rabinowitz, 85 Kan. 841 (118 Pac. 1040, 39 L. R. A. (N. S.) 187). Whether in certain circumstances,.other than as exhibited in the present case, it would be proper to grant a blanket injunction is not here for decision.

If upon final trial an injunctive decree should be entered, then whether any subsequent act of the defendants will amount to a violation of its terms, whether done directly, or indirectly by any device or subterfuge to evade it, will be in order for determination upon proper proceedings. The granting of an interlocutory injunction against the defendants, enjoining them from keeping or maintaining 'a nuisance at the place designated in thé pétitión by there selling liquors in violation of law, is affirmed. But direction is given that the order be so modified as to conform to the' rulings herein made, by striking therefrom so much of it as- amounts to a final adjudication of the facts, and as temporarily enjoins the defendant from maintaining a nuisance “elsewhere” than at the place described in the petition, and that it be further so modified as to show that the injunction granted is interlocutory in character.

Judgment affirmed, with direction.

All the Justices concur.