Davis v. Stark , 198 Ga. 223 ( 1944 )

Where, at an interlocutory hearing on a petition by a solicitor-general of a judicial circuit to padlock a building as a common nuisance under the Code, § 58-109, the evidence showed that a quantity of liquor was found in the building, and there were circumstances indicating illegal sale of liquor therein, the interlocutory judgment ordering the sheriff to padlock the building until further order of the court was authorized.

(a) Testimony of the defendants to the effect that the liquor on hand was intended to be used at a party to be given to their son in law and daughter did not require a different judgment.

No. 14948. SEPTEMBER 7, 1944. Hope D. Stark, as solicitor-general of the Piedmont judicial circuit, filed in the superior court of Gwinnett County an equitable petition against Mr. and Mrs. J. N. Davis to abate as a public nuisance a place of business operated by them, known as the "Candle Lite" where food and drinks were sold, and alleged that such business was conducted as a "blind tiger." The evidence showed that the place described in the petition was a place of business without the limits of any municipality, on a public highway leading into the City of Atlanta, Fulton County, Georgia, and located in Gwinnett County near Lawson General Hospital, operated by the United States Army. The building consisted of a large dining room with a cook room and another adjoining room containing a bed or cot. On Saturday, April 15, 1944, several agents of the State Revenue Department made a raid on this place, first going to the front of the building where its two doors were locked, and then one or more going to the rear when not admitted. The rear door was closed but not locked. J. E. Bishop testified: "I knocked on the back door which led into a bedroom (I found out after I got in) and I got no response and I turned the knob and the door opened but still I didn't step in. At that time Mrs. Davis came to the door, and I told her we were officers, State officers, and we had a search warrant and we were only interested in whisky they had there, [that] we had information whisky was being sold there, so she said, `You can't come in. I am dressing.' I said, `Mrs. Davis, you look like you are dressed.' She had an apron over her clothing, and she said, `You can't come in.' She said, `I've got some things in here I don't want you to see.' She said, `Let me close the door a few minutes and you can come in.' I said, `No, we can't let you close the door, Mrs. Davis,' and I told her we didn't want to use any force to come in, but we had a search warrant and if necessary would, and she finally did let us in, and when I walked in, there was one box of whisky sitting on the bed and another under the bed. This is a memorandum of the whisky seized there. There was five pints of Seagram's 7-Crown, and there was five half pints of Seagram's 7-Crown, and six fifths of Gallager and Burton Black Label. Now that is what is known as four-fifths of a quart. We call that fifths. There was nine four-fifths of a quart of Bicardi rum and one four-fifths of a quart of Ron Rickle rum and three fifths of Thistle Scotch. There was two fifths that I did not see. That was in the other part of the building. I later saw it, but I didn't see where it came from. The seal had been broken on it, and some taken out of the bottle. . . I later talked to Mrs. Davis down at the other building, . . I first asked for the keys to these other buildings, and she said she didn't have the keys, her husband had the keys. I told her we would like to get into the buildings, and she said I would have to wait until her husband came back. Later she produced the keys. She unlocked the buildings, and we went through, and we didn't find any whisky in the other buildings. . . The bottles I found in the bedroom all had the seals unbroken. . . This liquor was all tax-paid liquor."

T. L. Carroll testified: "The front main entrance is what I call the dining room and bar. There is a counter in there with fruit juices and bottles of drinks like they mix drinks with, and back of that was soda water. They had a number of small glasses like is used for mixing drinks, serving drinks in, and there was also a half a bottle of rum at the bar. I saw it up on the bar. I don't know whether it was taken out of the icebox and put on the bar or not. No one was being served when I went in the bar, but there was one or two couples in the individual booths in the dining room. . . On Monday, the 17th, when we raided the place again I did investigate the drinking glasses at that time, and the drinking glasses had been carried back into the main cook room, or the room where the food was prepared, and I smelled of the glasses and a number of them had a very strong odor of whisky. One of the glasses had about an inch and a half of whisky in it then. This is a long building, maybe sixty feet long, and probably eighteen feet wide. The end up towards Norcross was a long dining room where booths are located for drinking and eating, and then at the south end of that there is a bar across the end, and back of that bar is soda water and things. There was crushed ice and everything under the bar, and these drinking glasses. I would say we saw at least one hundred of those small drinking glasses that hold about four or five ounces. Those glasses are known as whisky glasses or mixed-drink glasses. They are not as large as water glasses or iced-tea glasses. A number of those glasses were located at the bar, and there was one or two cases that hadn't been opened in the back room. . . Some of those glasses I saw had liquor in them."

C. W. Burge testified: "I helped search some of the buildings and the dining room where the public eat. I found a soldier in there — I believe he was a lieutenant — and a girl. They had something to eat, and there was a little small drinking glass on the table. I called those drinking glasses whisky glasses. I found a whole box of other glasses like that in the back room where the whisky was, and there was several glasses under the counter. There was a half a bottle of rum under the counter, hardly half full, and I believe there was two more hardly half full under the counter at this bar. At this bar there was Seven-Up and other things, a Coca-Cola box full of chipped ice in there, too. There was some ginger ale. There was a good deal of it. I think it was Tom Collins. I went back on Monday. We found two glasses in the back room that had had whisky in them, and one had some whisky in it. . . There was no sign of milk and sugar in the glasses. I didn't see any glasses with sugar in them."

C. A. Gillespie testified: "My position with the State of Georgia is director of the alcoholic-tax-control unit of the State Revenue Department. In my official capacity I went with other officers on the 15th of April to the place of Mr. and Mrs. J. N. Davis known as `Candle Lite.' I had a report they were selling all kinds of liquor there. Upon this information we planned to raid the place. We procured a search warrant. . . There was two bottles about half full, I won't say, sitting up on the bar counter. . . I asked her [Mrs. Davis] about the whisky, and she said it was hers. I asked her who ran the place, and she said she ran it. I said, `Mrs. Davis, why is it you go ahead and violate the law and sell liquor out here when you know you are violating the law?' She says, `Everybody violates the law. Don't you violate the law?' I said, `No, not if I know it.' . . I saw quite a number of small glasses there. They were small whisky glasses used by bars. They had practically a case and maybe a dozen out of the case, and I believe they had one case that hadn't been opened that was in the back room under the bed. Then they had some on the bar and some underneath. The ingredients they had at this place to prepare mixed drinks were Tom Collins, Canada Dry, and some Seven-Up, I believe. . . They had several cases of Tom-Collins soda which is used in making drinks, used as a chaser. Some of them was at the bar, and a lot of it was in the back room, in this bedroom. They had quite a lot of cracked ice in and around the bar. There was one couple in the back room, and the lights were very dim back there, and there was two small glasses on the table. . . I went in from the front. I saw some bottles of whisky that had been opened. They had two bottles sitting up on the counter at the bar when I went in that was open. . . I found one myself partly filled under the counter later. After we came back from the cottage down there — I came a little ahead of them — and when I walked in there, I noticed back under the counter a bottle that was just about half full."

The evidence for the defendants was substantially as follows: The seized whisky had been brought to the place about five or ten minutes before the officers arrived. The business had been conducted for about thirteen years, and no intoxicating drinks had been sold by them, and they had not knowingly allowed any to be sold. Some customers might have brought their own drinks to the place, and have drunk them there, but without the knowledge or consent of the defendants. The whisky seized was purchased by J. N. Davis from a stranger, and it arrived in his absence, but he was expecting it, and left with his wife the money to pay for it, approximately $77. The explanation of the purchase of the whisky was that the daughter of Mrs. Davis had married an officer, then stationed at an army camp in Montgomery, Alabama. When he came for the wedding about two weeks before the raid, he had only a leave of two days, and it was planned that he and his bride should return later, and a wedding party be given them at some place in Atlanta, at which twenty-five or thirty guests would be present, and the liquors were to be used on that occasion. J. N. Davis kept some whisky regularly for his own personal use. He was not a heavy drinker, but a regular, light drinker, and the only open bottle found on the premises was one in the bedroom where he kept it for his own use. Each of the defendants denied that either of them, or any of the employees, had put any partly filled bottle on the counter in the dining room. If one was found there, it was placed there by some one else without their knowledge or consent. The small glasses which the raiding officers testified were for use in mixing drinks were in fact used for serving catsup, Worcester sauce, barbecue sauce, milk, and such items, but never for mixed drinks. In 1938 a raid had been made on the place and some whisky found. Since then the sheriff of Gwinnett County had made periodical visits to the place, but found no whisky. One beer case had been made against J. N. Davis. Last year he was refused a license to sell beer. The sheriff of the county and several of his deputies testified that no complaint had been made against the place since the latter part of 1943, when some hearing had been had in court about the place. Several visits had been made to the place during 1944, but nothing was found that indicated sales or distribution of intoxicating liquor there. The defendants testified that Mrs. Davis had no financial interest in the business, but assisted her husband in operating it. As to the delay in admitting the officers at the rear of the building, Mrs. Davis testified that she told them to wait two or three minutes, that a waitress was in the bedroom, through which they were seeking entrance, in the act of putting on her uniform, and when the door was pushed open she had put on her uniform and was then instructed to open the front door. J. N. Davis testified that he kept the front doors closed because he did not want any customers to come in the place until he ascertained that they were all right, and that he catered to the best trade, officers from Lawson General Hospital, etc.

The court entered the following order: "Ordered, adjudged, and decreed that until the further order of the court . . the defendants above named and all other persons be and they are enjoined from occupying or using the building known as `Candle Lite,' as described in the plaintiff's petition as amended in said case, for any purpose at any time, and that the sheriff of Gwinnett County, Georgia, and his lawful deputies securely lock and fasten the said building so as to prevent its use or occupancy by anyone until the further order of the court. It is further ordered, adjudged, and decreed that the defendants be permitted to remove therefrom such fixtures as they may desire under the supervision of said officer or officers within a reasonable time." The exception here is to that judgment. It has been the considered judgment of the General Assembly that a building or structure in which is kept spirituous liquors or beverages, defined in the Code, § 58-101, for the purpose of sale or other illegal disposition is a common nuisance. This judgment has twice been enacted into law, once in 1899 (Code, § 58-110) and again in 1915 (Code, § 58-109), and it is there provided that such common nuisances may be enjoined or abated. This court has repeatedly sustained judgments of the trial courts granting interlocutory orders directing that such a building be padlocked. Bracewell v. Cook, 192 Ga. 678 (16 S.E.2d 432); Lokey v. Davis, 194 Ga. 175 (21 S.E.2d 69); Pullen v. Meadors, 196 Ga. 796 (27 S.E.2d 655). The resolute purpose of the legislature to protect the public against the evils of such common nuisances is manifested by the provisions of the Code, § 58-107, where it is in substance declared that the keeping of any of the prohibited liquors or beverages in any building not exclusively used for a dwelling "shall be prima facie evidence that they are kept for sale or with intent to dispose of same contrary to the law;" and the provisions of § 58-122, which declare that any and all the property used in such illegal keeping of liquors or beverages is contraband, in which the owner has no property right, and authorize the State to destroy or seize them. In providing for the abatement of such a nuisance rather than reliance upon criminal prosecution and an order of court enjoining it, both of which are subject to evasion, the legislature has by the law authorizing abatement made available an immediate and effective remedy for a complete removal of any injurious effect of such nuisances upon the public. In view of the provisions of the statutes and the decisions of this court, there is now no room for reasonable doubt of the validity of the statutes and the authority of the trial court to render judgments giving full effect to the law. But it is contended that abatement under the statute is authorized only after it is established by the verdict of a jury that the building is being so used, and hence the interlocutory order here complained of is unauthorized. The instant judgment does not purport to be permanent. It purports to be only interlocutory, and is effective only until the case can be tried before a jury. If it be said that this judgment, directing that the premises be padlocked even for a limited period, amounts to taking the defendants' property, the answer is that the language of the judgment itself disproves such a contention. All interlocutory-injunction orders have the effect of depriving a defendant of property or the full exercise of his freedom, but this is only to the extent that it is necessary to insure against his alleged wrong until the issues involved can be adjudicated upon a final trial. InRowland v. Morris, 152 Ga. 842 (111 S.E. 389), it was held that the due-process clauses of the State and Federal constitutions were not designed to "interfere with the police power of the State," and that if the statute there involved falls within the circle of the police power, it lies out of the orbit of the due-process clauses. That decision defines the police power of the State as follows: "It is universally conceded to include everything essential to the public safety, health, and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance." There, the case involved the tick-eradication statute, which authorized the inspectors to kill infested cattle, and it was held that, although the warrant under which the officials acted was for reasons stated invalid, the action of the officers was legal, since a warrant was not necessary. The owners of the cattle contended that they should be afforded an opportunity to prove that the cattle were not infested, but this court refused to sustain that contention. In the present case, a full hearing after service of the petition was had, and the judgment complained of is based upon and supported by the evidence introduced at such hearing.

In the absence of any statutory expansion of equity jurisdiction, a public nuisance may be abated in equity by injunction only. Lofton v. Collins, 117 Ga. 434 (43 S.E. 708); Walker v. McNelly, 121 Ga. 114 (48 S.E. 718). See also State v. Atlantic Ice c. Co., 180 Ga. 285 (178 S.E. 743). In 1916, when the decisions of this court in Brindle v.Copeland, 145 Ga. 398 (4) (89 S.E. 332), and Martin v.Copeland, 145 Ga. 399 (89 S.E. 333), were rendered, there existed in this State no statute expanding equity jurisdiction with reference to abatement of a lewd house as a public nuisance. Accordingly, in each of those cases, which were proceedings in equity to abate lewd houses as public nuisances, the interlocutory judgments excepted to, in addition to enjoining the further operation of the houses, ordered them closed; and this court ordered the judgments modified by striking therefrom the provision ordering the houses closed, ruling that the trial judge had no authority under the law to order the houses closed. In the following year, 1917, the legislature enacted a law expressly empowering courts of equity to abate such lewd houses by ordering them closed. Code, §§ 72-301 et seq. The statute under which the present petition is brought expressly empowers courts of equity to abate or enjoin as a public nuisance a building or structure in which is kept spirituous liquors or beverages for the purpose of sale or other illegal disposition. Hence, an order closing such a building is authorized by law, and for the reasons stated, the decisions in the Lofton and Walker cases, supra, are not in conflict with the ruling now made.

The plaintiffs in error recognize the provisions of the statute making the keeping of liquor and beverages, which they admit were found in the building here involved, prima facie evidence of an intent to sell or illegally dispose of the same, but argue that this prima facie case was met and completely refuted by their testimony showing that they intended to use the liquor and beverages, approximately fourteen quarts, at a party to be given at a later date to their son-in-law and daughter to which about twenty-five or thirty guests were to be invited. Had the evidence stopped here, there would have been an issue of fact which would have authorized the trial judge, in the exercise of his discretion, to render the judgment complained of. Loh v.Howard, 141 Ga. 509 (81 S.E. 198). But there are other circumstances shown by the evidence, sustaining the prima facie case, such as bottles partly filled with liquor, glasses containing the odor of liquor, and at least one containing liquor itself, and a number of glasses generally used for serving mixed drinks of liquor were all found in the building; and Mrs. Davis, when informed at the door by the officers that their sole object was to search for liquor, at first refused to admit them. The judgment excepted to was authorized by the law and the evidence.

Judgment affirmed. All the Justices concur.