State v. Matheison

42 N.W. 377, 77 Iowa 485, 1889 Iowa Sup. LEXIS 224

• Court: Supreme Court of Iowa
• Decided: May 17, 1889
• Status: Published

Opinion

Given, C. J.

I. The only question to be determined on this appeal is whether under the testimony there should not be a decree for permanent injunction against the defendants, and judgment for costs, including an attorney’s fee. Ten witnesses were examined in behalf of the state. One testified that defendant Charles Matheison had paid an internal revenue tax as a retail liquor dealer at Lone Tree, Iowa, April 30, 1887, and that fifty dollars to sixty dollars would be a reasonable attorney’s fee for prosecuting this case. Another testified that on notice the district attorney refused to prosecute this case, and another that “the reputation of Matheison’s place in the community is that it is a place where they sell something stronger than cider or beer — something calculated to intoxicate.” The other seven were called to show the keeping for sale and selling intoxicating liquors, and testified with a reluctance so frequently manifest on such examinations. The testimony of four of them shows very satisfactorily that at different times the defendant Charles Matheison had furnished each of them with whiskey in his place. Neither testified directly to payment; but their statements leave no doubt but that' it was furnished for a consideration, and under the circumstances show an intention to evade the provisions of the statute. Two testify to the purchase of cider. The defendant testified that he did not sell sweet apple cider, but champagne and peach cider. The other witness for the state testified to the purchase of “zodone,” which “I said looked like whiskey, I supposed was whiskey. I would not say it was poor whiskey, exactly. I do not know what it was. It never had any effect on me. If you would drink enough it might. I do not think it was part whiskey. I got it because I wanted something to stimulate me.” There was testimony as to the sale of “hotshot” and other drinks. The only reference in the testimony to the defendant Mrs. Charles Matheison is in the testimony of De Forest, that when he called for whiskey, Charles Matheison said he did not keep whiskey for sale, but his wife had some that she kept for her private nse, and that he went and got the whiskey, and handed it to them over the counter. The defendant testified that he never sold, or kept for sale, intoxicating liquors in his place; that the drinks he sold were not intoxicating; that he took out a government license, as his neighbors were troubling him, and it was cheaper to pay twenty-five dollars to the government than to run the risk. He also testified as to the manufacturers from whom he got the drinks that he sold, and that none of them were intoxicating. John Reed, son-in-law of the defendant, testified that he was about the place a great deal, and never knew of the defendant’s keeping or selling any intoxicating liquors, and that “hot shot,” “zodone,” and other drinks kept by the defendant, were not intoxicating.

It is evident from this testimony that the defendant kept a public eating-house and restaurant; that he kept intoxicating liquors; that he paid special tax to the United States as a liquor dealer ; and that the reputa- • tion of his place was that of a place where intoxicants were kept and sold. Adding to the presumptions that arise under the statute from these facts the testimony tending to show actual sales, we cannot doubt that the allegations of the petition were fully established, and that an injunction should issue. We think that fifty dollars was a reasonable attorney’s fee for prosecuting the case in the district court, and that an additional $- should be allowed for prosecuting this appeal. The decree of the district court is affirmed as to the defendant Mrs. Charles Matheison and reversed as to the defendant Charles Matheison. A decree should be entered against Charles Matheison, granting an injunction as prayed, and judgment for costs, including an attorney’s fee.