State v. Smithhisler

189 P. 135, 106 Kan. 587, 1920 Kan. LEXIS 609

• Court: Supreme Court of Kansas
• Decided: April 10, 1920
• Docket: No. 22,465
• Status: Published

Opinion

The opinion of the court was delivered by

Marshall, J.:

This action was brought by the plaintiff under the intoxicating liquor law to enjoin the defendants from maintaining a nuisance. A temporary injunction was granted, and from the order granting that injunction the defendants appeal. Their contention is that the evidence showed that the place was closed at the time the action was commenced, and had been closed for some days prior thereto; and that therefore no injunction should have been granted. The evidence showed that the defendants had sold Jamaica ginger, Wine of Life, Beef, Wine and Iron, Hostetter’s Bitters, etc., and that these articles had been sold by the defendants for a long time prior to the commencement of this action, and up to within a very few days of that time. No question is raised concerning the intoxicating character of the articles sold.

The cross-examination of the plaintiff’s witnesses developed that the defendant had stated that he had sold the place and had closed it before the action was commenced. After continued sales of intoxicating liquor extending over a period of months, an injunction cannot be avoided by ceasing to sell such liquors a few days before an action for an injunction is commenced. It is an easy matter to sell intoxicating liquors for a time and, when a storm is brewing, cease such sales and close the place until the storm has passed by, and then resume the sale of such liquors, and repeat that operation until the state is successful in getting the place closed.

The evidence was sufficient to justify the court in granting a temporary injunction.

The judgment is affirmed.

Porter, J., dissents.