Webb v. United States

14 F.2d 574, 49 A.L.R. 612, 1926 U.S. App. LEXIS 2087

• Court: Court of Appeals for the Eighth Circuit
• Decided: August 14, 1926
• Docket: No. 7196
• Status: Published

Opinions

LEWIS, Circuit Judge.

Plaintiff in error complains of a judgment finding Mm guilty of contempt and imposing on Mm a fine of $500 and 7 months’ imprisonment. The proceeding agaMst him was brought under section 24, tit. 2, the National ProMbition Act (41 Stat. 315 [U. S. Comp. St. Supp. 1923, § 10138%S]) by information, from wMeh and the proof it appears that the district attorney filed in the court below on April 15, 1922, a bill in eqMty ehargmg Webb and three other named persons with the maintenance - of a common nmsanee on described premises in Kansas City, as that term is defined by section 21, tit. 2, of said act (Comp. St. § 10138%jj). Injunctive relief was asked under section 22 of title 2 (section 10138%k), on which the bill was bottomed. At final hearing on June 3, 1922, the court found the allegations in the bill to be true, and‘ordered, as that section directs, that no liquor should be manufactured, sold, bartered, or stored in or upon the premises, described as a certarn one-story stone building and basement located on named lots belonging to Webb and then in the possession of Webb and Ms tMee named associates. It was further ordered that Webb and Ms associates be enjoined and restrained from oeeupyMg or using the premises for a period of one year, and that the United States marshal securely lock all doors to the building. On October 20th following, the court found that one Buford had become the bona fide purchaser of the premises, and thereupon modified its pri- or order by ordering that the premises be released to Buford on the giving of a bond in the sum of $1,000, conditioned that intoxicating liquors should not be thereafter .manufactured, sold, bartered, kept, or otherwise disposed of in said premises during a period of one year from June 3, 1922. See section 22, title 2. Buford seems to have Mtended to use the premises in conjunction with his dairy busmess, but he soon sold to Sinclair, and Webb then went back into possession and managed the business that was carried on there for Sinclair. The whole tract comprised about 7 acres of suburban property, and there were several buildMgs on it. The stone building that was padlocked and then released to Buford on bond was a well-known plaee where cMcken dmners were served. It had accommodations for 300 people, and that many-were at times present and seated for service.

The information for contempt, on which Webb was found guilty, was filed on February 2,1925, and it charged that Webb on November 4, 1924, sold to one Kissinger about eight ounces of whisky on the premises described in the injunctive order of June 3, 1922, and that the sale was in violation and defiance of that order and was contemptuous. A criminal information was also filed against Webb, charging him with the sale in violation of sections 3 and 29, but that ease had not been tried when the hearing in this case was had. It was not claimed that Webb made the sale himself. Mr. Kissmger, a prohibition agent, testified that he went to the plaee for dinner on the night of November 4,1924; that he ordered four drinks of whisky for himself and three companions from a negro waiter, to be brought to them with the dinners; that they got the whisky, and he paid $3 for it. Webb testified that he knew nothing of the transaction; that he had no liquor on the place; that the waiter who served Kissinger was an extra for that night only, that being election day and a large crowd was expected. There was testimony tending to show that Webb knew the waiter was making the sale, consented to its being made, and collected the $3 along with pay for the dinners, and so we accept the court’s finding that Webb made it. But there was no evidence that liquors of any kind had been manufactured, sold, bartered, or stored on the premises after the injunctive order of June 3,1922, aside from this one isolated transaction; and the question presents ed to us is whether the sale made to Kissinger on November 4,1924, can be field to fiave been in violation of the court’s injunction of June 3, 1922.- At the close of all the evidence, counsel for plaintiff in error moved that he be acquitted of the charge because the evidence was not sufficient to sustain a finding that fie was guilty of contempt. The motion was denied, and exception saved.

Applying the facts as they were found by the court to the law, we conceive that two questions were presented for consideration on the motion: First, Had the nuisance been abated and the court’s power in the equity suit spent and exhausted when the sale was made? and, second, Did the injunctive order against making sales in the building include an isolated sale such as this, made two years and five months after the court’s order, or is it the purpose of section 22 of the act to enjoin only future conduct that would constitute a renewal or continuance of the nuisance ? These are questions of law and the answers to them are found in a correct understanding of the act taken in its entirety. Section 21 defines nuisance thus:

“Any room, house, building, boat, vehicle, structure, or place where intoxicating liquor is manufactured, sold, kept, or bartered in violation of this title, and all intoxicating liquor and property kept and used in maintaining the same, is hereby declared to be a common nuisance.”

And that section further subjects the person who maintains the nuisance to .prosecution as having committed a misdemeanor for which on conviction he may be both fined and imprisoned. For the purpose of abating the nuisance, section 22 affords a speedy and effective civil remedy by injunction against those maintaining it and by securely closing the premises against any use for one year. In Schlieder v. United States (C. C. A.) 11 F.(2d) 345, 347, it is said:

“The fundamental principle upon which section 22 depends for its validity is that it is intended to authorize the abatement of a nuisance by a suit in equity and to go no further.”

The period named during which the building may by order of court be kept under lock by the marshal must, we think, be taken as the expression by Congress of its judgment that the premises if closed would lose during the lapse of one year the bad reputation which they had acquired as a place of resort by those inclined to encourage violations of section 21, and as declaring a rule that the nuisance would thereby become abated. We are unable to see any other reason or purpose for fixing the time. Of course, the provision for closing is in aid of abatement by injunction and may or may not be resorted to, but here the power was exercised; a bond being substituted by order of the court for a part of that time. Without the closing order, the nuisance might become wholly abated, as effectively so by the injunctive order ’as if the premises had been kept locked by the marshal. The statute makes no provision for a judicial ascertainment of that fact. Had it done so, and had the fact of abatement been judicially found, the premises thereafter would, we think, be relieved from the taint of unlawful practices and the bad reputation thus east upon them. In that event it could hardly be said that the decree in the equity suit had not been fully satisfied and the court’s power in that suit brought to an end. The premises themselves, standing alone, do not constitute the nuisance. They and the intoxicating liquors kept and used there constitute the unlawful thing, defined as a nuisance. When the building has been cleared of the liquors and the unlawful practices there brought to an end, the nuisance becomes abated. Here there is -no word of testimony tending to show that any liquor was manufactured, kept, sold, or bartered in the stone building or elsewhere on these premises from June 3,1922, to November 4, 1924, a period of two years and five months, and during that time title to the property passed, as found by the court, to a bona fide purchaser. We think on the facts of this case it must he held that the nuisance which the court ordered abated in June, 1922, had been wiped out long before November, 1924, and its decree thus wholly executed. Its judgment had been satisfied, and its power in that suit had terminated.

But, for the sake of argument, let it be conceded that the order of June 3, 1922, enjoining “that no liquor shall be manufactured, sold, bartered, or stored in or upon the premises” was still in force and effect on November 4,1924, when Webb made the sale to Kissinger. The order followed literally the terms of section 22, and it was that order which was alleged to have been violated, because of the sale to Kissinger. If we adhere to the literal words of the statute repeated in the court’s injunctive order, there, of course, can be no doubt of Webb’s guilt. The district attorney, in presenting the ease below, took that position and argued “that for all time there should be no intoxicating liquor sold there.” The learned District Judge at first thought the proposition debatable, but apparently accepted that view in making his final decision. This seems to ignore the one plain purpose of section 22, and excludes from consideration other parts of the act. Did that order cover an isolated sale? There was no attempt to show that the circumstances under which the sale was made to Kissinger constituted a continuance or renewal of the nuisance which the court had ordered abated, nor was that the charge in* the information against Webb for contempt. He was also charged by another information criminally with making the same sale. A single sale may be made under circumstances which establish the maintenance or continuance of a nuisance. Lewinsohn v. United States (C. C. A.) 278 F. 421; Schechter v. United States (C. C. A.) 7 F.(2d) 881; Hermansky v. United States (C. C. A.) 7 F.(2d) 458. But the maintenance of the nuisance implies a continuity of criminal action extending over a substantial period of time. Reynolds v. United States (C. C. A.) 282 F. 256; Schechter v. United States, supra. In Barker v. United States (C. C. A.), 289 F. 249, it is held:

“We do not mean to be understood as deciding that a single sale of liquor, or the mere unlawful possession of liquor, under all circumstances may be construed to be a violation of section 21, because so to decide would be to render meaningless the other provisions of the law in which the Congress has denounced these specific acts, and provided punishment for their violation.”

The same court held in Muncy v. United States (C. C. A.) 289 F. 780, that sale of a pint of whisky was insufficient to establish the maintenance of a nuisance where no other liquor was found on the premises or on the defendant’s person. That is not the charge or claim in this case. The sale to Kissinger is ’ treated as a single sale, clearly made in violation of sections 3 and 29, tit. 2, of the act (Comp. St. §§ 10138%aa, 10138y2p).' Reverting to section 22, under which the injunction suit was maintained and the order made, it seems clear that it deals exclusively with the nuisance and provides a method of suppressing it. It grants, so far as needed, the requisite power for that purpose, and we think it discloses no other purpose. Single sales, as such, lie outside of its purview and could not be brought within it. Acts of the defendant which would not constitute the nuisance charged in the equity suit, or its continuance, do not come, within the purpose of the section; but acts which could be said to be in continuance of the nuisance before it was fully abated would appropriately be within the power of the court to be exerted in fully and finally abating it; and such acts would be in resistance to the court’s order of abatement. This, we take it, is the sense in which the clause in the decree copied from section 22 should be taken; that is, a prohibition of sales which operated to continue the nuisance before it had been suppressed. That was the situation considered by the court in the Lewinsohn Case and in McGovern v. United States (C. C. A.) 280 F. 73. In each sales were continued within a month after the court’s order. To accept the view advanced by the district attorney would raise grave doubt as to the constitutionality of that clause, and such doubt should be avoided in applying the statute when it can be given a rational and effective meaning in undoubted accord with the Constitution. U. S. v. Standard Brewery Co., 251 U. S. 210, 220, 40 S. Ct. 139, 64 L. Ed. 229; U. S. v. Jin Fuey Moy, 241 U. S. 394, 401, 36 S. Ct. 658, 60 L. Ed. 1061, Ann. Cas. 1917D, 854; Panama R. Co. v. Johnson, 264 U. S. 375, 390, 44 S. Ct. 391, 68 L. Ed. 748; U. S. v. Walter, 263 U. S. 15, 44 S. Ct. 10, 68 L. Ed. 137. Webb was not charged with making the sale in continuance of the nuisance which the court had ordered abated, and thus resisting the enforcement of the injunctive order, nor would the proof have sustained such a charge had it been made. He was charged simply with the one sale to Kissinger, made two years and five months after the court’s order and after the nuisance which the court enjoined had been abated. The court went no further in its findings on the contempt charge than that he made the sale. That sale was clearly in violation of sections 3 and 29, and on the question of guilt as to that offense Webb had the constitutional right to be appropriately charged and to a trial by jury. To so construe the clause in section 22, embodied in the decree, as to make Ms act contemptuous, is, to say the least, a gravely doubtful construction of that section when its evident purpose and the other sections of the act are borne in mind and given their intended meaning and effect; and tMs is aside from the necessity of restraining the clause within constitutional limitations. In the Standard Brewery Case the Supreme Court said:

“Furthermore, we must remember, in considering an act of Congress, that a construction which might render it unconstitutional is to be avoided. We said in United States v. Jin Fuey Moy, 241 U. S. 394, 401 [36 S. Ct. 658, 659 (60 L. Ed. 1061, Ann. Cas. 1917D, 854) ]: ‘A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.’ ”

We think the court erred in denying the motion at the close of the evidence, and the judgment is reversed with directions to dismiss the information for contempt.