Davis v. State Ex Rel. Lanham , 199 Ga. 839 ( 1945 )

1. A petition alleging that, at a place of business located on a main thoroughfare, outside the corporate limits of any municipality, beer and wine are being sold: a juke box operated, both day and night, making a loud noise which disturbs and hinders the residents of the neighborhood from sleep, that drunk people congregate and come out of the place cursing, fighting, and making undue noise; and many people of disreputable character gather, may be amended by the further allegation that beer is sold there on Sunday in violation of law. Such amendment does not state a new cause of action, but merely adds to the general character of the place as a public nuisance.

2. The allegations of the petition as amended were sufficient to charge the existence of an abatable public nuisance, and therefore stated a cause of action and one which the solicitor-general could bring proceedings to abate.

3. Since the passage of the act of 1935 (Ga. L. 1935, p. 73), amending the act of 1915 (Ga. L. Ex. Sess. 1915, p. 77), by providing that "Nothing in this act shall apply to fermented beverages made from malt, in whole or in part, or any similar beverages," there is no law in this State authorizing a physical closing of a place where beer is unlawfully sold, or a physical seizure of the contents thereof, as a public nuisance, under a suit in equity, the equitable remedy being injunction and not seizure.

4. The solicitor-general of a circuit may bring an action in the name of the State, upon information furnished by relators, to abate a public nuisance; but a petition failing to name such relators is not good as against timely special demurrer calling for such information.

No. 15252. OCTOBER 6, 1945. Based upon complaints made to him, an action was brought by the solicitor-general of the Rome Circuit, seeking to abate as a public nuisance a place commonly known as the "Georgia-Alabama Beer Garden," located in Floyd County, but not within the corporate limits of any municipality, and operated and maintained by J. M. Davis, the defendant therein named. The petition alleged: that the place was being used and maintained by Davis for the purpose of a grocery store and a beer garden, where beer and wine were being sold; that many people assembled there both day and night; that the place had become a public nuisance; that citizens and residents of the county had complained to him about it; and that these complaints were: "(a) That said J. M. Davis operates an automatic phonograph, sometimes called a juke box or juke organ, which makes a loud noise, causing residents of the neighborhood great disturbance and hindering them from sleep by virtue of its loud playing; (b) the said Georgia-Alabama Beer Garden is frequented by drunk people who come out of the place of business cursing, fighting, making undue noise, and otherwise disturbing the people living in the neighborhood, and the peace and quiet of the neighborhood; and (c) that many people of disreputable character gather and congregate at such Georgia-Alabama Beer Garden, so as to create a nuisance." The petition further charged that all of said alleged acts occurred on the premises and the place of business of the Georgia-Alabama Beer Garden, and that Davis, the owner and operator, knew the same. The prayers were for process, an order directed to the sheriff to seize and hold, until the further order of the court, all of the fixtures, furniture, musical instruments, and contents of the place of business, and for injunction.

The defendant demurred to the petition, both generally and specially. The grounds of general demurrer were: first, that the petition sets forth no cause of action against him, either in law or equity; and second, the same alleges no facts upon which the prayers of the petition may be granted. The special demurrers complained of the failure to name those citizens who had informed the solicitor-general about the operation of the defendant's place; the names of those who had been disturbed by his automatic phonograph, or hindered from sleeping by the loud playing, or at what time of the day or night it was played; the names of the disreputable characters who gathered at his place, or how their presence there might contribute to the existence of a nuisance. He further demurred to the petition as a whole upon the ground that the facts alleged show that the suit is not one which the State may bring upon the relation of the solicitor-general thereto, but must be brought by the injured citizen. He further demurred to the second prayer of the petition on the ground that the allegations of the petition were not such as would authorize the relief sought, namely, a direction to the sheriff to seize and hold the fixtures, furniture, musical instruments, and contents of his place of business.

The solicitor-general offered an amendment to the petition, which was allowed over objections, further alleging that the defendant at his place of business was selling beer on Sunday in violation of law. The objections to the allowance of the amendment were: first, there were no sufficient allegations in the original petition to amend; second, the original petition, setting forth no cause of action at law or in equity, was not amendable; and third, the amendment would change and make a different cause of action. The defendant renewed his demurrer to the petition as amended, and the demurrer was overruled. Under the assignments of error, the only issues presented for determination by this court are: first, whether or not the trial court erred in overruling the objections to the allowance of the amendment; and second, whether thereafter the court erred in overruling, the demurrer.

1. The objections urged against the allowance of the amendment were without merit. "All parties, whether plaintiffs, or defendants, in the superior or other courts, whether at law or in equity, may at any stage of the cause, as a matter of right, amend their pleadings in all respects, whether in matter of form or of substance, provided there is enough in the pleadings to amend by." Code, § 81-1301. "A petition showing a plaintiff and defendant, and setting out sufficient to indicate and specify some particular fact or transaction as a cause of action, shall be enough to amend by." § 81-1302. As is shown by the petition in this case, the pleader sought to prevent the further operation and maintenance of a place of business located on one of the State's main thoroughfares — a place where beer and wine were being sold, where a juke box had been installed, and was being played both day and night. making a loud noise; where drunk people congregated, and while at the place engaged in cursing, fighting, and making undue noise; and where people of disreputable character assembled. The petitioner sought to show the existence of a public nuisance, and in this respect his petition was not lifeless and it was amendable by adding thereto, as the amendment did, that the place was also one where beer was being sold on Sunday in violation of law. The effect of the amendment was to amplify or give an additional reason why the place had become such a nuisance. The sale of beer on Sunday in violation of law merely added to the general character of the place as a public nuisance, and did not undertake to add a new cause of action.

2. The allegations of the petition, and the amendment allowed thereto, if true, show that the defendant was operating and maintaining a place of business commonly referred to by the public as a "joint." "A nuisance is anything that works hurt, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary reasonable man." Code, § 72-101. "A public nuisance is one which damages all persons who come within the sphere of its operation, though it may vary in its effects on individuals." § 72-102. A common, ill-governed place of business, kept and maintained to the encouragement of idleness, drinking, or other misbehavior, or to the common disturbance of the neighborhood or the orderly citizens thereof, is a disorderly house. § 26-6103. A place such as presented by the instant case is a public nuisance, and may be abated on proper petition by the solicitor-general, under the provisions of section 72-202 of the Code. As amended, the petition was sufficient to show the existence of a public nuisance, and the court did not err in overruling the general demurrer.

3. The defendant demurred to the second prayer of the petition, which sought an order directed to the sheriff to seize and close the place of business of the Georgia-Alabama Beer Garden, and to seize the fixtures, furniture, musical instruments, and the contents thereof.

The Code, § 72-202, so far as it provides for a suit in equity by the solicitor-general, on information, to abate a public nuisance, does not contemplate an abatement otherwise than by injunction. City of Columbus v. Oliver, 30 Ga. 506 (2).

Chapter 58 of the Code of 1933 embodies both the act of 1915 (Ga. L. Ex. Sess. 1915, p. 77), and the act of 1899 (Ga. L. 1899, p. 73), know as the "blind tiger" act, the last named act being contained in the Code, §§ 58-110 to 58-112. In Legg v.Anderson, 116 Ga. 401 (2), 405 (42 S.E. 720), it was said: "The purpose of the act was to provide that a nuisance may be abated by injunction, to be issued in the manner provided bylaw, that is, upon application to the judge of the superior court, upon a sworn petition and after a hearing, the judge having a right to grant a temporary restraining order until the interlocutory hearing, and a temporary injunction until a final hearing, and a permanent injunction after a hearing before a jury under existing rules." See also Cassidy v. Howard, 140 Ga. 844 (3) (80 S.E. 1). Therefore it took the act of 1915, supra, and Code, §§ 58-101 58-109, to authorize the physical seizure of property in an equitable proceeding against the sale of liquor and other intoxicating beverages in violation of law; the remedial provisions of that act being broader than those contained in the "blind tiger" act of 1899. Pullen v. Meadors, 196 Ga. 796,801 (27 S.E.2d 655). While the sale of beer was prohibited by the act of 1915, and thus was embraced within the remedy of seizure under that act, yet, by the act of 1935 (Ga. L. 1935, pp. 73, 79), the act of 1915 was amended by adding a clause to be known as clause 3, reading as follows: "Nothing in this Act shall apply to fermented beverages made from malt, in whole or in part, or any similar beverages." It was alleged, however, that the defendant was selling beer on Sunday; and by the act of 1937 (Ga. L. 1937, opp. 148, 154, section 6), this was made a criminal offense. Whether or not the violation of this law as to selling beer on Sunday would bring the case within the original "blind tiger" act, need not be determined, since, even if so, that law, as we have seen, does not provide for a physical seizure of property on the premises, as prayed by the petitioner in this case; and, since the transaction would not fall within the act of 1915, as amended by the act of 1935, there is no law that would authorize the grant of that prayer in such an equitable suit. And this is true, notwithstanding, as indicated in division 1, supra, the sale of beer on Sunday in violation of law added to the general character of the place as a nuisance, and an amendment alleging such illegal sale was not objectionable as adding a new and distinct cause of action.

It follows that the judge erred in not sustaining the demurrer to the second prayer of the plaintiff's petition, as stated above.

4. The court erred in failing to sustain the ground of special demurrer calling on the pleader to name his relators. The petition alleged: "That during the month of March, 1945, complaints had been made to him by citizens and residents of the county concerning the operation of defendant's place of business." No allegation in the petition named such relators. This court has held, in Brindle v. Copeland, 145 Ga. 398 (89 S.E. 332), that a public nuisance and its maintenance may be abated by injunction on petition brought by the solicitor-general in the name of the State, on information of one of its citizens. Properly construed, the instant petition was brought in the name of the State by the solicitor general, on information of citizens, and the defendant was entitled to know, when such information was called for by a timely special demurrer, who his accusers were. The other grounds of special demurrer have been carefully examined and are without merit.

Judgment affirmed in part, and reversed in part. All theJustices concur, except Jenkins, P. J., Atkinson and Wyalt, JJ.,who dissent.