Norris v. State Ex Rel. Willingham , 204 Ga. 441 ( 1948 )

1. The petition set forth a cause of action as against a general demurrer.

2. While a single transaction might not be sufficient to authorize abatement of a place of business as a common nuisance, in that the law contemplates some continuity of violation, yet evidence as to one illegal sale of whisky, coupled with corroborative circumstances indicating a continuity of such conduct, is sufficient to authorize the abatement of a place of business as a common nuisance.

(a) Although the evidence authorized the abatement of a nuisance, the order of the trial court was too broad, in that it required the padlocking of the entire premises of the defendant, notwithstanding all the evidence as to illegal sales of whisky related solely to the defendant's place of business, there being no evidence of a sale or location of whisky in his dwelling; and the trial court, therefore, abused its discretion in passing so much of the order as would result in the padlocking of the defendant's dwelling and the dispossession of his family.

No. 16369. OCTOBER 13, 1948. Frank B. Willingham, Solicitor-General of the Flint Circuit, brought an action seeking to abate as a common nuisance a place of business operated in Butts County, commonly known as "Bo's Place." The petition alleged: that Butts County is a dry county; that W. T. Norris is the owner and proprietor of the tavern or roadhouse situated in Butts County and known as "Bo's Place;" that warrants had been sworn out against Norris, charging him with the illegal sale of whisky, the illegal possession thereof, and with conducting a gambling establishment in said premises; that the owner of the establishment had made application for an internal revenue special tax receipt, required by the laws of the United States for a retail liquor dealer, and the application had been granted and the license was in effect for the fiscal year ending June 30, 1948, and was still in effect at the time of bringing the suit.

On information and belief, the petitioner charged that the defendant "did sell and barter for a valuable consideration at said place of business a quantity of legally stamped liquors to T. E. Wooten, which is a misdemeanor under the law," and that the defendant did have and keep prohibited liquors in his possession at the place of business.

The petition alleged, upon information, that the place of business is what is commonly known as a "blind tiger," where liquor is unlawfully sold, and kept for sale, and where gambling machines are installed and operated, and that the place of business is a nuisance and subject to be abated and padlocked. The prayer was for an injunction restraining and forbidding the keeping or sale of any intoxicating liquors in the place of business, as well as the keeping or maintaining of any gambling device therein, and that the premises be abated as a nuisance and padlocked.

The defendant answered, admitting that he was the owner and operator of the place of business described in the petition, and that Butts County is a dry county, in which liquor can not be lawfully sold. He admitted the issuance of the criminal warrants against him, but denied that he had committed any crime. He denied that he had purchased the liquor license as referred to in the petition, but admitted that "he purchased said license under the following circumstances: The defendant, on June 1, 1947, was licensed in Butts County by competent authority to retail beer and light wine. Federal statutes required him to obtain a Federal license to retail beer and light wine. He made application to an agent of the United States Government authorized to issue such licenses. He was advised by such agent that both licenses would cost $22.50 for the fiscal year beginning June 1, 1947; that a separate license would be necessary to authorize him to sell wine, and that the license, to sell wine also included a license to sell ardent spirits, and that, if he would pay $27.50, he could obtain an all-inclusive license which would permit the sale of any character of beverage. The defendant denies that he applied for or purchased a license to sell ardent spirits, but says that such license was incidental to the license which he applied for and was not severable; that is to say, he could not have purchased a license to sell wine without acquiring a license to sell ardent spirits. He further says that the said agent of the Federal Government told him that this license would protect him in the event a sale of whisky was made in his place of business by any of the dozens of ``pocket bootleggers' operating around Indian Springs, whose sale in his place might possibly be attributable to him. It was because of the representations made by said agent and the advice given him by such agent that he added $5 to the purchase-price of the license which he needed in order to procure an all-inclusive license. He did not purchase said license in order to sell whisky." The defendant denied the other allegations of the petition.

At an interlocutory hearing, C. E. Wooten testified for the plaintiff as follows: "I am an agent of the Revenue Commissioner of Georgia assigned to the enforcement of laws and regulations governing the sale of alcoholic beverages. On June 22 of this year I went to the place of business of Mr. W. T. Norris, known as Bo's Place, located in Butts County, about four miles South of Jackson. Mr. C. W. Burge, another agent, was with me. I went into Mr. Norris' place and told him I wanted to buy a pint of whisky. He asked me what kind, and named over several brands. He named over Seagram's Seven Crown, and I told him I would take that. I bought a pint and paid him $4 for it. It was tax-paid liquor. While in there I saw a horse-racing machine. It had a slot in which anyone who wished to play might insert a nickel. Several people were putting in nickels. I put in some nickels myself. The only thing which happened when a nickel was inserted was: several mechanical miniature horses raced, sometimes one reached the post first, and sometimes the other. I saw several people playing the machine, but I did not see the machine pay any premium, nor do anything except the odds changed with each play and the machine would race the miniature horses. Some people did get amusement out of watching the horses run. There was no skill in making the horses run. It was all chance. I did not see any whisky stored in the place, nor any beer. I bought the liquor in a large room equipped to serve meals and sandwiches, and this horse-race machine was in that room. I later learned that Mr. Norris and his family lived in the building and occupied all of the rooms except the one in which I bought the whisky."

The plaintiff introduced, without objection, a certificate of Marion H. Allen, Collector of Internal Revenue, certifying to the correctness of a permit entitled "RLD," issued to Bo's Place, on Highway 42, four miles South of Jackson, Georgia.

The defendant introduced numerous affidavits of persons who testified that they lived in the immediate neighborhood of Bo's Place; that it was quiet and peaceable; that the defendant was a man of good character and repute; that they had never known of anything indecent or disorderly about his place of business; and that they and their neighbors often visit his place with their families.

At the conclusion of the interlocutory hearing, the court entered the following order: "It is ordered, adjudged, and decreed that until the further order of court, the defendant named and all other persons be and they are enjoined from occupying or using the building known as ``Bo's Place,' described in the petition, for any purpose at any time, and that the Sheriff of Butts County and his lawful deputies securely lock and fasten the said building so as to prevent its use or occupancy by defendant or others." To this judgment the defendant excepted, also assigning error on the overruling of his demurrer to the petition. 1. It is urged by the defendant that the petition was subject to general demurrer, (1) because it was brought by the solicitor-general and not upon the application of a citizen or citizens of the county; and (2) because the petition alleged only one illegal sale of liquor.

By the Code, § 58-109 (Ga. L. 1915, Ex. Sess., p. 83), it is provided that any room or structure used for the unlawful manufacture, sale, keeping for sale, or other unlawful disposition, of liquors, and all shops, houses, or places where liquors are unlawfully sold or kept for sale are common nuisances and may be abated as such upon the complaint of the Attorney-General, or the solicitor-general of the circuit, or any citizen or citizens of the county. There is patently no merit in the first contention urged by the defendant.

The petition is not subject to the second criticism made. While the petition alleges only one illegal sale to a particular person, it alleges that the defendant had obtained a Federal license as a retail liquor dealer, and alleged that the place of business is what is commonly known as a "blind tiger," where liquor is unlawfully sold and kept for sale. These allegations, together with the other allegations of the petition, are sufficient to set forth a cause of action, as will more fully appear from the rulings on the evidence.

2. Counsel for the defendant rely principally upon the case ofFoster v. Carrollton, 68 Ga. App. 796 (24 S.E.2d 143), where the court said: "A statutory provision declaring that any place where intoxicating liquor is sold, kept, or bartered in violation of law is a nuisance, and authorizing its abatement by the proper authorities, contemplates some continuity of such violation of law, and does not mean that a single instance of sale, possession, or barter would come within the purview of such statutory declaration as to an existing nuisance." The Foster case, where there was evidence only of possession of less than two quarts of whisky on three or four occasions, and evidence which might possibly have been construed as an admission by the defendant of one sale, is in harmony with adjudications by this court; and if it not, it must yield to controlling decisions of this court.

This case is controlled by the full-bench decision of this court in Lokey v. Davis, 194 Ga. 175 (21 S.E.2d 69). There the proof showed only one illegal sale of whisky to an employee of the State Department of Revenue, and further showed that at a time previous to the sale this employee had tried to buy a pint of liquor from an employee of the defendant; that the defendant's employee stated "that he did not have any liquor, that things were so hot around there he could not let him have anything, and that he did not know him." This court upheld an order enjoining the defendant from continuing any further business in the premises. The language used by this court in theLokey case is peculiarly applicable to the facts of this case. It was there said: "It is not the act of possessing liquor or selling liquor that the above statutes [Code, §§ 58-109, 58-110] declare to be common nuisances, but it is the structure maintained and used for the purpose of keeping or selling therein intoxicating liquors that is declared to be a common nuisance. While one isolated act of selling a pint of whisky in such structure, in the absence of any evidence or circumstances to indicate that the structure was being used for the purpose of carrying on such business, would in our judgment be insufficient to authorize the grant of an interlocutory injunction, yet where as in the present case there is positive testimony, which is not contradicted, that there was one actual sale of liquor within the premises described, and that upon another occasion an employee assigned as a reason why he would not sell liquor at that time the fact that he did not know the person seeking to buy, and that conditions prevailing at the time made it dangerous, the judge was authorized to find from this evidence that the premises were being used continually for the purpose of keeping and selling whisky in violation of law. It is true that the defendant produced the testimony of a number of neighbors which establishes the fact that the business was conducted in an orderly and decent manner, and that these witnesses had no knowledge that liquor was being kept and sold there. This evidence, however, does not contradict the evidence produced by plaintiff, and it does not render the premises any less a nuisance. In Gullatt v. Stateex rel. Collins, 169 Ga. 538 (4-b) (150 S.E. 825), it was said: ``The conduct of this place in an orderly manner and the attendance of the best people in the community, including both males and females, does not render such place any the less a gaming-house or a gaming-place.'"

It has now been definitely established by this court that, while a single transaction might not be sufficient to authorize abatement of a place of business as a common nuisance, in that the law contemplates some continuity of violation, yet evidence as to one illegal sale, coupled with corroborative circumstances indicating a continuity of such conduct, is sufficient to authorize the abatement of a place of business as a common nuisance. See Bracewell v. Cook, 192 Ga. 679 (16 S.E.2d 432); Sprayberry v. Wyatt, 203 Ga. 27 (45 S.E.2d 625);Edgeworth v. Wyatt, 202 Ga. 708 (44 S.E.2d 542); Davis v. Stark, 198 Ga. 223 (31 S.E.2d 592).

The Code, § 58-113, provides that in a trial "to abate or enjoin any common nuisance . . any application for an internal revenue special tax receipt of the United States, as required by the laws of the United States, or any internal revenue special tax receipt as required by said laws for retail or wholesale of spirituous, malt or intoxicating liquors in this State, shall be prima facie evidence of guilt, and shall be sufficient to charge the burden of proof on the defendant in any such case." While, as held in Allen v. State, 11 Ga. App. 245 (75 S.E. 11), such prima facie evidence may be rebutted by other evidence, such as uncontradicted testimony to the effect "that the accused had not in fact sold any intoxicating liquors," the trial judge in the present case was amply authorized to find that such prima facie evidence had not been successfully rebutted. The defendant offered no evidence except affidavits as to his character and the reputation of his place of business, as before indicated, and his sworn answer. In view of the uncontradicted evidence showing the unlawful sale of whisky, after the application for and issuance of a retail liquor license, the trial judge was not bound to accept or believe the defendant's assertion that he did not buy the license "in order to sell whisky;" nor was the judge bound to accept his explanation of his reason for applying for the license.

Since the evidence showed an illegal sale of whisky, coupled with other circumstances, such as evidence showing that when the sale was made the defendant named over several brands of whisky from which the buyer might choose, and proof of an application for and issuance of a retail liquor license, in effect at the time of the sale and the bringing of the suit, the trial judge, in the exercise of his discretion, was amply authorized to find that the defendant's place of business was a common nuisance at the time the action was instituted, which was three days after the date of the illegal sale.

Notwithstanding our opinion that the trial judge was authorized to abate the defendant's place of business as a common nuisance, we are inclined to the opinion that the order of the judge was too broad in its terms. While the Code, § 58-109, defines as a common nuisance, subject to abatement, any "rooms or structures," or any houses, shops or places used for the unlawful sale of liquors, we do not think that, under a proper interpretation of the statute, an entire building could be abated as a nuisance, without some evidence tending to show, as in the case of Pullen v. Meadors, 196 Ga. 796 (27 S.E.2d 655), that different portions of the building were "operated as a unit; and that in such operation intoxicating liquors were kept and sold in violation of law." If we should give to the statute a literal interpretation, it might lead to a construction whereby an entire building or structure might be abated as a nuisance, notwithstanding different persons operated different businesses in different portions of the building and only one such business was operated as a nuisance.

In the present case the undisputed evidence showed that the defendant's place of business, where he operated a cafe and tavern, occupied one portion of a building, separate and apart from his living quarters, where he and his family resided. All of the evidence as to illegal sale of whisky related solely to his place of business, there being no evidence as to a sale or location of whisky in his dwelling. In these circumstances, we think that the trial judge abused his discretion in passing so much of the order as would result in the padlocking of the defendant's home and the dispossession of his family.

The judgment is affirmed, with direction that the order be so modified as to eliminate from its operation the padlocking of that portion of the building occupied as a residence, and so as to allow the use and occupancy of that portion of the building as a dwelling.

Judgment affirmed with direction. All the Justices concur,except Duckworth, C. J., and Candler, J., who concur in thejudgment of affirmance, but dissent from the direction given, andBell, J., absent on account of illness.