Pullen v. Meadors , 196 Ga. 796 ( 1943 )

Under the pleadings and the evidence, the judge was authorized to find that the defendants' entire place of business, including a dining-room and a dance-hall, was used as a unit for the illegal sale and use of intoxicating beverages. It was not error to order such place of business closed, and to enjoin the defendants from using it for any purpose, until further order of the court; but since the order was entered on interlocutory hearing, so much of it as enjoined the defendants permanently was unauthorized, and direction is given that it be so changed as to be operative only until final trial or further order.

No. 14662. NOVEMBER 9, 1943. On June 21, 1943, a petition was filed in the superior court by the solicitor-general of the Coweta Circuit upon information of the sheriff of Heard County, against Mrs. Christine Pullen, Charlie Hollingsworth, and William Fleming, alleging, that the defendants operated a place of business at a described location in such manner as to amount to a public nuisance, tending to injure the health of the citizens in general, and to corrupt the public morals; that said place is used for the sale, keeping for sale, and unlawful disposition of intoxicating liquors; that persons are permitted to resort to said place of business for the drinking of such liquors; that men and women are permitted to assemble at said place for unlawful and immoral purposes, lewdness, and indecent behavior; that said place is a blind tiger; and that sale of whisky and intoxicating liquors in Heard County is prohibited by law. It was prayed "that said place be declared to be a nuisance and the same be abated as such, and that the defendants . . be permanently enjoined from operating any business on the above-described premises for any purpose whatsoever, and that this court pass an order requiring said building to be closed and locked by the sheriff, . . and from any and all people for any and all purposes," and that the court "pass such other order or orders which may in the discretion of the court abate such nuisance."

The material paragraphs of the answer were as follows:

"4. The defendant Mrs. Pullen owns and lives in a certain dwelling in said county, where the other defendants also reside; in connection with said dwelling there is a dining-room and kitchen where defendants serve meals to the general public and where they themselves eat. There is also a large room which is used by the public who desire to dance, but no charge is made for the use of said room in dancing.

"5. When this petition was filed and for some time before, nor since the filing of the petition, has either of these defendants had in said place or around said place any whisky, wine, or beer. That they do not sell, furnish, or have in their possession any wine, whisky, or beer. That no violation of the law is carried on at or around said place.

"6. No misconduct is carried on at or around said place of business, and the customers who come to get fish dinners and patronize the place at this time are good people from Newnan, Carrollton, Franklin, Villa Rica, and Bowdon, and they bring their wives; and there is no misbehavior.

"7. Defendants further show that they do not expect and are not going to sell or furnish any one any whisky, wine, or beer at said place of business.

"8. Defendants further show that there is no loud talking or loud noise or any misconduct at or around said place, and nothing is done to annoy the public. That there is nothing carried on that interferes with any of the citizens who live in the community."

On interlocutory hearing the State introduced affidavits of several officers to the effect that they "raided" the premises on May 22, 1943, and found quantities of gin, whisky, and brandy. One of them stated: "The general reputation of Pullen's Fish Camp is bad . . . On this raid the following assortment of whisky was seized: 5 quarts of London dry gin; 5 pints of Bourbon Supreme; 2 1/2 quarts of Shady Tree Apple Brandy; 3 1/2 pints of Sunnybrook; 1 pint of Hiram Walker Emperial; 1/4 pint of Tom Hardy. On this raid Charlie Hollingsworth and William Fleming were standing behind the bar. Several partially filled bottles of whisky were on the counter and on the shelves behind the bar. There were also soft drinks on the counter, and several medium-sized drinking glasses. Mrs. Pullen was present during this time. When I first saw her she was in the kitchen. The dance-hall was filled with dancers and the nickelodeon was playing. . . Several people were drinking, and one woman was practically drunk, and this intoxicated woman came up to me and asked me to go to the bar with her, and she tried to give me a 50 ¢ piece and said she would pay for my drink. During all this time Charlie Hollingsworth, who was working there, was very excited; he was running from room to room and conversing with different people. There was lots of loud talking and cursing going on." Another officer testified: "I asked Mrs. Pullen if she had a Federal retail liquor license, and she replied that she did have a Federal license. I did not see the licenses, nor did she offer to produce them. She stated that she was trying to run a respectable place, and that no moonshine whisky was sold there, and if any one was drinking moonshine whisky at the place that they brought it there themselves.

The sheriff testified: "I know the place known as Pullen's Fish Camp. I went there on May 22, 1943, in company with [other officers named]; in this place is a fish camp where they serve different meals, chicken, and fish, and they have a drink stand in there. On this particular night I led the officers in this place; I went up the stairs, and at the top of the stairs I turned to the right into the bar-room. Immediately in front of first door is the dance-hall. After entering the dance-hall the next room is dining-room, and immediately to the right is the bar-room. The dance-hall is immediately left of the dining-room. In order to reach the bar-room you have to turn right back facing the way you enter; you go in and make a circle. The bar-room is described as follows: There is a wall about 3 1/2 feet high reaching half way across this room. There are two bedrooms opening into the bar-room. One bedroom opens into the room in front of counter, and Mrs. Pullen's bedroom opens into this room back of counter. The counter extends diagonally across the room. Back of this counter is where drinks are kept. There were a good many people there that night, men and women. I would say a large crowd. They were drinking and dancing; some were in the dance-hall, some at the counter. When I reached a point where I could see in the bar-room I saw at least eight or ten people in there. I stood there two or three minutes before they recognized me. During that two or three minutes I saw Hollingsworth and Fleming back of the counter. Hollingsworth was pouring whisky in cups. Some of the people were drinking beer. I saw customers pass money across the counter to Hollingsworth, but I couldn't tell the exact amount. This was at Pullen's Fish Camp in Heard County, Georgia. Charlie Hollingsworth and William Fleming were back of the bar; they stay and work there. . . With reference to a retail liquor license Mrs. Pullen said she did not think it was against the law to sell whisky with a license; but Heard County is a dry county and I knew Mrs. Pullen could not get a license in Heard County."

Another witness testified: "I live in Heard County, Georgia, in the neighborhood of Pullen's Fish Camp. . Last time I was there was about a month ago. I know where the liquor bar is in that place. . . I have bought some liquor there. . . Something about a month ago is last I bought. Generally bought it in any amount I could get, have bought it by the drink. . . Most of time when I went there it was pleasant; sometimes it was rough. Generally the language used was kind that went with this sort of stuff, rough stuff, vulgar and nasty."

The defendants Mrs. Pullen and Hollingsworth adopted the answer as part of their affidavit, and further stated: "That before this petition was filed and for several weeks there had been no whisky, beer, or wine at said place, and that they have not furnished or possessed any whisky, beer, or wine, and that they have no whisky, beer, or wine in their possession at this time. That they do not expect to possess, keep, or furnish in any way to any one any whisky, beer, or wine. . . That no whisky is sold at said place or around said place." Several witnesses testified for the defendants, to the effect that the place of the defendants was properly conducted, and that intoxicating beverages were not sold by them.

The judge entered the following order:

"The parties hereto having offered evidence on said issue, and it appearing from sworn testimony offered [in support of] said petition that the allegations thereof are true, it is therefore considered, ordered, adjudged, and decreed by the court that the prayers of said petition be and the same are hereby granted, and the place of business as described in said petition, with the exception of bedroom and kitchen, be abated as a nuisance and [the sheriff or his lawful deputy] is hereby ordered to securely lock and fasten said building . . with the exception of bedrooms and kitchen, . . so as to prevent its use or occupancy by any one until further order of this court; and it is further ordered and adjudged . . that Mrs. Christine Pullen, Charlie Hollingsworth, and William Fleming be and they are permanently enjoined from operating any business of any nature or kind in the premises described in said petition, or from permitting any one else from so doing, for any purpose whatsoever." The defendants excepted. It appears that the sale of intoxicating liquors is prohibited in Heard County. Under the Code the prohibited liquors would include "(1) Alcohol, alcoholic liquors, spirituous liquors, and all mixed liquors any part of which is spirituous, foreign or domestic spirits, or rectified or distilled spirits; absinthe, whisky, brandy, rum, and gin." § 58-101. "The following are hereby declared to be common nuisances and may be abated as such upon complaint of the attorney-general or the solicitor-general of the circuit, or any citizen or citizens of the county: (1) Any rooms or structures used for the unlawful manufacture, sale, keeping for sale, or other unlawful disposition of the liquors and beverages mentioned in section 58-101, or any of them; (2) all houses, shops, or places where the said liquors and beverages, or any of them are sold, bartered, kept for sale, or otherwise disposed of, to be drunk on or near the premises, or where such liquors or beverages, or any of them, are kept for the purpose of sale or other unlawful disposition thereof; (3) all places of resort where persons are permitted to resort for the purpose of drinking such liquors or beverages, or any of them, mentioned in section 58-101. on or about the premises; (4) any public eating place where the said liquors and beverages, or any of them, mentioned in section 58-101 are sold or served for beverage purposes." § 58-109. These provisions were codified from section 9 of the act approved November 17, 1915. Ga. L. Ex. Sess. 1915, p. 83. "Any place commonly known as a ``blind tiger,' where spirituous, malt, or intoxicating liquors are sold in violation of law, shall be deemed a nuisance, and the same may be abated or enjoined as such, as now provided by law, on the application of any citizen or citizens of the county where the same may be located." Code § 58-110. This section was codified from the act of 1899, known as the "blind tiger law." Ga. L. 1899, p. 73. See Cannon v.Merry, 116 Ga. 291 (42 S.E. 274).

Under the foregoing statutes and the evidence as to illegal sales and use of intoxicating beverages at the place of business conducted by the defendants, the judge was authorized to grant some kind of interlocutory relief on the petition of the solicitor-general.Dispensary Commissioners of Lee County v. Hooper, 128 Ga. 99 (56 S.E. 997); Bracewell v. Cook, 192 Ga. 678 (3) (16 S.E.2d 432). But the defendants, conceding this to be true, attack the order on the grounds: (1) That the finding of the judge that "the allegations" of the petition are true "was erroneous, for the reason that there was no evidence to support all of the allegations in the petition, in that there was no evidence of any indecent acting or immoral conduct carried on." (2) That the court erred in closing the dining-room and dance-hall, because no violation of the law was shown to have been carried on in these parts of the building. (3) That it was error to enjoin the defendants from operating any business whatsoever on said premises, and only illegal acts should have been enjoined. (4) That said order was erroneous in that it "granted a permanent restraining order, without a trial before a jury."

As to the first contention, that there was no evidence of indecent or immoral conduct, the finding of the judge that all of the allegations of the petition were true necessarily included those relating to the illegal sale and use of intoxicating beverages; and this finding alone authorized the order in so far as it was interlocutory and applied to a place where such illegal practices were carried on. Lokey v. Davis, 194 Ga. 175 (21 S.E.2d 69); Ogletree v. Atkinson, 195 Ga. 32 (2, 4) (22 S.E.2d 783).

As to interlocutory abatement, the decision in Teutonia Club v. Howard, 141 Ga. 79 (2) (80 S.E. 290, Ann. Cas. 1915E, 1062), was rendered before the act of 1915 (Code, § 58-109), which is broader in its remedial provisions than the act of 1899 (§ 58-110), on which that decision was based.

As to the second contention as stated, the judge was authorized to find that the dance-hall, dining-room and bar-room were operated as a unit, and that in such operation, intoxicating liquors were kept and sold in violation of law as alleged in the petition. Accordingly, it was not error to treat them as a unit for the purpose of injunction and abatement. Compare Carpenter v. State, 195 Ga. 434 (24 S.E.2d 404). Moreover, the evidence direct and circumstantial was sufficient to bring the case squarely within the Code, § 58-109.

As to the third contention, the authorities relied on, such asGeorgia Railroad Banking Co. v. Maddox, 116 Ga. 64 (6) (42 S.E. 315), Pig'n Whistle Sandwich Shops Inc. v. Keith,167 Ga. 735 (3) (146 S.E. 455), and Gordy v. Armstrong,190 Ga. 670 (10 S.E.2d 168), apply only to lawful businesses, which in some respects are conducted in an improper manner, and would not apply in favor of a place that is shown to be a nuisance per se and thus subject to abatement as such under specific statute.

As to the fourth contention, it is true that the judge was not authorized, upon such interlocutory hearing, to enjoin the defendants "permanently," as his order purported to do. Direction is given that the last paragraph of the order as quoted above be stricken, so that the defendants will be enjoined only until final trial, or further order of the court. Triumph Ice MachineCo. v. Sandersville Ice Co., 147 Ga. 468 (2) (94 S.E. 570);Kniepkamp v. Richards, 192 Ga. 509 (2) (16 S.E.2d 24).

Judgment affirmed, with direction. All the Justices concur,except Wyatt, J., disqualified.