Lokey v. Davis , 194 Ga. 175 ( 1942 )

Where the evidence shows a sale of whisky upon the premises, and a previous refusal to sell based on the fact that things were so hot around there and that the agent of the defendant did not know the person seeking to buy the whisky, an interlocutory injunction on the petition of the solicitor-general to abate such premises as a nuisance is authorized by the evidence. Testimony of witnesses on behalf of the defendant, that they had not known of any keeping or selling of liquor and that the business was conducted in an orderly and decent manner, did not require a different verdict.

No. 14177. JUNE 18, 1942. An action was brought by J. Cecil Davis as solicitor-general, in behalf of citizens, seeking to abate as a common nuisance a house and structure commonly called "John's Place" and described as to location in McDuffie County. The petition alleged that whisky and other alcoholic liquors and beverages were kept for sale and were sold to be drunk on or near the premises; and that the premises were operated and were in the possession of John Lamar Lokey either as owner, tenant, or lessee. The prayer was for injunction restraining John Lamar Lokey from further permitting such use of the premises, for the padlocking of said building by the sheriff of the county, and for process. Upon presentation of the petition an ex parte restraining order was granted, and the sheriff of the county was directed to padlock the building described in the petition. The defendant answered, admitting the location and description of the premises, and that he was in possession and was the operator thereof, but denying the other allegations.

At interlocutory hearing L. H. Crawford testified for the plaintiff, that he was an employee of the State department of revenue in November and December, 1941; that as such he made some investigation in McDuffie County, and knew where John Lamar Lokey's place, known as John's Place, in said county was located; that he went to John's Place on November 14, 1941, and asked to buy a pint of liquor from a man named Harrison, who, as Lokey later told him, was an employee of Lokey; that Harrison came out to his car and told him 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; that on December 3, 1941, the witness went back and talked to Harrison about bird-hunting; that Harrison told him a good place to go, whereupon witness said: "All right, it is raining; we are wet. Let's have some liquor," and witness bought a pint of whisky from Harrison for $1.90; that Lokey was not present when Harrison handed him the liquor; that Harrison took the liquor out of a drawer on a back shelf in the house. Lokey introduced affidavits of a number of persons who testified that they lived in the immediate neighborhood of John's Place; that it was a quiet and peaceable place; that they had never known of anything indecent or disorderly to occur on the premises; and that they had seen nothing to indicate that liquor was being kept and sold there.

An interlocutory judgment was entered, continuing the restraining order, and enjoining John Lamar Lokey from continuing any business in the structure or building described in the petition until further order of the court. To this judgment the defendant excepted. Any structure used for the unlawful manufacture, sale, keeping for sale, or other unlawful disposition of liquor, and all shops, houses, or places where liquors are sold or kept for sale are common nuisances and may be abated as such upon complaint of the solicitor-general of the circuit. Code, § 58-109. Any place commonly known as a "blind tiger," where intoxicating liquors are sold in violation of law, is a nuisance and may be abated or enjoined as such. § 58-110. The 1935 act entitled "Alcoholic Beverage Control Act" (Ga. L. 1935, p. 327) never became effective, due to the vote against repeal in the referendum provided for in section 36 thereof. Consequently section 6 of that act, providing for the repeal of title 58 of the Code of 1933, never became law and the chapter of the Code was not repealed thereby.

In Lofton v. Collins, 117 Ga. 434 (3) (43 S.E. 708, 61 L.R.A. 150), it was said: "The illegal sale of intoxicating liquors is a public nuisance, affecting the whole community in which the sale is carried on, and may be abated by process instituted in the name of the State." To the same effect, seeDispensary Commissioners of Lee County v. Hooper, 128 Ga. 99 (3) (56 S.E. 997). It is not the act of possessing liquor or selling liquor that the above statutes 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. State ex 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." The judge did not abuse his discretion in granting the order complained of.

Judgment affirmed. All the Justices concur.