State v. Sportsmen's Country Club

¹ Reported in 7 N.W.2d 495. Action for the abatement of defendant Sportsmen's Country Club as a public nuisance and to enjoin and restrain the other defendants from conducting and operating the club. The club was organized as a nonprofit corporation for social and recreational purposes. It leased premises from one of the defendants, who received as rental the membership fees of the club. It was not open to the public but only to members and their friends. Membership was allegedly obtained by making application, which was approved by the officers, and by the payment of a fee of one dollar. However, one Brosvik, a stranger and an investigator, made such application to the manager, paid the fee, was immediately admitted as a member, and forthwith was able to purchase intoxicating liquor. Membership consisted of about 800 business people from the neighboring towns. The trial court found that the club had been operated in a quiet and orderly manner. Gambling devices had been maintained in the club and gambling was permitted. It was a policy of the club to sell beer and liquor to members when the members did not have their own, though the club did not have a state license to sell beer or liquor. The sheriff raided the club on four different occasions during 1939-1940 and on each raid found large quantities of beer and liquor. Subsequently convictions were had against the club and its managers or employes, all of the offenses having been committed upon the premises, occupied by the club. On December 11, 1940, the club pleaded guilty to two charges of maintaining gambling devices in the club building. On September 23, 1940, the club was convicted of having intoxicating liquor in possession for sale without a license. On November 8, 1939, Anthony, the then manager, pleaded guilty to illegal sale of liquor at the club premises. On March 25, 1939, Robert Burnip, an employe, pleaded guilty to two charges of the sale of liquor on the club premises. On December 11, 1940, Robert Burnip further pleaded guilty to an illegal sale of liquor at the same place. In all, there were two gambling charges and five liquor charges made against the club and its employes. The trial court permanently enjoined defendants from illegally selling or serving beer or liquor and from maintaining gambling devices in the club, abated the club as a public nuisance, and permanently restrained defendants from conducting and operating the club. This appeal is from a denial of a motion for amended findings or a new trial.

In the first place, we agree with the trial court that any attempt to call this place a private club is "a mere subterfuge," and for the purposes of this decision we hold it to be a public tavern.

The fundamental question to be decided here is whether the powers of an equity court will lie to enjoin the illegal sale of intoxicating liquor and the maintenance of gambling devices. The test of what constitutes a "public nuisance" gives us little assistance, since the term itself covers almost all wrongful acts. The statement that equity will enjoin public nuisances has meaning only when limited by the well-defined class of cases to which it applies.

Very early in their history equity courts used their power to preserve peace and prevent crime. But this general criminal jurisdiction slowly waned as government became stronger. Nevertheless, equity did continue to interfere with criminal acts in certain classes of cases. 16 Harv. L.Rev. 389. These included cases involving concerted action to injure property, the prevention of violations of public decency, and protection of the public from combinations in restraint of trade.

Cases involving the prevention of the violation of public decency rested on the general rule that equity had the power to abate public nuisances, but this rule was limited to those nuisances which affected public or private property rights. 9 Harv. L.Rev. 526. In later cases jurisdiction of the equity courts has been extended to include public nuisances caused by indecent and disorderly conduct. People ex rel. Dyer v. Clark,268 Ill. 156, 108 N.E. 994, Ann. Cas. 1916D, 785; Oklahoma ex rel. City of Oklahoma v. Robertson, 19 Okla. 149, 157,92 P. 144. Also, many state legislatures, through their common-law powers to define public nuisances, have enacted statutes conferring upon courts of equity the power to abate public nuisance although the acts complained of also constituted a crime and no property rights were invaded. Examples of these statutes are those enjoining and abating liquor law violations. See cases construing such statutes in 75 A.L.R. 1298. Where no statute is involved there seems to be a split among the authorities as to whether equity will expand its traditional sphere to include these new classes of cases. Many courts hold to the old rule. State ex re. Attorney General v. Schweickardt,109 Mo. 496, 19 S.W. 47 (injunction against sale of intoxicating liquor refused); People ex rel. L'Abbe v. District Court, 26 Colo. 386, 58 P. 604, 46 L.R.A. 850 (injunction against gambling refused); State v. Patterson,14 Tex. Civ. App. 465, 37 S.W. 478 (same); State ex rel. Circuit Attorney v. Uhrig, 14 Mo. App. 413 (same). Cases granting equitable relief in circumstances analogous to the case before us are the following: Town of Linden v. Fischer, 154 Minn. 354,191 N.W. 901 (public dance hall enjoined); State ex rel. Smith v. McMahon, 128 Kan. 772, 280 P. 906, 66 A.L.R. 1072 (injunction granted against systematic exaction of usury); Stead v. Fortner, 171 Ill. App. 161; Id. 255 Ill. 468, 99 N.E. 680 (illegal sale of liquor enjoined); Lofton v. Collins,117 Ga. 434, 43 S.E. 708, 61 L.R.A. 150 (same); State ex rel. Hopkins v. Howat, 109 Kan. 376, 198 P. 686, 25 A.L.R. 1210 (injunction granted against coal miners' strike); Commonwealth v. McGovern,116 Ky. 212, 236, 75 S.W. 261, 66 L.R.A. 280 (prize fight enjoined); State ex rel. Crow v. Canty, 207 Mo. 439,105 S.W. 1078, 15 L.R.A.(N.S.) 747, 123 A.S.R. 393 (bullfight enjoined); State ex rel. Zipse v. Klein (Iowa) 174 N.W. 481 (illegal sale of liquor enjoined); Allshouse v. Carragher,171 Iowa 307, 151 N.W. 443 (same). The general rule behind these latter cases is stated in 5 Pomeroy, Eq. Jur. (2 ed.) p. 4296, § 1893:

"As a public nuisance concerns the public generally, it is the duty of the government to take measures to abate or enjoin it. Hence it follows that the government can obtain an injunction to restrain a public nuisance, without showing any property right in itself. The duty of protecting the property rights of all of its citizens is sufficient to warrant issuing the injunction. Therefore, wherever a public nuisance is shown, equity must enjoin it at the suit of the government. 'Every place where a public statute is openly, publicly, repeatedly, continuously, persistently and intentionally violated, is a public nuisance.' This definition does not include all public nuisances by any means; but it includes a class particularly covered by the principle under discussion. Injunctions obtained by the state to restrain the criminal sale of intoxicating liquors are among the most numerous of this class."

The illegal acts of the defendants here are made crimes under the laws of this state, Minn. St. 1941, § 340.05 (Mason St. 1940 Supp. § 3200-9), making it a misdemeanor to sell liquor without a license; Id. § 340.14 (§ 3200-28), forbidding gambling devices on the premises where intoxicating liquor is sold. Although equity will not enjoin the commission of a crime as such, nevertheless, if the facts disclose the need for equitable interference, equity will impose its authority notwithstanding the conduct amounts to a crime. 39 Am. Jur., p. 410, § 147. "The criminality of the act will neither give nor oust jurisdiction in chancery." State v. Vaughan, 81 Ark. 117,126, 98 S.W. 685, 690, 7 L.R.A.(N.S.) 899, 118 A.S.R. 29,11 Ann. Cas. 277.

There can be no question that courts with equity jurisdiction have authority to issue the writ of injunction against private persons commanding them to abate existing public nuisances and preventing the renewal of them. The important question in this case is whether a tavern set up and maintained in violation of the liquor and gambling statutes but in all other respects an orderly house in the sense of the law, falls within the general proposition or outside it. It will not fall inside the general rule unless it appears from all the facts and circumstances of the case that other remedies provided by the law were not adequate, prompt, and efficient to shut up the place in question and to keep it closed so long as the above named statutes remain in force.

The legal remedy of indictment under the criminal statutes has clearly proven ineffective, as witness the list of convictions against the club, its managers, and employes. The fact that the law is not enforced is no ground for equity to restrain the commission of a crime, 2 Story, Eq. Jur. (14 ed.) § 1217; but here no such laxity exists. See State ex rel. Vance v. Crawford, 28 Kan. 726, 737, 42 Am. R. 182, where a liquor statute providing for criminal punishment only was not considered an adequate remedy at law. It is doubtful whether a criminal action for violation of the public nuisance statute, Minn. St. 1941, § 616.01 (Mason St. 1927, § 10241), could be sustained here because of the lack of any evidence of disorderly conduct. At common law gaming houses and brothels were common nuisances, not because of the noise and disorder but on account of the evil tendency of the business. State v. Vaughan, 81 Ark. 117, 119, 120, 98 S.W. 685, 687, 688,7 L.R.A.(N.S.) 899, 118 A.S.R. 29, 11 Ann. Cas. 277. It was otherwise as to the sale of intoxicating liquor. Though illegal, disorderly conduct had to be shown to sustain an indictment for a common nuisance. Sopher v. State,169 Ind. 177, 81 N.E. 913, 14 L.R.A.(N.S.) 172, 14 Ann. Cas. 27. Therefore, the legal remedy of abatement after judgment under the common law would be unavailable, because a criminal nuisance could not be proved under the above statute. See Ehrlick v. Commonwealth, 125 Ky. 742, 102 S.W. 289, 31 Ky. Law Rep. 401, 10 L.R.A.(N.S.) 995, 128 A.S.R. 269, where this remedy was used. Finally the statute providing the statutory remedy for enjoining and abating a liquor nuisance, Mason St. 1927, § 3209, has been repealed by L. 1933, c. 130.

The granting of an injunction here will not only dispose of an existing nuisance but will prevent it in the future without the need of repeated prosecutions. In Mugler v. Kansas,123 U.S. 623, 8 S. Ct. 273, 303, 31 L. ed. 205, the court said:

"They [courts of equity] can not only prevent nuisances that are threatened, and before irreparable mischief ensues, but arrest or abate those in progress, and, by perpetual injunction, protect the public against them in the future; whereas courts of law can only reach existing nuisances, leaving future acts to be the subject of new prosecutions or proceedings. This is a salutary jurisdiction, especially where a nuisance affects the health, morals, or safety of the community. Though not frequently exercised, the power undoubtedly exists in courts of equity thus to protect the public against injury."

We therefore conclude that the remedy at law is not "plain and adequate, or in other words, as practical and as efficient to the ends of justice and its prompt administration, as the remedy in equity." Boyce's Executors v. Grundy, 28 U.S. (Pet.) 210, 215, 7 L. ed. 655.

Consequently, from the above authorities and reasoning, we hold that where there have been continuous and persistent violations of the liquor and gambling statutes, and repeated convictions under the criminal laws have failed to abate them, the equitable power of injunctive relief is properly granted.

Affirmed.