Schmidt v. Cobbo'malley

Proceeding by petition in equity, by E. M. Cobb, appellee, against Alfred Schmidt and Titus Schmidt, trading as Schmidt Bros., appellants. The petition was filed in the district court of Dubuque county, Iowa, September 4, 1884, and had for its object the abatement of an alleged nuisance maintained by the appellees in the form of a saloon in the city of Dubuque. The suit was instituted under the following sections of the Amended Code of Iowa:

'Sec. 1526. Any citizen of the state, except hotel-keepers, keepers of saloons, eating-houses, grocery-keepers, and confectioners, is hereby permitted, within the county of his residence, to manufacture or buy and sell intoxicating liquors for mechanical, medicinal, culinary, and sacramental purposes only: provided, he shall first obtain permission from the board of supervisors of the county in which such business is conducted,' etc.

'Sec. 1540. If any person not holding such permit, [viz., to buy and sell intoxicating liquors for the purposes set out in section 1526,] by himself, his clerk, servant, or agent, shall directly or indirectly, or by any device, sell, or in consideration of the purchase of any other property give, to any person any intoxicating liquors, he shall for the first offense be deemed guility of misdemeanor,' etc.

'Sec. 1542. No person shall own or keep, or be in any way concerned, engaged, or employed in owning ork eeping, any intoxicating liquors, with intent to sell the same, within this state, or to permit the same to be sold therein in violation of the provisions hereof; and any person who shall so own or keep, or be concerned, engaged, or employed in owning or keeping, such liquors with any such intent, shall be deemed for the first offense guilty of a misdemeanor.' (The offender is then subjected to cumulative penalties, the maximum being $500 fine, or six months in the county jail, or both.)

'Sec. 1543. In cases of violation of the provisions of either of the three preceding sections, or of section fifteen hundred and twenty-five of this chapter, the building or erection of whatever kind, or the ground itself, in or upon which such unlawful manufacture or sale, or keeping with intent to sell, use, or give away, of any intoxicating liquor, is carried on or continued or exists, and the furniture, fixtures, vessels, and contents, is hereby declared a nuisance, and shall be abated as hereinafter provided; and whoever shall erect or establish, or continue to use, any building, erection, or place, for any of the purposes prohibited in said sections, shall be deemed guilty of a nuisance, and may be prosecuted accordingly, and upon conviction shall pay a fine of not exceeding $1,000, and costs of prosecution, and stand committed until the fine and costs are paid; and the provisions of chapter 47, tit. 25, of this Code shall not be applicable to persons committed under this section. Any citizen of the county where such nuisance exists, or is kept or maintained, may maintain an action in equity to abate and perpetually enjoin the same; and any person violating the terms of any injunction granted in such proceedings shall be punished, as for contempt, by a fine of not less than five hundred nor more than one thousand dollars, or by imprisonment in the county jail not more than six months, or by both such fine and imprisonment, in the discretion of the court.'

The 'petition' as amended is as follows:

'The plaintiff, agent of the Citizens' Law and Order League of Dubuque, complaining, shows to the court and avers as follows:

'Paragraph 1. That he is a citizen of Dubuque county, state of Iowa.

'Par. 2. That defendants, Schmidt Brothers, a firm composed of Albert Schmidt and Titus Schmidt, at the city and county of Dubuque, at the Iowa brewery, so called, situated upon Couler avenue, in said city, and upon lot number 5, in Brewery addition, as platted and recorded with Dubuque deeds, have established a saloon for the keeping and sale of intoxicating liquors, towit, whisky, gin, wine, and beer, at retail, as a beverage, in violation of law; and are now keeping, and employed and engaged in keeping, said intoxicating liquors in said saloon, with the intent to sell the same, and with the intent to permit the same to be sold therein contrary to the provisions of section 1542 of the Code of Iowa, as amended and substituted by an act of the general assembly of the state of Iowa, approved April 3, 1884.

'Par. 3. That in the month of August, 1884, the said defendants, in the saloon aforesaid, did, by themselves, their clerk, agent, and servant, sell to divers and sundry persons intoxicating liquors, to-wit, whisky, wine, gin, and beer, contrary to the provisions of section 1540 of the Code of Iowa as amended and substituted by an act of the general assembly of the state of Iowa, approved April 3, 1884, at retail and as a beverage.

'Par. 4. That said defendants, at the saloon aforesaid, have heretofore, to-wit, since the fifteenth day of July, 1884, by themselves, their clerk, agent, and servant, sold, and continue from day to day to sell, intoxicating liquors, to-wit, whisky, wine, gin, and beer, as a beverage, contrary to law, at retail and as a beverage.

'Par. 5. That said defendants are the owners of the premises aforesaid, and are the owners of certain whisky, gin, wine, and beer, kept and contained in certain kegs, bottles, and other vessels for illg al sale upon said premises as aforesaid, and are the owners of certain furniture and fixtures on the said premises used in said business.

'Par. 6. Whereby and by reason of the premises, and in manner and form as aforesaid, the said defendants, Schmidt Bros., at the saloon and place aforesaid, have established, and are now keeping and maintaining, a nuisance, to the great injury of the plaintiff, and other good citizens of said county, and to the detriment of the public peace and safety, and, unless restrained by the order and decree of this court, will continue to keep and maintain said nuisance at said place in violation of law, and to the public injury. Wherefore plaintiff prays that said saloon and place be adjudged and decreed to be a nuisance, and that the same be abated, and said defendants be enjoined by preliminary injunction from further keeping or maintaining said saloon and place for the illegal sale of intoxicating liquors, and also from keeping the said liquors with intent to sell the same therein contrary to law; and also from selling the same in said saloon contrary to law, either by themselves, or their clerk, agent, or servant; and that upon final hearing said injunction be made perpetual; and that plaintiff have such other and further relief as in equity he is entitled to; and also that he have judgment for costs.'

August 29, 1885, the defendants filed a petition for removal. The petition, as amended, is as follows:

'(1) Your petitioners, the above-named defendants, show to the court that they are, and five years last past have been, citizens of the United States, and the state of Iowa, residing in the state of Iowa.

'(2) That long prior to the fourth day of July, A. D. 1884, and ever since that time, they have been engaged in the business of brewing beer, and selling the same at both wholesale and retail, and they have kept upon the premises mentioned in the petition, being the same premises upon which said beer is manufactured, which said premises have all said time belonged to and are now owned by defendants, and contain large breweries, erected for the purpose of manufacturing beer, and for no other purpose, and are suited for no other purpose, a room and bar where said beer so manufactured is kept for sale, at retail, which is the keeping of a saloon charged in the petition herein, and not other or different, and defendants claim that such business is legal under the laws of Iowa.

'(3) That they have invested in said business of brewing and selling beer a large sum of money, and there is involved in this case, in addition to the personal rights of defendants, the sum of ten thousand dollars, exclusive of costs, and more than that amount of property belonging to defendants will be rendered entirely worthless if plaintiff succeeds against them in the present action.

'4th. That there has been no trial or final hearing of this cause.

'5th. That the twentieth General Assembly of the State of Iowa passed an enactment which petitioner prays may be considered in this case, which by its terms went into effect on the 4th day of July, A.D. 1884, being cc. 8 and 143, laws of the 20th General Assembly of the State of Iowa, amending and repealing sections of title XI, c. 6, Code of Iowa, relating to the sale of intoxicating liquors, which renders highly penal the prosecution of said saloon business and which, if enforced, as threatened, as hereinafter stated, will destroy the property of defendant so used and deprive him unlawfully of said occupation.

'6th. That under the provisions of said law defendant can be deprived of his property and punished with heavy penalties for being engaged in said saloon business without having the opportunity and right of a jury trial upon the questions involved, and without any trial whatever, except as pointed out by said act.

'7th. That the Supreme Court of the State of Iowa, at March Term, 1885, in the case of Littleton v. Fritz, has declared said law in full force, and the persons in the situation of defendant can be prosecuted under it and be deprived of property and liberty without any right to a jury trial.

'8th. That under said enactment and said decision the said plaintiff has begun and is prosecuting this suit.

'9th. That by said proceedings under said enactment and said decision said defendant is deprived of the rights guaranteed him under the acts of Congress usually known as the "Civil Rights" law, and under the Constitution of the United States and amendments thereto especially is he denied, and he cannot enforce in the State judicial tribunals of Iowa, the rights secured to him under said "Civil Rights" law and said Constitution of the United States, and especially the 14th Amendment thereto, and said enactment of said 20th General Assembly and said decision are in violation of said "Civil Rights" laws.

"Therefore defendant offers, as provided by law, to file copies of all pleadings and proceedings herein in the Circuit Court of the United States for the Northern District of Iowa on the first day of its next term, and prays that this suit may be removed into said court, as provided by § 641 of the Revised Statutes of the United States."

On the 21st September, 1885, this petition was granted, and the cause was ordered to be removed. By the endorsement of the deputy clerk of the Circuit Court of the United States the papers appear to have been filed in that court on the 17th November, 1885.

On the 23d December, 1885, an amended petition, entitled as of September Term, 1884, District Court of Dubuque County, Iowa, was filed in the Circuit Court of the United States. This differed from the previous petition in the following respects. Paragraphs 1 and 5 were identical in both. In paragraph 2 defendants were styled "Schmedt" instead of "Schmidt," and "Alfred" instead of "Albert"; the locus was averred as "a saloon" instead of "a saloon and a place"; and the words "at retail as a beverage" were omitted. In paragraphs 3, 4, and 6, the same changes were made in the averment as to the locus, and in the words "at retail and as a beverage."

On the 17th November, 1885, plaintiff moved, in the Circuit Court, to remand the cause to the District Court of Iowa for the following reasons: "(1) Because the petition for removal fails to state facts showing that defendants were entitled to remove said action from the State court under the provisions of § 641 of the Revised Statutes of the United States. (2) Because said petition fails to state facts sufficient to give court jurisdiction of said action. (3) Because said petition fails to state facts showing that defendants are denied or cannot enforce in the judicial tribunals of the State of Iowa any rights secured to them by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, within the provisions and purview of § 641 of the Revised Statutes of the United States. (4) Because said action was improperly removed from said State court, as it involves no dispute or controversy within the jurisdiction of this court."

On the 23d December, 1885, defendants filed in the Circuit Court of the United States the following amended petition for removal:

'1st. Your petitioners, the above named defendants, show to the court that they are, and for five years last past have been, citizens of the United States and the State of Iowa, residing in the State of Iowa.

'2nd. That long prior to the 4th day of July, A.D. 1884, and ever since that time they have been engaged in the business of brewing beer and selling the same at both wholesale and retail, and they have kept upon the premises mentioned in the petition, being the same premises upon which said beer is manufactured, which said premises have all said time belonged to and are now owned by defendants, and contain large breweries, erected for the purpose of manufacturing beer and for no other purpose, and are suited for no other purpose, a room and bar where said beer so manufactured is kept for sale at retail, which is the keeping of a saloon charged in the petition herein and not other or different, and defendants claim that such business is legal under the laws of Iowa.

'3d. That they have invested in said business of brewing and selling beer a large sum of money, and there is involved in this case, in addition to the personal rights of defendants, the sum of ten thousand dollars, exclusive of costs, and more than that amount of property belonging to defendants will be rendered entirely worthless if plaintiff succeeds against them in the present action.

'4th. That there has been no trial or final hearing of this case.

'(5) That plaintiff has filed his motion herein for a temporary injunction to restrain defendants from prosecuting their said business, which plaintiff is endeavoring to press to a hearing in the state court, which, if allowed, will be of irreparable injury to defendants.

'(6) That the twentieth general assembly of the state of Iowa passed an enactment which defendants ask may be considered in this case, which, by its terms, went into effect on the fourth day of July, A. D. 1884, being chapters 8 and 143, Laws of the Twentieth General Assembly of the state of Iowa, amending sections of title 11, chapter 6, of the Code of Iowa, relating to the sale of intoxicating liquors, which defendants claim should be declared of no effect, which renders highly penal the prosecution of said business of defendants, and which if enforced, as threatened in this case, as hereinafter stated, will destroy the property of defendants so used and deprive them unlawfully of their said occupation.

'(7) That under the provisions of said law defendants can be deprived of their property, and punished withh eavy penalties for being engaged in said business, without having the opportunity and right of a trial by jury upon the questions of fact involved, and without any trial whatever, except as pointed out by said act.

'(8) That the supreme court of the state of Iowa in the case of Littleton v. Fritz, decided at the March term, A. D. 1885, of said court, to which reference is here prayed, has declared said law in full force, and that persons in the situation of defendants can be prosecuted under it, and be deprived of property and liberty without any right of a jury trial.

'(9) That under said enactments and said decision the said plaintiff has begun and is prosecuting this suit without any right to or interest therein, except what said enactment and said decision confer.

'(10) That under said law and said decision persons who are charged with being engaged in the saloon business are guilty of maintaining a nuisance; thereby are, and their property is, discriminated against in being deprived of the same mode of trial that persons charged with manufacturing other nuisances in violation of law are allowed; and other and different and more onerous penalties and punishment are imposed against them, and against the property, than are denounced against persons charged with maintaining other kinds of nuisances.

'(11) That under said law, and especially section 1526, as amended, of the Code of Iowa, petitioners are denied the right to manufacture or sell beer or other manufactured liquors for any purpose whatsoever on account of their occupation, while persons engaged in other occupations are allowed to engage in such sales.

'(12) That said law and said decision are in derogation of the rights of defendants as guarantied by the constitution of the United States, and especially as guarantied by the fourteenth amendment thereof, and defendants are thereby denied the equal protection of the laws of said state of Iowa, and are deprived, and liable to be deprived, of liberty and property without due process of law.

'(13) That by said law and said decision they are denied in these proceedings in the state court the equal protection of the laws of Iowa, as guarantied by said constitution of the United States, and said amendment, and by the laws of congress, as passed for their protection.

'(14) That said laws, so passed by the said twentieth general assembly of S. P. Adams, Jed Lake, and M. H. Beach, for the motion.

H. B. Fouke, contra.

WAITE, C. J., announced that the decree below was affirmed by a divided court.