United States v. McCrory, 26 F.2d 189 (2d Cir. 1928)

*190 Samuel Weinreb, of New York City, for appellant.

Charles H. Tuttle, U.S. Atty., of New York City (Arthur E. Schwartz, Asst. U.S. Atty., of New York City, of counsel), for the United States.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The usual bill in equity was filed in this cause to restrain violations of the National Prohibition Act (27 USCA) and setting forth two causes of action the first, to have the premises in suit declared a common nuisance and put under lock and seal; the second, to enjoin the defendants McCrory and Reynolds from taking orders and selling intoxicating liquors in violation of section 23 of title 2 of said act (27 USCA §§ 35-37).

The bill of complaint alleged that McCrory and Reynolds were proprietors of the place of business where the violations occurred. Reynolds was the only defendant who was served with process, or who appeared.

There was no sufficient proof that Reynolds was an owner or tenant of the premises. The trial court did not so find, but said: "Mr. Reynolds * * * is just a drifter. I imagine he would do anything they told him to do." It is true that the police officer, Hocke, testified that, when he arrested one Murphy on the premises and was taking him out, Reynolds came in and said: "This is my place." But the police officer, in giving his report of the arrest to the United States attorney, wrote: "Building ownership, name and address unknown." He also testified in substance that he said nothing to the United States attorney's office about Reynolds' alleged statement that the premises were his until he saw Reynolds in court at the trial. The great weight of testimony was that the defendant Frank McCrory was the proprietor of the premises.

In view of the entire record, we cannot take the unsupported statement of the police officer that Reynolds said the place was his, contradicted as it was by the officer's own entry and by a large amount of oral testimony, as sufficient proof that Reynolds was the proprietor, or one of the proprietors, of the premises.

If, as we find, Reynolds was not shown to have had any interest in the premises, the District Court acquired no jurisdiction to declare the premises a nuisance or to order them padlocked. There is no statutory warrant for closing the premises, unless and until the owner, lessee, tenant, or occupant has been served with process in the way prescribed by Supreme Court Equity Rule 13. Prior to a decree that the premises are a nuisance, rendered after such service, there could be no basis for closing them. This is because the Prohibition Act contains no provision for any preliminary seizure of the premises. The basis for padlocking is found solely in the following words of title 2, section 22 (27 USCA § 34):

*191 "And upon judgment of the court ordering such nuisance to be abated, the court may order that the room, house, building, * * * shall not be occupied or used for one year thereafter."

It seems plain from the foregoing that such a suit as the present one must be begun by service of a subpœna on an owner, lessee, tenant, or occupant, and that the closure of the premises is by way of special final relief, which may be granted in aid of a decree that the nuisance shall be abated. United States v. Waverly Club (D. C.) 22 F.(2d) 422; United States v. Schwartz (D.C.) 1 F.(2d) 718; United States v. Gaffney (C. C. A.) 10 F.(2d) 694. See, also, section 22 of title 2 of the National Prohibition Act. The suit is therefore originally in personam, and personal service or appearance is the basis of jurisdiction.

But it is said that, because Reynolds disclaims all interest in the premises and alone appeals, the decree closing them should stand, and Braunstein v. United States (C. C. A.) 24 F.(2d) 174, is cited to support the contention. But in that case the landlord of Braunstein was made a party, answered, went to trial, and had a decree against him, from which he did not appeal. The bill had alleged that Braunstein operated the business, but the evidence as to him was held insufficient. So the decree was reversed as to Braunstein "by excluding him from its operation," but allowed to stand as to his landlord because the latter had not appealed.

Here the jurisdiction under which the decree closing the premises was granted rested solely on the allegation that Reynolds was a proprietor and this fact was not proved. In such circumstances the provisions of the decree declaring the premises a nuisance and ordering them closed must be reversed, because Reynolds was not shown to have been a proprietor, and no owner, lessee, tenant, or occupant was brought before the court.

But the injunction against Reynolds stands in a different position. Section 23 of title 2 of the Prohibition Act provides that any person who shall "take or accept orders for the sale * * * or delivery of liquor in violation of this title is guilty of a nuisance and may be restrained by injunction, temporary and permanent, from doing or continuing to do any of said acts or things."

To be sure Reynolds denied making sales or seeing any sales of liquor made on the premises, but he admitted that he was a waiter there for about a year, and it was abundantly proved that liquor was sold and that a quantity was seized at the place on at least two occasions while he was employed. There was a bar in the rear of the premises, and at the time of the arrest of Murphy on March 5, 1927, "there were about 12 people up against the bar," and rye, Scotch, and champagne were found in the place. It is unreasonable to suppose that a waiter in a "speak-easy" did not "take orders" for liquor. To take such orders was in the natural course of his business. We accordingly hold that the circumstances require a finding that he acted in accordance with reasonable probability, and that a case for a personal injunction against him was made out.

It is to be observed that section 23, supra, does not limit the injunctions provided for to decrees restraining defendants from taking or accepting orders for the sale or delivery of liquor upon the premises, where violations have been proved, but is quite general, so that here there may be an injunction against "any of said acts or things" within the territorial jurisdiction of the court in which the suit is brought in this case within the Southern district of New York.

The part of the decree holding the premises a nuisance and ordering them closed is reversed, for lack of jurisdiction over the owner, lessee, tenant, or occupant, who was never served with process or appeared in the suit, and the portion granting a personal injunction against Reynolds is affirmed.