Opinion
July 1, 1927.
INTOXICATING LIQUORS: Injunction — Trial Term Permissive. The 1 provision of the statute (Sec. 2021, Code of 1924) for trial of injunction proceedings at the first term after due service is permissive only — not mandatory.
INTOXICATING LIQUORS: Injunction — Voluntary Abatement —
Effect. et seq.)
APPEAL AND ERROR: Review — Nonpresented Constitutional
Questions. et seq.) Headnote 1: Headnote 2: Headnote 3:
Headnote 3: 2 R.C.L. 75.
Appeal from Polk District Court. — JOHN FLETCHER, Judge.
Action in equity, to enjoin the maintenance of a liquor nuisance. Decree as prayed, and the defendant appeals. — Affirmed.
H.P. Daly and Theodore F. Mantz, for appellant.
Vernon R. Seeburger, Carl S. Missildine, County Attorney, and Alexander M. Miller, Assistant County Attorney, for appellee.
I. The petition in this action, which was filed January 22, 1925, charges the appellant with keeping and maintaining a liquor nuisance in a building situated on Lots 5 and 6, Block 11, in the city of Des Moines. It was proven upon the trial 1. INTOXICATING that, on the evening of January 8, 1925, LIQUORS: appellant made a sale of a half pint of alcohol injunction: to one Ben Harvey, who purchased and paid for trial term the same with marked bills furnished by two permissive. police officers. The purchase of this liquor, which was followed immediately by a search of the premises by the two police officers, resulted in the seizure of a small quantity of alcohol and the discovery of one of the marked bills, lying on top of a pile in the cash register.
Notice of the commencement of the action was served January 30, 1925, returnable to the March term of the district court of Polk County. The answer of the defendant was filed May 1, 1925, and the cause tried and judgment entered in June following.
Section 2021 of the Code of 1924 makes actions to enjoin the maintenance of a liquor nuisance triable at the first term of court after due and timely service of notice of the commencement of the action. It is the theory of appellant that this statute is mandatory, and requires the action to be tried at such term. The only purpose and effect of the statute is to create an exception to the general rule in equity cases, which are triable at the second term, and to permit the trial thereof at the first regular term after the service of notice. The statute is permissive, and not mandatory. Jurisdiction to try the case at a later term was not lost upon the adjournment of the term to which the notice was returnable. The court had jurisdiction to try the case at any succeeding term. Highberger v. Thompson, 200 Iowa 580. Tuttle v. Pockert, 147 Iowa 41, does not sustain the position of appellant, and is in harmony with the foregoing construction of the statute.
II. In addition to a general denial of the allegations of the plaintiff's petition, the defendant pleaded the voluntary abatement of the nuisance prior to the commencement of the action and the trial thereof. Appellant testified that 2. INTOXICATING he vacated the premises and moved to Mankato, LIQUORS: Minnesota, on or about May 1st. It is contended injunction: by appellant that, as the nuisance had been voluntary voluntarily and in good faith abated at the time abatement: of the trial, decree should not have been effect. entered. It is true that we have, with some qualifications, recognized the rule that an injunction to abate a nuisance will not lie if it was, in fact and in good faith, abated prior to the commencement of the action. It has always been the rule in this state, however, that, in actions to enjoin, and for the abatement of a liquor nuisance, the court exercises a large discretion. It is the duty of the court to determine whether the nuisance has been voluntarily, permanently, and in good faith abated, and whether an injunction should issue. State ex rel. Seeburger v. Tillotta, 202 Iowa 1217; State v. Seipes, 202 Iowa 1199; State ex rel. Seeburger v. James, 202 Iowa 1137.
The right to an injunction at the suit of the State to restrain the maintenance of a liquor nuisance and to abate the same is statutory, and is one of the methods provided to prevent and punish violations of the prohibitory liquor laws. We are not disposed in this case to interfere with the finding of the trial court.
III. An effort is made by counsel to secure consideration by this court of a constitutional question. It is conceded that the question was not raised in the court below, but is presented for the first time upon appeal. The rule is well 3. APPEAL AND settled in this state that constitutional ERROR: questions will be considered upon appeal only review: when they have been properly raised and nonpresented presented in the lower court. The assessment, as constitu- a part of the judgment, of a mulct tax is tional mandatory, and this court is without authority questions. to modify such judgment. State ex rel. Seeburger v. Riley, 202 Iowa 1213; State ex rel. Seeburger v. Jones, 202 Iowa 640.
The judgment and decree of the trial court is, accordingly, affirmed. — Affirmed.
EVANS, C.J., and FAVILLE, VERMILION, and KINDIG, JJ., concur.