KEY v. FREEMAN

KEY v. FREEMAN
1926 OK 797
249 P. 725
121 Okla. 266
Case Number: 17760
Decided: 10/05/1926
Supreme Court of Oklahoma

KEY et al.
v.
FREEMAN, Dist. Judge, et al.

Syllabus

¶0 Intoxicating Liquors--Jurisdiction to Abate Liquor Nuisance at Commencement of Injunction Action.
Under that part of section 7022, C. O. S. 1921, which provides: "The Attorney General, county attorney, or any officer charged with the enforcement of any of the provisions of this act, of the county where such nuisance exists or is kept or is maintained, may maintain an action in the name of the state to abate and perpetually enjoin the same. The injunction shall be granted at the commencement of the action and no bond shall be required"--where the county attorney brings all action against a certain individual as the owner and operator of an alleged drug store where he charges intoxicating liquors are kept and sold, enjoining the owner of the building therein, summons is issued to the defendants, such action is commenced within the meaning of the statute, and the court has jurisdiction to enter such injunctive order as will be effective to abate the alleged nuisance.

Original Action in Supreme Court for Writ of Prohibition.

Action by Earnest Key and Cleve Sampley against W. F. Freeman, district judge, and others. Writ denied.

Sigler & Jackson, for plaintiff.
F. M. Dudley, for defendants.

BRANSON, V. C. J.

¶1 This is an original action in this court. The plaintiffs are Earnest Key and Cleve Sampley. The defendants are certain officers of Carter county, to wit: W. F. Freeman, district judge; F. M. Dudley, county attorney; E. C. London, sheriff; and Jesse Dunn, chief of police of the city of Ardmore. The plaintiffs seek a writ of prohibition against the district judge and other defendants prohibiting them from enforcing an injunction issued by the district judge in a certain cause then (September 24, 1926) pending in the district court of said county, entitled "State of Oklahoma ex rel. F. M. Dudley, County Attorney of Carter County, Okla. v. Diamond 'A' Drug Company," owned and operated by Earnest Key and D. C. Sampley, which injunction by its terms restrained the defendants pendente lite from the operation of the said drug store located in a building owned by the defendant Sampley, and that the nuisance carried on in said building be immediately abated by the sheriff and chief of police.

¶2 In the instant suit the plaintiffs plead that Earnest Key was running the alleged drug store in question; that he had a considerable amount invested in fixtures located therein; that Sampley was the owner of the building; that that part of the building used as a drug store had been by the sheriff and chief of police padlocked, and that the plaintiffs herein were thereby prohibited from entering the building.

¶3 Plaintiffs assert that the said order was illegal, void, and without authority of law for that the same was issued by the court without any notice, without any hearing, or an opportunity to be heard. Wherefore they pray that a writ of prohibition be directed by this court prohibiting the district judge and the other officers from enforcing the same.

¶4 In the said petition, however, it is further set out that after the service of the injunction and after the officers had locked the drug store, the plaintiffs herein presented to the district court their application asking that said order be vacated and that the court denied the same.

¶5 Responding to the petition filed herein, the county attorney pleads that at the beginning of said action, summons was regularly issued to the defendants therein, who are the plaintiffs in this suit, duly served upon them, a copy of which summons is attached to the response. This response is in no way by the plaintiffs denied.

¶6 So, there was at the time of the granting of the order of injunction a suit pending within the meaning of the Civil Code, and the action was begun. It appears from the pleadings herein that the same was served upon the defendants'--plaintiffs in this action; that on the following day, to wit, the 7th day of September, the defendants appeared in the district court praying that the order be dissolved. It does not appear from this record as to whether or not evidence was taken on the allegations in the petition to abate the alleged nuisance, but certainly the defendants would have a right to present such evidence. The only question here, therefore, is whether or not the court had jurisdiction to take this action at the inception of the suit to abate the nuisance.

¶7 The method of abating nuisances is peculiarly within the province of the Legislature. In the exercise of its general police powers the sovereign can declare what is a nuisance and provide how same may be abated. A liquor joint running under the guise of a drug store was clearly in the mind of the Legislature when it passed the prohibition enforcement statutes of this state. Among other provisions of such statute, is this:

"The Attorney General, county attorney, or any officers charged with the enforcement of any of the provisions of this act, of the county where such nuisance exists or is kept or is maintained, may maintain an action in the name of the state to abate and perpetually enjoin the same. The injunction should be granted at the commencement of the action and no bond shall be required." Sec. 7022, C. O. S. 1921.