South Bend news-times. (South Bend, Ind.) 1913-1938, 1918-12-02
FUNK DENIES
INJUNCTION TO
SALOON OWNERS
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suits in regard to the enforcement
of the prohibition law.
We are very much pleased at
the decision OF Judge Funk" declar-
ed Mayor Carson following the end
ing of the injunction suit. I'VE can
now go ahead with the enforcement
Of the liquor Jaw" he said.
judge Announces Decision.
I'm announcing his decision Judge
Funk said:
We viii first consider the legal
question that was raised by the de-
murrer TO the complaint.
The gist of the complaint is that
the plaintiff before April 2, 1918,
was engaged in the saloon business
in this city. and he allowed his fiX-
lures to remain; and since April ?.
1918, had been conducting a cigar
business, and selling soft drinks, and
using the same fixtures; and the al
legation that since April ?, 1913, he
has not sold any intoxicating liquor;
and that the city ordered him TO re-
move the fixtures: and they threat
ened that if he did not remove
them. they would rem ov e
them by force, and destroy
them: That is. the fixtures and the
paraphernalia used in connection
with that business
Section % of this prohibition law
provides that if any person has rea-
/ son TO believe that liquor is sold con-
: trary 10 law, he cen make an af1-
/ davit before any court, and a search
warrant will issue; and under that
/ search warrant, the police officer
I has a right to search the premises;
and If he finds any liquor in and
about the premises he is TO seize
I the liquor. and the vessels In which
| il is contained. and also the fixtures
and all the implements used in con-
| nection with the sale, and all Of the
books and papers relating 20 the
sale Of liquor
Action is Inconsistent.
Now. if this injunction were
/ granted to restrain the police Of
1 fcers and all Of them from removing
/ fixtures and paraphernalia from the
saloon then. if a search warrant is
sued, the police officer would be pre-
vented from performing his duty
under the law. and as given by sec
ton %.
Now it appears TO me that IS
| inconsistent. And the further statute,
section 81, provides that if any mu-
nicipal police officer refused 10 do
any Of the duties devolving upon
him. on account of the sale Of In
toxicating liquor, that he can be
cited to appear before the circuit
court. and the circuit court shall
remove him from his office.
Now II seems to me. il this in
( junction were granted, an anomal-
Gus condition might arise. And 10 il
lustrate: Suppose this court today
should grant <his restraining order
this temporary iniunction-and
enjoin every police officer from re
moving the fixtures and parapherna-
liza from this saloon: Suppose tomor'
row some person should go into the
superior court. and make an afh
davit for a search warrant: 1t would
be given TO the officer, and the Of
hcer would go TO execute the search
warrant. and find liquor on the
premises. Then il is his duty. the
statute says-hc shall, If he finds
liquor. take away the liquor. and the
vessels and all the fixtures and i'm
plements connected with the sale ia
the business: and if he would be
prevented from doing that, then he
would be brought into the circuit
court. and an action brought to re
move him from his office. for failing
10 do his duty which ne could not
perform on account Of the very fac
that the same court had granted an
injunction against him.
No Injunctive Relief.
ct seems to me then that in Z
case Of this kind that there is no
injunctive relief; that the remedy
is q remedy at law in damages.
And we are not without authority;
because that same proposition that
arises in this case. in my opinion. is
decided by the New York cases that
were cited IN this court on the day
Of the argument. Now so much for
the injunctive relief on the COM
plant.
1.-The other day during the argu-
ment. for the sake of presenting the
evidence. the demurrer was over
ruled TO the complaint so that the
evidence could be introduced: so
that the first order this morning
will be setting aside the overruling
of that demurrer. and the court viii
sustain the demurrer to the COM
plant
Other Questions Asked.
"Now I'm view Of what the court
has already stated. If is probably
unnecessary to go into any other
question. And vet there were othe-
QUESTIONS argued. ard the city ar
gued that under the common law.
IL. t., 4hfr nrnhihitfnr r4nt,-+n