Hammond v. McDonald

WHITE, J. This is an application by the appellants for a writ of supersedeas to restrain the enforcement of a judgment of the superior court enjoining said appellants from serving intoxicating liquors without meals at a cafe and lunch counter maintained by them, and further ordering the summary abatement of such business should appellants fail to observe the requirements of such injunction.

The proceeding below was instituted by plaintiff (a private citizen) against defendants under the provisions of the Liquor Abatement Act (Stats. 1915, eh. 132, p. 236 [Deering’s Gen. Laws, 1937, Act 3778]) to abate the business operated by defendants by reason of the alleged unlawful sale of intoxicating liquors. Following trial, the court found that defendants were conducting in good faith in a brick building on said described premises a cafe and lunch counter business; that upon said premises defendants were also engaged in the business of serving to the public intoxicating liquors. In connection with the operation of the restaurant business, the court found that the defendants served all kinds of foods; employed two chefs and a corps of waitresses; that a food menu was provided for customers, and that the amount of money invested in the premises by the defendants was between $30,000 and $35,000. The court further found that alcoholic beverages of all types were sold by the drink in the building at tables or over the counter, pursuant to a license or permit from the State Board of Equalization; that such liquors were consumed by the purchasers in said building and were served without meals when meals were not requested. The court further found that the defendants’ monthly expenditures for meats approximated $200, for vegetables $100, and for milk from $60 to $70. The findings also determined that patrons had never been refused service of meals when such service was requested.

The court found that while defendants had complied with all applicable laws of the government of the United States and had obtained the aforesaid license from the State of California, the conduct of their business nevertheless [228]amounted to the maintenance of a saloon and barroom, contrary to law and in direct violation of section 22 of article XX of the Constitution of this state, and contrary to subdivision “m” of section 2 and section 53 of the Alcoholic Beverage Control Act of California (Stats. 1935, p. 1123; Stats. 1937, pp. 1934, 2126 [Deering Gen. Laws, 1937, Act 3796]). Pursuant to such findings, the judgment herein-above referred to was made and entered. Following the entry of judgment and the denial of their motion for a new trial, appellants prosecuted an appeal to this court, and their opening brief is now on file.