Opinion
12778
December 10, 1929.
In the original jurisdiction, Fall Term, 1929. Permanent injunction granted.
Original proceeding by the State, on the relation of John M. Daniel, as Attorney General, against Dock Anderson and others, to enjoin the maintenance of nuisances.
The petition and temporary restraining order, directed to be reported, were as follows:
PETITIONTo the Honorable Eugene S. Blease, Justice of the Supreme Court of the State of South Carolina:
Your petitioner respectfully shows the Court:
1. That your petitioner is informed and believes the respondents, H.P. Anderson and Dock Anderson, jointly and severally and in connection with the respondents named in the caption hereof, either as parties in interest or as servants, agents, and employees, are engaged in carrying on the business hereinafter alleged and are in possession as lessees or sublessees of certain real estate situate in Horry County, S.C., to the north of the limits of the town of Conway known locally as Stonewall Filling Station, North Conway Filling Station, and Crab Tree Filling Station. Stonewall Filling Station being at the intersection of State Highway No. 38 and the Ditch Bank road, bounded on the southwest by State Highway No. 38; northeast by Ditch Bank road; and south by lands now or heretofore belonging to the late B.G. Collins.
North Conway Filling Station being on the eastern margin of State Highway No. 38 and on lands of Snow Hill Farms Company and bounded on the west by said State Highway and on all other sides by lands of Snow Hill Farms Company.
Crab Tree Filling Station being situate on the western margin of State Highway No. 38, bounded on its eastern side by said State Highway; on its southern side by lot of J.C. Baker; on the other sides by Crab Tree swamp.
2. That the filling stations and property mentioned and described in paragraph 1 of this petition are used by the respondents, their servants, agents, and employees as centers and places from which contraband alcoholic liquors and beverages, to wit, corn whisky, is stored, possessed, sold, delivered, and drunk contrary to and in violation of law, as is fully set out in the affidavits of J.O. Chestnut, sheriff of Horry County, Van Hendricks, a deputy sheriff of Horry County, B.M. Owens and J.R. Gore, rural policemen in Horry County, and L.W. Cooper, S.F. Bourne, J.C. Baker, and J.H. Wilson, landowners and residents in the neighborhood of the three described properties, and J.B. McCutcheon, real estate dealer of Conway, S.C. and a part of the presentment of the grand jury of Horry County at the fall term of the Court of General Sessions for said county, which said affidavits and grand jury presentment are attached hereto and made a part and parcel of this petition.
3. That the said respondents named in the caption, to wit, Dock Anderson, H.P. Anderson, Gaines Anderson, alias Gaines Powell, Johnnie Johnson, Clyde Long, Ed. Thompkins, Daggett Elvis, alias D.C. Elvis, Charlie McCormick, Theo Lee, Henry King, Leon Bryant, Dentie Garren, James Garren, Evan Huggins, B.O. Hill, Sam Anderson, Archie Allen, Harry Collins, Roy Collins, Hill Willis, Sam Anderson, Holland Tyler, alias H.T. Tyler, Stonewall Filling Station, North Conway Filling Station, and Crab Tree Filling Station, in their own right, or as agents, servants, and employees of H.P. Anderson and Dock Anderson, have used, are using, and petitioner verily believes will continue to use unless restrained, as a place of concealment and as places for concealment, storage, sale, and delivery of contraband alcoholic liquors, the stations hereinbefore described and in addition thereto that certain area described as follows:
All and singular the woods and uncultivated lands on the west side of the Atlantic Coast Line Railroad Company's right of way to the northern limits of the town of Conway, and thence the limits of the town of Conway westward to the Dog Bluff public road; thence this road to Crab Tree swamp; thence the area of this swamp to the Walter Short Cut public road; thence the margin of the cleared lands of J.A. McDermott to State Highway No. 38; thence the lands and Crab Tree swamp of Jim Lynch to the Atlantic Coast Line railroad company's right of way, including woods, swamp land, streams, and uncultivated lands within these bounds.
4. Further, that the respondents have used, are using, and permitting the use of the properties herein described as places for the congregation of people or persons for drinking, cursing, fighting, association with women of questionable character, and other forms of boisterous and disorderly conduct.
5. Petitioner is further informed and believes that the respondents will continue to occupy, use, and maintain the aforesaid places and properties as a common nuisance and as places for storage, possession, sale, and consumption of contraband alcoholic liquors and beverages, and places for rowdyism, disorderly conduct, and lawlessness, all of which will be done indefinitely in the future unless restricted and forbidden by the injunction of this honorable Court; that said places are common nuisances, of great injury to the public; which injury is irreparable and cannot be compensated in damages; and your petitioner is informed and believes that the State has no adequate remedy at law and that said nuisances will be continued unless the respondents are restrained and enjoined by this honorable Court.
6. Your petitioner is informed and believes that Stonewall Filling Station is owned by Kelley Thompkins and that H.W. Tallevast has some interest or rights in connection with said property, and that North Conway Filling Station is owned by Snow Hill Farms Company, a corporation under the laws of the State of South Carolina, at Conway, S.C., and that T.J. Bell has some interest or right in connection with it, and that Crab Tree Filling Station is owned by T.W. Smith, and that H.W. Tallevast has some right or interest in it, and that copies of all orders and proceedings had herein should be served on the parties and persons named in this paragraph for their information and guidance.
Wherefore the said John M. Daniel, as Attorney General for and on behalf of the State of South Carolina, prays: (1) That the said respondents, their agents, servants, and employees may be perpetually enoined from using or permitting to be used the premises described in this petition as a place where contraband alcoholic liquors and beverages are stored, concealed, sold, delivered, dispensed, and/or consumed, and that they be further restrained from using or permitting the use of said premises for the aforesaid purposes or as places for persons to congregate to drink alcoholic beverages or engage in boisterous, disorderly, and unlawful conduct.
(2) That in the meantime the said respondents be enjoined until the further order of this Court from use or permitting to be used the said premises as places where contraband alcoholic liquors and beverages are sold, stored, concealed, delivered, dispensed, or consumed in any manner and from permitting persons to resort to said premises for the purpose of using the same as resorts for drinking alcoholic liquors and beverages and in engaging in boisterous, disorderly and unlawful conduct.
JOHN M. DANIEL, Attorney General.
ORDEROn hearing the petition and affidavits in the above stated case it is ordered:
That the respondents, Dock Anderson, H.P. Anderson, Gaines Anderson, alias Gaines Powell, Johnnie Johnson, Clyde Long, Ed. Thompkins, Daggett Elvis, alias D.C. Elvis, Charlie McCormick, Theo Lee, Henry King, Leon Bryant, Dentie Garren, James Garren, Evan Huggins, B.O. Hill, Sam Anderson, Archie Allen, Harry Collins, Roy Collins, Hill Willis, Sam Anderson, Holland Tyler, alias H.T. Tyler, Stonewall Filling Station, North Conway Filling Station, and Crab Tree Filling Station show cause before the Supreme Court at Columbia, in said State on November 11, 1929, at 10 o'clock in the forenoon or as soon thereafter as counsel can be heard why an injunction should not be issued restraining them and each of them, their agents, servants, and employees, from selling, storing, concealing, and having in possession or dispensing in any manner contraband alcoholic liquors and beverages upon the properties described in the petition herein located to the north of the city of Conway, Horry County, S.C. and as described in the petition herein; that they and each of them also show cause why an injunction should not be issued restraining them and each of them, their agents, servants, and employees, from permitting persons to resort to the premises herein described for the purpose of obtaining, procuring, storing, concealing, and drinking alcoholic liquors or beverages; that the respondents and each of them also show cause why they should not be enjoined from using and permitting the use of the premises herein described as places where women of questionable character are at times permitted or allowed to loiter and persons engage in rowdyism, shooting, fighting, cursing, and loud noises.
It is further ordered that the said respondents, Dock Anderson, H.P. Anderson, Gaines Anderson, alias Gaines Powell, Johnnie Johnson, Clyde Long, Ed. Thompkins, Dagett Elvis, alias D.C. Elvis, Charlie McCormick, Theo Lee, Henry King, Leon Bryant, Dentie Garren, James Garren, Evan Huggins, B.O. Hill, Sam Anderson, Archie Allen, Harry Collins, Roy Collins, Hill Willis, Sam Anderson, Holland Tyler, alias H.T. Tyler, Stonewall Filling Station, North Conway Filling Station, and Crab Tree Filling Station, their agents, servants, and employees, be in the meantime restrained and are hereby forbidden to suffer or permit any of the said acts until the further order of this Court.
It is further ordered that this original order be exhibited to the respondents, and that copies of the petition, affidavits, and of this order be served upon them.
It is further ordered that the respondents serve a copy of their answer and return to the order and petition herein or their notice of appearance in this proceeding on the Attorney General at his office, Columbia, S.C. on or before the 8th of November, 1929.
Attorney General John M. Daniel, Asst. Atty. Generals Cordie Page, Solicitor L.M. Gasque, and Messrs. Sherwood McMillan, for petitioner.
December 10, 1929.
The opinion of the Court was delivered by
This is a proceeding brought in the original jurisdiction of this Court by the State of South Carolina, through Attorney General J.M. Daniel, for enjoining the maintenance of nuisances alleged to exist at three filling stations and on nearby premises at North Conway, in Horry County.
Upon the petition and supporting papers, Mr. Justice Blease issued an order, which will be incorporated in the report of the case, temporarily restraining the respondents from maintaining the alleged nuisances and directing them to show cause before this Court on November 11, 1929, why a permanent injunction should not issue. The respondents did not appear, demur, answer, or meet the issue in any way. It is only fair to say that there are no allegations in the petition that the owners of the premises in question willingly or knowingly allowed them to be used for the purposes and in the manner complained of. In fact, the Snow Hill Farms Company, the alleged owner of one of the filling stations, appeared by counsel and stated that, if it should be found that the property was used as alleged, it joined in the prayer of the petition.
The petition, which will be reported, contains ample appropriate allegations of fact to show, if sustained, the existence of nuisances as alleged. Through the respondents' default, these allegations must be taken as true, and they are fully supported by the report of the grand jury for Horry County and by affidavits of the sheriff and other peace officers, as well as citizens residing near the filling stations, to the effect that numerous raids had been made on the filling stations and the woods and swamp adjacent to them, that large quantities of whisky had been found at or near the filling stations, that whisky is sold and drunk there, that they are the scenes of much cursing, rowdying, shooting, and other disorderly conduct, that they are visited by women of questionable character, that land in the vicinity has greatly decreased in value and is largely unsalable on account of the method of operation of the filling stations, etc.
Under the authority of State ex rel. Attorney General v. Riddock Byrnes, 78 S.C. 286, 58 S.E., 803; State ex rel. Attorney General v. New Charleston Hotel Company, 80 S.C. 120, 61 S.E., 207; and State ex rel. Attorney General v. City Club, 83 S.C. 509, 65 S.E., 730, the petitioner is clearly entitled to the injunction sought.
Now, therefore, on motion of the Attorney General, it is ordered that the respondents, Dock Anderson, H.P. Anderson, Gaines Anderson, alias Gaines Powell, Johnnie Johnson, Clyde Long, Ed. Thompkins, Daggett Elvis, alias D. C. Elvis, Charlie McCormick, Theo Lee, Henry King, Leon Bryant, Dentie Garren, James Garren, Evan Huggins, B.O. Hill, Sam Anderson, Archie Allen, Harry Collins, Roy Collins, Hill Willis, Sam Anderson, Holland Tyer, alias H.T. Tyler, Stonewall Filling Station, North Conway Filling Station, and Crabtree Filling Station, their agents, servants, and employees be, and they are hereby, perpetually restrained and enjoined from using, or permitting to be used, the premises described in the petition herein, as a place or places where contraband alcoholic liquors and beverages are stored, concealed, sold, delivered, dispensed, and/or consumed, and from using or permitting the use of the said premises for the aforesaid purposes, and from using or permitting the use of said premises as places for persons who congregate to drink alcoholic beverages or engage in boisterous, disorderly, or unlawful conduct.
It is further ordered that a certified copy of this original order be exhibited and delivered to each of the respondents, and that a certified copy be filed with the Clerk of Court for Horry County.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN, BLEASE and CARTER concur.