Circuit Court of Appeals, Second Circuit.
*695 Herman Chaityn, of New York City (George Cohen and Sanford H. Cohen, both of New York City, of counsel), for appellant.
Medina, Sherpick & McKee, of New York City (Eugene A. Sherpick, of New York City, of counsel), for defendant 252 and 254 West Fifty-Fifth Street Corporation.
Before ROGERS, HOUGH, and HAND, Circuit Judges.
*696 HOUGH, Circuit Judge (after stating the facts as above).
It is true that no evidence was given showing that Gaffney personally sold liquor upon the premises between the date of his lease and the date of filing bill. Therefore it is argued that, because it was not proved that any "cause of action" existed against Gaffney personally at the beginning of suit, suit must fall.
This is a misconception of the nature of the suit. Whether Gaffney or another performed the acts which made the place a nuisance is immaterial. In a certain sense the suit was against the nuisance, and such a suit must be (as was this one) against the owner of the fee, unless the nuisance be of such a nature that the owner's presence is not necessary to a complete determination of the controversy. To such a bill it was only necessary to add as proper parties "all persons whose right, title, or interest may be affected by the granting of the relief sought." 29 Cyc. p. 1239, citing cases.
Objection is also made to the taking of evidence as to the continuance of acts productive of nuisance after the filing of the bill. This is without merit, for, if any change in the ultimate rights of the parties has been produced by lapse of time since suit begun, a decree in equity will always be addressed to the rights existing, not at the moment of suit begun, but at the time of its determination. 21 C. J. p. 663. This is what is meant by the saying that equity acts in præsenti.
We therefore hold that the bill was formally well drawn, and it was proven by persuasive evidence that, before and during Gaffney's time as a tenant, a nuisance existed upon the premises caused (for the most part) by the doings of Marsenac.
This appeal brings us squarely to one of the points not reached in Duignan's Case (C. C. A.) 4 F.(2d) 983, for lack of pleading, viz.: Is it constitutional and lawful to forfeit Mantell's lease upon evidence failing to show that Mantell personally did any of the things which in the aggregate made a portion of the premises that he rented a statutory nuisance?
That Mantell himself sold no liquor, and did not personally keep a bar or run a restaurant, is immaterial; a man may maintain a nuisance of the kind here complained of without having knowledge of any actual sale. Wiggins v. United States (C. C. A.) 272 F. 41, a case showing a man who made preparations to maintain a nuisance, but who carefully abstained from personally doing the work.
If the facts were that Mantell was deceived, that without his knowledge Gaffney, Marsenac et al. used premises obtained from Mantell for unlawful purposes, the situation would be quite different. What our holding would be, were Mantell guiltless of wrongdoing, we are not called upon to say, because we find that Mantell knew what Marsenac was doing, that he was personally remonstrated with about it, demands were made upon him by the landlord that he abate the nuisance, and he did nothing. On this record he consented to and connived at the doing of that which was proven against Gaffney and Marsenac. This is the direct evidence, and Mantell's failure to deny or explain induces belief that, had he testified, he would not have benefited his own case.
Thus the question is reduced to the inquiry whether such a man was lawfully treated by the decree complained of, under the Constitution and statutes of the United States.
The constitutional authority to enact sections 21-23 of title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, §§ 10138½jj-10138½l) may be assigned to the police power. It has been said, rather carelessly, that the United States has no police power; but the accurate way of putting it is that the United States possesses whatever police power is appropriate to the exercise of any attribute of sovereignty specifically granted it by the Constitution.
In Mugler v. Kansas, 8 S. Ct. 273, 123 U.S. 623, 31 L. Ed. 205, it was held that the state of Kansas had, as a part of its police power, the right even to destroy a brewery, when a Kansas prohibition law made a brewery a nuisance. Granting that, before the Eighteenth Amendment, the United States possessed no police power competent for the purposes of the decree below, when the amendment gave to the United States the powers thereby created, it gave also all the power necessary and appropriate to carry out the object of the amendment. Therefore the nation has to-day as much authority, police power, or sovereignty (the words shade into each other) to forfeit a lease for selling beer as Kansas had 40 years ago to destroy a building wherein the beer was brewed.
In considering jurisdiction over this particular kind of statutory nuisance, it is well to remember (as was observed in Grossman v. United States [C. C. A.] 280 F. 683) that jurisdiction in equity to restrain and abate nuisance is much older than the Volstead Act; that the right of any tenant to *697 retain possession of the leased premises depends upon his observance of the covenants in the lease, both express and implied; and that every lease contains an implied obligation that the lessee shall use the property lawfully and for lawful purposes. 36 C. J. 87. See, especially, Noon v. Mironski, 108 P. 1069, 58 Wash. 453.
Entirely apart from the specific covenants of both Mantell's and Gaffney's leases, each of them impliedly contained a covenant to obey the National Prohibition Law. When that covenant was broken by the tenant, all right to maintain the lease as against the landlord was gone; and it was assuredly within the power of the nation to aid the landlord to recover his premises, by a method well known to the law, and not created by the amendment.
Decree affirmed, with costs against Mantell in favor of the landlord.
Let mandate issue forthwith.
