Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
James T. Boyd, and Harlan L. Heward, for Appellant.
L. B. Fowler, Attorney-General, and Geo. B. Thatcher, for Respondent.
Brown & Belford, Amici Curiae.
Arthur F. Lasher, Amicus Curiae.
By the Court, Ducker, J.:
This is an appeal from an order of the district court granting an injunction pendente lite, enjoining the appellant, the Reno Brewing Company, from keeping or maintaining a building or buildings at or in the vicinity of 990 East Fourth Street, in Reno, Nevada, for the manufacturing, storing, selling, vending, or giving away or furnishing a malt or brewed drink commonly called Sierra Beverage, or any other beverage or malt or brewed drink of like kind or character.
The action was instituted in the district court on the relation of Geo. B. Thatcher, the then attorney-general of Nevada, under sections 14 and 17 of the prohibition law of this state, which reads:
Sec. 14. All houses, buildings, club rooms and places of every description, including drug stores, where intoxicating liquors are manufactured, stored, sold or vended, given away, or furnished contrary to law (including those in which clubs, orders or associations sell, barter, give away, distribute or dispense intoxicating liquors to
their members, by any means or device whatever, as provided in section six of this act) shall be held, taken and deemed common and public nuisances. And any person who shall maintain, or shall aid or abet, or knowingly be associated with others in maintaining such common and public nuisance, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than one hundred nor more than one thousand dollars, and by imprisonment in the county jail not less than thirty days nor more than twelve months for each offense, and judgment shall be given that such house, building or other place, or any room therein, be abated or closed up as a place for the sale or keeping of such liquors contrary to law, as the court may determine.
Sec. 17. The commissioner, his agents and deputies, and the attorney-general, prosecuting attorney, or any citizen of the county where such a nuisance as is defined in section fourteen of this act exists, or is kept or maintained, may maintain a suit in equity in the name of the state to abate and perpetually enjoin the same, and courts of equity shall have jurisdiction thereof. The injunction shall be granted as the commencement of the action and no bond shall be required. * * *
Section 1 of said act provides as follows:
Section 1. The word liquors' as used in this act shall be construed to embrace all malt, vinous or spirituous liquors, wine, porter, ale, beer or any other intoxicating drink, mixture or preparation of like nature; and all malt or brewed drinks, whether intoxicating or not, shall be deemed malt liquors within the meaning of this act; and all liquids, mixtures or preparations, whether patented or not, which will produce intoxication, and all beverages containing so much as one-half of one per centum of alcohol by volume, shall be deemed spirituous liquors, and all shall be embraced in the word liquors,' as hereinafter used in this act.
In paragraph 3 of the complaint it is alleged that
Said defendant owns, operates, and maintains buildings within said city of Reno, county of Washoe, state
aforesaid, and at 990 East Fourth Street, where it manufactures, stores, and threatens to sell or vend, give away or furnish, contrary to law, certain malt or brewed drink, under the name of Sierra Beverage,' containing approximately one-tenth (1/10) of one percent (1%) alcohol; and that said drink is what is commonly known and called near-beer'; that the manufacture and storing of said liquor is contrary to and in violation of sections 1 and 14, respectively, of that certain initiative act adopted by the people of the State of Nevada at the last general election, entitled An act to prohibit the manufacture, sale, keeping for sale, and gift, of malt, vinous and spirituous liquors, and other intoxicating drinks, mixtures or preparations; making the superintendent of the Nevada state police ex officio commissioner of prohibition, and defining his duties; and providing for the enforcement of this act, and prescribing penalties for the violation thereof.'
The manufacture or sale, etc., of malt liquors is prohibited by the act as indicated in the title. By section 1 The word liquors' as used in this act shall be construed to embrace all malt * * * liquors, * * * and all malt or brewed drinks, ...