The majority opinion proposes to sustain the lower court on the ground that the club was in fact a public tavern, and that calling it a private club is a "mere subterfuge." The findings of fact of the lower court do not sustain that conclusion.
Inasmuch as the question here turns largely upon the findings, I feel justified in setting out the relevant portions of the findings of fact, conclusions of law, and the court's memorandum. The lower court found that the defendant Anthony, owner of the premises, leased it to the club and received the club membership fees as rental, and, further:
"IV. That said club is not open to the public but only to members and their friends; that membership allegedly is obtained in said club by making application, which said application is approved by the officers of said club and by the payment of a membership fee of $1.00; however, on July 6th, 1939, one Bro[s]vik, a stranger and an investigator, went to said club, made application to the manager of said club, paid a membership fee and was forthwith admitted into said club as a member where he immediately purchased liquor. *Page 160
"V. That the membership of said club consists of business people of the neighboring towns; that there are eight hundred (800) members in said club; that the purpose of said club is social and recreational; that said club has been conducted in a quiet and orderly manner.
"VI. That from the time said club was organized and opened to September 5, 1940, gambling devices have been maintained in said club and gambling permitted; that subsequent to September 5th, 1940, gambling devices have been brought into the said club at the request of members.
"VII. That on March 18th, 1939, July 12th, 1939, May 24th, 1940, and Sept. 5th, 1940, the sheriff of said Lac qui Parle County raided said club and on each raid found gambling devices in said club; that on December 11th, 1940, the said club pleaded guilty to two charges of maintaining gambling devices in said club, one of maintaining gambling devices on May 24th, 1940, and one of maintaining gambling devices on September 5th, 1940.
"VIII. That said club has a federal liquor stamp but has no license to sell beer or liquor; that some members have their own beer and liquor at said club; that it is the policy of said club to sell and furnish beer and liquor to members of said club when said members do not have their own there; that it is the policy of said club to sell and furnish beer and liquor to members of said club whenever said members ask for it.
"IX. That on March 18th, 1939, July 12th, 1939, May 24th, 1940, and September 5th, 1940, the sheriff of said County of Lac qui Parle raided said club and on each raid found large quantities of beer and liquor; that on September 23rd, 1940, said club was convicted of illegally keeping liquor for sale; that on November 8th, 1939, Joseph F. Anthony pleaded guilty to illegal sale of liquor at said club; that on March 25th, 1939, Robert Burnip pleaded guilty to illegal sale of liquor at said club; that on March 25th, 1939, Robert Burnip pleaded guilty to illegal sale of 3.2 beer at said club; that on December 11th, 1940, Robert Burnip pleaded guilty to illegal sale of liquor at said club. *Page 161
"X. That the officials of said club saw and knew that beer and liquor were being illegally sold and served in said club, and saw and knew that gambling devices were maintained in said club; that said officials took no official act to stop said illegal sale of beer and liquor and took no official act to have said gambling devices removed; that said officials allowed the manager of said club to have the concessions of said club and to make all the profits he could from said concessions."
The conclusions of law were:
"I. That defendant The Sportsmen's Country Club, its agents, officers, servants and employees, and defendants Joseph F. Anthony, Robert Burnip, Evalyn [sic] Burnip, D.B. Claggett [sic] and Paul Canton be and hereby are permanently enjoined from illegally selling or serving beer and liquor in said club and from maintaining gambling devices in said club.
"II. That defendant The Sportsmen's Country Club be and hereby is abated as a public nuisance, and said defendants he and hereby are forever restrained and enjoined from conducting and operating said club."
In the memorandum, made a part of the order, the trial court said in part:
"Apparently any one can go to the manager of the club, pay $1.00 and become a member, the price of the cover charge of a public night club.
"In my opinion the whole affair is a mere subterfuge whereby the laws of the State may be openly and flauntingly disregarded and violated.
"If the State is powerless to remove this cancer from its midst, then indeed the State is impotent and its sovereignty a farce."
There is no finding anywhere that there was any drunkenness or misconduct of any kind, except for the sale of liquor and gambling. There is no finding that the club is near any populated community; that there are any nearby residences, or, if there *Page 162 were, that they were disturbed by any noise or rowdiness at the club. As far as the findings go, this club may have been many miles from any habitation, and it was conducted in a quiet, peaceful, and decent manner, except that liquor was sold to members and gambling permitted within the private membership of the club. The evidence in the case shows conclusively that the principal function and purpose of the club was recreational; that members went there with their wives and friends for the purpose of hunting, fishing, and trapshooting and to enjoy the meals served there; that whatever gambling took place was intermittent and made available at the express request of the members; and that whatever sale of liquor took place was incidental only to the primary purposes of the club, which were wholly decent and respectable. To say that the conditions enumerated are such as to constitute a public tavern is, to me, a plain distortion of the facts as they appear in the record. Even the state finds it necessary in its brief to say that the second conclusion of law "does not mean that the court intended to forfeit the corporate character and destroy the life of the corporation," and that this court may wish, in affirming, "to clarify this language so as to prescribe more definitely the relief granted and to indicate that no operations may be carried on by defendants on the premises against which the action is directed."
The sole basis for any other interpretation rests upon the memorandum of the trial judge made a part of the order. This is a comment by the trial court plainly not intended to be a finding of fact. It is surmise and opinion, nothing more. It indicates only that had there been any evidence to support a finding that the club was a public tavern the trial court would not have hesitated to so find. He finds on the contrary "that said club is not open to the public but only to members and their friends."
The effect of such a memorandum has been well settled by this court in McGovern v. Federal Land Bank, 209 Minn. 403, 406,296 N.W. 473, 475, where the court says: "The memorandum of the court may be resorted to in order to sustain findings, but may not *Page 163 be used to overturn them." See also Sime v. Jensen, 213 Minn. 476,7 N.W.2d 325.
Of still greater seriousness is the utter failure of the findings to sustain the judgment against individual defendants based upon their operation of a public tavern. All that appears with respect to defendant Joseph F. Anthony is that he owns the building leased by the club and receives the membership fees of the club as rental; that he pleaded guilty to the illegal sale of liquor at the club on one occasion nearly a year and a half prior to the present suit. Beyond that the findings as to him are silent. All that we see in the findings with reference to defendant Robert Burnip is that on two occasions prior to the present suit he pleaded guilty to illegal sale of liquor at the club, once on March 25, 1939, and again on December 11, 1940. Yet on this record this court says that these defendants are operating a public tavern.
I have no sympathy for gamblers and liquor law violators, but even their rights and liabilities should be determined by an impartial trial upon the facts found against them, and upon the law applicable thereto. Courts expect no less from administrative agencies. They, themselves, should set the example.
In some parts of the majority opinion, and particularly in the concluding paragraph, the thesis that a public tavern was operated is abandoned, and the decision is placed upon the broad ground that an equity court will grant injunctive relief after repeated convictions have failed to stop the commission of crime. Even this ground does not sustain the findings against defendants Anthony, Evelyn Burnip, Robert Burnip, D.B. Clagett, and Paul Canton. If the final paragraph of the opinion means what it says, it commits this court to a recognition of an equitable jurisdiction far beyond anything permitted by any of the decisions cited in the opinion, and beyond any decision that I have been able to find. It would in effect convert the equity court into an adjunct of our police courts, and would require our district courts to take charge of every habitual drunkard and gambler and possibly other habitual criminal offenders. I do not believe this *Page 164 court is prepared to go to that length, and yet to that length must they go if the lower court in this case is to be sustained.