65 Iowa 488 | Iowa | 1885
The case, therefore, turns upon the question whether any citizen of the county, where a nuisance of this character is kept, may maintain an action in equity to enjoin and abate it, and whether the court has the power under the law to order a temporary injunction in such cases. It is not disputed that the building or erection of whatever kind, in or at which intoxicating liquors are unlawfully manufactured or sold, is a nuisance. It was provided in section 926 of the Code of 1851, that “ the places commonly known as ‘dram-shops ’ are hereby prohibited, and declared public nuisances. * * *" Thu law with reference to the sale of intoxicating liquors has undergone many changes, since 1851; but the unlawful traffic has always since that time been declared by legislative enactment to be a nuisance. The provision above cited has never been repealed. That the legislature has ample power to prohibit the manufacture and sale of intoxicating liquors has been settled law in this state for more than thirty years. Legislation upon that subject has been uniformly upheld and approved by this court since the decision in the case of Our House v. State, 4 G. Greene, 172, and the case of Santo v. State, 2 Iowa, 165. Thousands of persons have beeti prosecuted by indictment, fined and imprisoned in this state for the maintenance .of nuisances in the keeping of saloons.
Ey chapter 113 of the Laws of the Twentieth General Assembly, the statute upon this subject was amended. It was made more sweeping in its provisions, by prohibiting the sale of all kinds of intoxicating liquors, under heavy penalties,
This statute plainly authorizes any citizen of the county to maintain the action, and there can be no denial of the right of action, unless it be held that the legislature had no constitutional power to enact the law. Counsel for appellant contend that the statute is .repugnant to sections 9,10,11 and 12 of article I of the constitution. These sections provide that “the right of trial by jury shall remain inviolate,” and that in all criminal prosecutions, involving life or liberty, the accused shall have the right to a trial by jury, upon an indictment by a grand jury.
The question presented by counsel in argument may be stated in this general form: Is the statute under considera
The jurisdiction of courts of equity to enjoin and abate nuisances is of very ancient origin: In 2 Story, Eq., 921, this language is employed: “In regard to public nuisances, the jurisdiction of courts of equity seems to be of very ancient date, and has been directly traced back to the reign of Queen Elizabeth. The jurisdiction is applicable not only to public nuisances strictly so called, but also to purprestures irpon public rights and property.” This general, rule is not, and cannot be, disputed. Courts of equity in nearly all the states of the Union entertain jurisdicion to restrain and abate nuisances, either at the suit of a public prosecutor, or at the instance of a private individual, who shows that he sustains some special injury by the establishment or existence of the nuisance.
Such a case being of equitable cognizance, neither party could, at the time of the adoption of the constitution, demand a jury trial as matter of right. There was no statute law or constitutional provision then in force which gave an absolute right to a trial by jury in an equity case. State v.
But it is insisted by counsel for appellant that courts of equity did not have jurisdiction at the time of the adoption of the constitution to abate any nuisance, except in cases where some property right was affected by the maintenance of the nuisance; and it is contended that the enlargement of the jurisdiction to that class of cases in which property rights are not involved, is an abridgment of the right of trial by jury. The jurisdiction of the cause of action “is the power over the subject-matter given by the laws of the sovereignty in which the tribunal exists.” 1 Bouv. Law Dict., 769.
Let it be conceded that courts of equity, before the adoption of the constitution, declined to entertain actions of injunction to restrain and abate nuisances in cases where no property rights were involved. The legislative history of this state, and the jurisdiction entertained by its courts, do not warrant the conclusions that there is no legislative discretion in regard to what controversies shall be of equitable cognizance. Since the adoption of the constitution, a jury has been allowed in actions for divorce, and this right has been taken away. So in case of the foreclosure of mortgages and mechanics’ liens. We are not, then, required to examine the laws in force at the time the constitution was adopted, and hold that in every case which was then triable by a jury the right to such trial remains inviolate. Such a construction of the constitutional'provision involves too narrow a view of legislative power. It being conceded that equity had jurisdiction in cases of nuisance, we can see "no invasion of the rights of the citizen by an act of the legislature extending it to cases where no distinct property right is involved;
Courts constantly enjoin nuisances where no damages can be estimated in money, and where the nuisance produces mere annoyance and discomfort to the complaining party; as a manufacture producing discomfort to individuals; (Catlin v. Valentine, 9 Paige, Ch., 575;) a blacksmith-shop near plaintiff’s dwelling; (Faucher v. Grass, 60 Iowa, 505;) a livery-stable; (Shiras v. Olinger, 50 Iowa, 571;) a hog lot; (Richards v. Holt, 61 Iowa, 529.) These, and many other cases which might be cited, show a very great relaxation of the old rule that no action will lie to restrain and abate a public or common nuisance, unless the plaintiff, in the language of Blackstone, “ suffers some extraordinary damage beyond the rest of the king’s subjects by a public nuisance, in which case he shall have private satisfaction by action; as if, by means of a ditch dug across a public highway, which is a common nuisance, a man or his horse suffer any injury by falling therein, for this particular damage, which is not common to others, the party shall have his action.”
It is not easy to perceive why the law-making power may not authorize the suppression of the saloon nuisance by injunction because no property rights are involved. It was always allowable to enjoin the obstruction of a public highway, or a navigable stream, by an action in equity at the suit of the public. This was done because it was claimed that a property right in the public was involved; and such proceedings were authorized without the aid of any statute. Such nuisances are detrimental to the public, because they obstruct travel and impede navigation. But the damages to the public are no more susceptible of computation than the injuries to the public by the unlawful maintenance of a saloon. In State v. Iron Cliffs Co., 54 Mich., 350, in discussing the power of the legislature under this provision of the constitution, it is said that “its power to create and enlarge
The defendant, in order to succeed in the defense that the proceeding by injunction is an attempt to enforce a criminal law by civil process, demands, in effect, that the courts must
There are many adjudged cases, aside from those above cited, which expressly hold that the fact that a nuisance is a crime, and punishable as such, does not deprive equity of its jurisdiction to restrain and abate it by injunction. People v. City of St. Louis, 5 Gillman, (Ill.,) 351; Attorney-general v. Railroad Co., 3 Greene, (N. J.,) Eq., 136; Attorney-general v. Hunter, 1 Dev. Eq., 12; Minke v. Hopeman, 87 Ill., 450. And this rule applies to actions by private individuals, and to suits for the benefit and in behalf of the public.
But there is another view of this question which must not
"We have disposed of every question made by counsel in the case. ¥e have pursued a different order in the discussion of the case from that adopted by counsel, and have not reviewed nor commented upon all the authorities cited; but we think we have fairly disposed of every question presen ted. The case has been exhaustively and ably argued, orally and in print, and we have given it our most careful consideration; and keeping in view that important and oft-repeated rule, that no court is authorized to deelai’e an act of the legislature invalid unless it is plainly, palpably and beyond doubt repugnant to some provision of the constitution, we reach the conclusion that the court below did not err in entertaining the action and in granting the temporary injunction. •
Affirmed.