2 F.2d 462 | 9th Cir. | 1924
Section 21 of the National Prohibition Act (Comp. St. Ann. Supp. 1923) § 10138½jj) declares that any room, house, building, boat, vehicle, structure or place where intoxicating liquor is manufactured, sold, kept, or bartered in violation of the act, is a common nuisance. Section 22 (Comp. St. Ann. Supp. 1923, § 10138½k) provides that an action to enjoin any such nuisance may be brought in the name of the United States; by the Attorney General of the United States, or by any United States, attorney, or any prosecuting
This is a writ of error to review a judgment of conviction for contempt under the foregoing statute, and the sole question presented for our consideration is the validity of the statute under which the conviction was had. The nuisance provisions of the National Prohibition Act differ in no material respect from the provisions of the statute of the state of Kansas, considered by the Supreme Court in Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed. 305. In answer to a similar objection the court there said:
“Equally untenable is the proposition that proceedings in equity for the purposes indicated in the thirteenth section of the statute are inconsistent with due process of law. ‘In regard to public nuisances,’ Mr. Justice Story says, ‘the jurisdiction of courts of equity seems to be of a very ancient date, and has been distinctly traced back to the reign of Queen Elizabeth. The jurisdiction is applicable not only to public nuisances, strictly so called, but also to purprestures upon public rights and property. * * * In ease of public nuisances, properly so called, an indictment lies to abate them, and to punish the offenders. But an information, also, lies in equity to redress the grievance by way of injunction.’ * * * The ground of this jurisdiction in cases of purprosture, as well as of public nuisances, is the ability of courts of equity to give a more speedy, effectual, and permanent remedy, than can be had at law. They can, not only prevent nuisances that are threatened, and before irreparable mischief ensues, but arrest or abate those in progress, and, by perpetual injunction, protect the public against them in the future; whereas courts of law can only reach existing nuisances, leaving future acts to be the subject of new prosecutions or proceedings. This is a salutary jurisdiction, especially where a nuisance affects the health, morals, or safety of the community. Though not frequently exercised, the power undoubtedly exists in courts of equity thus to protect the public against injury.”
And in reference to the right of trial by jury the court added:
“As to the objection that the statute makes no provision for a jury trial in cases like this one, it is sufficient to say that such a mode of trial is not required in suits in equity brought to abate a public nuisance.” See, also, Lewinsohn v. United States (C. C. A.) 278 F. 421; United States v. Reisenweber (C. C. A.) 288 F. 520.
The objection to the validity of the statute is therefore without merit, and the judgment must be affirmed. Whether the case should have been brought here by appeal, instead of by writ of error, is immaterial, in view of section 4 of the Act of September 6, 1916, 39 Stat. 727 (Comp. St. § 1649a).
The judgment is affirmed.