#### State ex rel. Attorney General, Respondent, vs. Stoughton Club of Stoughton, Wisconsin, and others, Appellants.

*May 3*

May *23, 1916.*

*Intoxicating liquors: Unlawful sale: Public nuisance: Abatement by equitable action: Conviction not a condition precedent: Constitutional law: Right to jury trial.*

1. Under sec. 3180a, Stats. 1915, an equitable action may be maintained to enjoin or abate the public nuisance which, by see. 1563, is declared to exist when any place is used for the sale of intoxicating liquors in violation of law.

2. Although under sec. 1563 a conviction of the keeper of such a place must be alleged and proved before the nuisance could be abated, there is no such condition precedent to an abatement under sec. 3180a,- and the legislature had full power to provide the cumulative remedy given by the latter section.

3. Persons dealing in intoxicating liquors have no vested right to a jury trial upon the question whether or not their place of business is a public nuisance. B’or such purpose an equitable action constitutes due process of law.

Ai'UEau from an order of the circuit court for Dane *county:*E. Ray Stevens, Circuit Judge.

*Affirmed.*

*363Action to enjoin tbe defendants, tbe *Stoughton Gluh*and tbe members thereof, from maintaining their club premises and from vending, dealing in, or giving away intoxicating liquors contrary to tbe excise laws of the state. Tbe complaint alleges that tbe defendants at their club rooms in tbe city of Stoughton have sold and are selling intoxicating liquors in violation of tbe laws of tbe state and that tbe *Stoughton Club*exists primarily for tbe purpose of evading tbe provisions of tbe laws of tbe state relating to tbe sale of intoxicating liquors. Tbe defendants demurred to tbe complaint because it appears upon its face (1) that tbe court has no jurisdiction of tbe person of tbe defendants; (2) that plaintiff has not legal capacity to sue; and (3) that tbe complaint does not state facts sufficient to constitute a cause of ac- - tion; and from an order overruling such demurrer they appealed.

Eor tbe appellants tbe cause was submitted on tbe brief of *J. G. Harper*and *Rufus B. Smith.*

Eor tbe respondent there was a brief by *Walter G.*Owen, attorney, and *Gilbert & Ela,*of counsel, and oral argument by *Emerson Ela.*

ViNJE, J.

Tbe defendants’ contentions as summarized, in , their brief are (1) that plaintiff’s remedy is adequate at law and therefore tbe facts alleged in tbe complaint are not cognizable in a court of equity; (2) sec. 1563, Stats. 1915, provides for a penalty, and equity will not take jurisdiction to punish criminals in absence of special and very definite injury to property or property'rights; (3) this action deprived tbe defendants of trial by jury to which they are entitled; and (4) if, under any view of the case, sec. 1563, Stats. 1915, can be construed to give jurisdiction to equity of tbe action at bar, it is on the sole condition that the complaint allege tbe conviction of the defendants. We deem it unneces■sary to further state the argument or distinguish tbe cases referred to by tbe defendants because tbe question presented by the appeal is ruled by tbe provisions of our own statutes *364passed since the cases cited were decided. Sec. 1563, Stats. 1915, provides:

> “All places of whatever description in which intoxicating liquors are sold in violation of law shall be held and are declared public nuisances and shall, upon the conviction of the keeper thereof, be shut up and abated.”

Sec. 3180a, Stats. 1915, also provides a remedy for abating public nuisances as follows:

> “An action to enjoin a public nuisance may be commenced and prosecuted in the circuit court of the county in which the alleged nuisance exists, in the name of the state, either by the attorney.general upon his own information, or upon the relation of a private individual having first obtained leave from said court to commence and prosecute the same.”

This section was enacted in 1905, and prior to that time the abatement of places where intoxicating liquors were sold in violation of law was under sec. 1563, and confessedly a conviction of the keeper had to be alleged and proved before making a case under it. But sec. 3180a gives a cumulative remedy in equity which is invoked in this case. The power of the legislature to provide such cumulative equitable remedy cannot be successfully questioned. It was invoked and, *sub*silentio, sanctioned in *State ex rel. Marvin v.*Larson, 153 Wis. 488, 140 N. W. 285. The power of the legislature to deal with the liquor traffic by regulation or suppression is quite plenary and has time and again been justified as a valid exercise of the police power. In *Zodrow v.*State, 154 Wis. 551, 143 N. W. 693, in speaking of such power it was said:

> “It may be summed up as resting upon the fundamental principle that society has an inherent right to protect itself; that the preservation of law and order is paramount to the rights of individuals or property in manufacturing or selling intoxicating liquors; that the sobriety,-health, peace, comfort, and happiness of society demand reasonable regulation, if not entire prohibition, of the liquor traffic. Unrestricted, it leads to drunkenness, poverty, lawlessness, vice, and crime of *365almost every description. Against this result society has the inherent right to protect itself — a right which antedates all constitutions and written laws — a right which springs out of the very foundations upon which the social organism rests; a right which needs no other justification for its existence or exercise than that it is reasonably necessary in order to promote the general welfare of the state.”

Persons dealing in intoxicating liquors have no vested right in a jury trial in order to determine whether or not their place of business is a public nuisance. Eor such purpose an action bn equity constitutes due process of law. Since the demurrer admitted the allegation of the complaint that defendants dealt in intoxicating liquors in violation of law in their club rooms, and since sec. 1563 declares every such place a public nuisance, the complaint stated a good cause of action and the demurrer was properly overruled.

*By the Court.*— Order affirmed.