The Caldwell tribune. [volume] (Caldwell, Idaho Territory [Idaho]) 1883-1928, 1885-03-27
A TRIUMPH FOR TEMPERANCE

Iosca Prohfbifionisfs Successful In a SecoS<
Legal BattIe-4 Decision by the State Sss-
prene Court.
At Council Bluffs on the 18th, the suprem me
court through Judge Rothrock, all the bench
concurring, rendered an opinion affirming the
constitutlonality OF the prohibition law. This
opinion is sweeping, conclusive and complete
1t sustains the validity of the injunctions TO
abate nuisances which exist as saloons and in
particular maintains the provisions Of the act
as it stands to-day on the statute books OF the
state.
The title and facts of the case with abre-
Waited opinions are A. D. Littleton VS.. Louis
| Fritz, appellant, appeal from the Polk county
circuit court. This is an action in equity by
which the plaintiff, citizen of Polk county,
seeks to enjon and abate q nuisance which 1t
is alleged the defendant keeps and maintains
In Des Moines, by selling intoxicating liquors
CONTRARY to law. A temporary injunction
was prayed for and notice Of the application
therefor was served on the defendant, who ap-
pealed and the motion Tor all injunction was
sustained and writ was Issued anu served on
the defendant. This appeal was taken from
the order granting temporary injunction by
Judge Rothrock, who announced the opinion
that the case turned upon the question whether
any citizen Of the country where nuisance OF
this kind is kept may maintain an acton IN
putty to enjoin and aoate IL, ana whether the
court has the power under the law to order
temporary injunction in such cases. Alter
citing the provisions Of the statute relating 10
the manufacture or sale of Intoxicating liquors
as nuisance, the opinion states that THIS
statute plainly authorizes any citizen OF the
county to maintain the action, and there can
lie no denial of the right Of the action, unless |
it be held that the legislature had no constltu- |
tional power to enact the law. The jurisdic- |
ton of the courts to abate nuisances is Oh |
very ancient origin. The jurisdiction is april
cable not only to public nuisances, strictly
so called, but also to purprestures upon
r pIe"' is s not am and Cannot be disputed.
'Let it be conceded" says the opinion,
that the courts OF equity, before the
adoption of the constitution, declined 10 en-
terrain an action for an injunction TO restrain
and abate nuisances in cases where no proper
ty rights were involved. The legislative his
tory OF this state and the jurisdiction enter
aimed by its courts do not warrant the CON
fusion that there is no legislative discretion
n regard to what controversies sha be OF
equitable cognizanee. Since the adoption Oh
he constitut on jury has been allowed Tor
ctions in divorce, and this right has been
aiken away. So in cases of foreclosures VI
mortgages and mechanics hens. we are not
hen required to examine the laws In force at
he time the constitution was adopted, and
old that in every case that was then triaDle
v Jury the right to such trial remains invio-
ate. Such a construction OF the constitution ,
provision involves the narrow view OF legls- ,
atlve power. 1t being conceded that equity
ad Jurisdiction in the case of nuisance, we
an see no inversion Of the rights Of the citi-
en- by an act of the legislature extending TO
Uses where its distinct property right Is III s
Owed, and we may say here that the ulstlnc- k
on thought to be made between nuisances |,
here property rights are and are notinyolyed, q
very limited, narrow and not well defined.
he defendant in order to succeed IN tue de-
nse that the proceeding by lnJuncuon is an
tempt to enforce a criminal law ny civil pro- s,
SIS demands in effect that the courts must :,
tablsh the principle that because the NUS u
zee complained of is a crime, 1t is entitled 10 81
e favor and protection OF the court OF cl
uitg. Such rule would not command the pl
spect or approval of any one" lie
1t is further claimed that the statute Is IN
lid because 1t authorizes an action 10 Dc
ought BY any citizen of the county Without II
owing that he is especially damaged by the nc
isance What we lave said with reference W.
the power of the legislature to enlarge the ~
-isdiction OF the court OF equity WIN Apply az
tn the same force to this objection. IL IS m
rely within the power of the Legislature TO m
sirnate the persons at whose suit nu sancc in
" be enioined or abated. The reason OF tue -,
e which formerly obtained that private
lion will not lie for public nu sance WIN
vate actions would cause a multiplicity Oh -
is, one being as well entitled to brlng an o eA
ion as another. We are strongly Inclined I'll
think that in this case decree Tor the ue- tn
dant would be a bar to any other ike &C. fir
n for an Injunction upon the evidence OF m,
es of liquor within the same time as IS en- ~,
ced in this action. The plaintiH Is py law NV
de representative of the public III DIlng- Oh
and maintaining action. The law haYihS Gu
lounced the defendants calling as a nul- the
ce, in the judgment of the law he was ev, mc
day doing acts which produced great ana
parable injury to the plaintiff ana other {
zens-injuries that, in the judgment Oh pei
legislature, ought to be enjoined and pre- 70,
ted by action in equity No earthly power raj
BILE to repair the injury which may be done 49,
the maintenance Of the nuisance from the 'ne
lmencement Of the action to the final de- on
,, and for that reason temporary lnJunc- gra
is authorized by law. cou
he opinion is very lengthy, and so connect moi
rs to render any abridged report OF it un- NJ
sfactory and injurious, but the above are "a'
mt points therefrom. wer
SCORING Il BIG VICTORY. Sc