McCook weekly tribune. (McCook, Neb.) 188?-1886, 1885-03-26
4 TRIUMPH FOR TEMPERANCE.

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Iotca ProItbttionists Successful Ia a Second
Legal Batie-A Decision BY the State Sss-
1,rense Court.
At Council Bluffs on the 18th, the supreme
court, through Judge Rothrock, all the bench
concurring, rendered an opinion affirming the
constitutonality 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 1t stands to-day on the statute books OF the
state.
The title and facts of the case with abre-
Waited opinions are: A. ID. LttletOu VS.. Louis
Fritz, appellant, appeal from the Polk county
circuit court. This is an action in equity by
which the plaintiff, a citizen of Polk county,
seeks to enjoln aud abate nuisance which it
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-
peaed and the motion for an injunction was
sustained and O writ was issued and served on
the defendant. Thts appeal was taken from
the order granting temporary in junction by
JuUgc hOUQrOch, WHO duDOuuCco tuC OpiuiOu
that the case turned upon the question whether
any citizen of the country where nuisance OF
this kind is kept may MAINTAIN an action In
.uuity to cnioi and abate it, and whether the
court has the power under the law to order
temporary inlunct on in such cases. Alter
citing the provisions OF the statute relating TO
the manufacture or sale of intoxicating liquors
as a nuisance, the opinion states that this
statute plainly authorizes any citizen OF the
county to maintain the action, and there can
be no denial of the right of the action, unless
it be held that the legislature had no constitu-
tional power to enact the law. The Jurisdlc-
ton of the courts to abate nuisances is OF
very ancient origin. The jurisdiction Is appli-
cable not only to public nuisances, strictly
so-called, but also to purprestures upon
public rights and property. This general
rule Is not and cannot be disputed.
''Let it be conceded says the opinion,
sthat the courts of equity, before the
adoption of the constitution, declined to en-
terrain an action for an injunction to restrain
and abate nuisAnces in cases where no proper
ty rights were involved. The legislative mis-
tory of this state and the jurisdiction enter
tanned by its courts do not warrant the con-
rlusion that there is no Legislative discretion
In regard to what controversies sha be OF
equitable cognizance. Since the adoption OF
the cOnstitut on jury has been allowed Tor
actions in divorce, and this right has peen
taken away. So in cases OF foreclosures 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 that was then triaDle
by a Jury the right to such trial remains lnvio-
late. Such construction OF the CONSTITUTION
al provision involves the narrow view OF legis-
latiye power. 1t being conceded that equity
had jurisdiction in the case OF nuisance, we
can see no inversion of the rights of the citi-
zen by an act of the legislature extending 10
cases where its distinct property right Is In
vOlved, and we may say here that Inc dlstlnc-
ton thought to be made between nusances
where property rights are and are otlnVoiVed,
is very limited, narrow and not well defined.
The defendant. in order to succeed in the de-
tense that the proceeding BY injunction IS an
attempt to enforce criminal law by civil pro-
cess demands in effect that the courts must
establish the principle that because the NUS
ance complained of is crime, 1t Is enulled 70
the favor and protection of the court OF
equity. Such rule would not command the
respect or approval of any one."
It is further claimed that the statute Is IN
valid because it authorizes an acton 10 Do
brought by any citizen of the county without
showing that he is especially damaged by the
nuisance. What we have said with reference
TO the power of the legislature to enlarge the
jurisdiction of the court OF equity WILL Apply
with the same force to this objection. IL Ii
surely within the power OF the legislature W
designate the persons at whose suit D nuisance
may be enloined or abateo. Inc feaeon VI Ine
rule which formerly obtained that private
action will not lie for public nuisance with
put special damages, was that to antnoria as
private actions would cause multiplicity Oh
suits one being as well entitled U DrihS al
action as another. We are strongly inclined
to think that in this case decree for the the de-
PENDANT would be bar to any other like &C.
lion for an Injunction upon the evidence OF
sales of liquor within the same time as is en-
braced in this action. The plaintiff IS by law
made representative of the public IN bring
ing and maintaining action. The law having
denounced the defendants calling as nul-
sance, in the judgment of the law ne was ev,
cry day doing acts which produced great ana
rreparable injury to the plaintiff and other
,itizens--injuries that, in the judgment OF
the legislature, ought to be enjoineai ana pre-
vented by action in equity No earthly power
IS able to repair the injury which may be done
oy the maintenance of the nuisance from the
of the action to the nnal ue-
cree, and for that reason temporary lnJunc-
ion is authorized BY law.
The opinion is very lengthy, and so connect
IF n