The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1894-12-15
cepting parts of certain documents which
were allowed to be read In connection with,
other parts offered by the prosecution
CLAIM OF DEFENDANTS

other parts offered by the prosecution.
CLAIM OF DEFENDANTS.
Besides denying that any violation of the
injunction had been proved against them.
the defendants now reassert and insist that
the injunction is invalid on the two grounds
that the court had no jurisdiction to hear
and determine the case in which the In
junction was ordered and. that though
possessed of such jurisdiction. the court
lacked organic power TO make the par
ticular order I'm question. Reference is
made to Elk. Parte Fish, 11s u. S.. 713. 71s,
7ls; In Re Sawyer l24 u s.. 200. 22o-222;
McVeigh, SO L.. s., pa, 2S2-3; kerfoot VS..
People, 81 Ill. App. CT. 4os.
IL the injunction was. for any reason.
totally invalid, no violation or disregard OF
il could constitute punishable contempt
but if the court required jurisdiction and
did not exceed its powers in the particular
case, no irregularity or error In the pro-
cedure or in the order itself could justify
disobedience Of the writ. (Elliott VS.. Pier
pet, 1893; In Re Coz 127. L. S. 7si) The con-
siderations of public policy on which this
rule rests are too plain and well understood
to heed restatement-
Was the case one of which the court had
jurisdiction? No question is made, or could
be made in a proceeding for contempt, OF
the sufficiency of the petition for the in
junction in respect to matters of form
and averment merely. In Coy's case, the
court said:
In all such cases, when the question OF
jurisdiction Is raised. the point 10 be de-
cided is, whether the court has jurisdc-
ton of that class of offenses. If the statute
prisoner with jurisdiction to punish well
defined class of offenses, as forgery of its
bonds or perjury in its courts, its Judgment
as to what acts were necessary under these
statutes to constitute the crime is not re-
viewable on a writ of habeas corpus"
The question here, therefore, is whether
f10 cd hxyf f6a ,aff mas Of
a class which in a federal Circuit Court
admits of the remedy by injunction.
Without going into the details of aver
ment the charge made against the defend
ants was that they were engaged in con-
spiracy to hinder and interrupt interstate
commerce and ,5x. the carriage OF the EN- mails
by means and in a manner TO constitute,
within the recognized definitions, a public
nuisance.
A nuisance is Anything that unlawfully
worketh hurt, inconvenience or damage"
g Blackstone's Commentaries, 2l6)
"A public nuisance is such an inconvens
ience or troublesome offense as annovs
the whole community in general and not
merely some particular person." "a Black
stones Commentaries, 1861
AS defined in Wood on Nuisances ID. IS,
"A public nuisance is a violation of a pub
lie right either by direct encroachment
same m % act which tends ID to common ss n injury' %
or by omitting to do some act which the
common good requires, and which 1t is the
d
to do which results injuriously to the pub
lic"
PURPRESTURE.
form of public nuisance of which cogni-
zance has been taken by the courts of
equity in England and in this country is
called purpresture, which is defined to be
IAN encroachment upon lands or rights and
easements incident thereto belonging to
the public, and to which the public have a
croachwent upon navigable streams"
'The remedy for purpresture, simply Is
by information in equity at the suit of the
Attorney general or other proper officer"
Vanderbilt, ss n Y, $50; New orleans VS..
L. S. 10 Pet. (U. So 662; Atorney-general
VS.; Forbes. My. & c. 1881
There is wide difference between d pur-
pressure and nuisance. Although they
may co,exist, either may exist without the
other. If the act complained OF be pur-
presture ii may be restrained at the suit
of the Atorney-general, whether it u.
nuisance or not. Being an encroa bnent
Sn am sesion ses so Il any sa%axs m wcs
may accrue. But to constitute putiic
nuisance damage to the public right of nav
igation or other public right must be shown
to exist. If the act complained of be a mere
purpresture without being at the same time
an inquiry to be made whether 1t will be
more beneficial to the Crown to abate tie
purpresture or to suffer the erection to re-
main and be arrested But IL the pu pres
ture be also a public nuisance, this carhot
be done. for the Crown cannot sanction a
public nuisance"
cases and text writer's are cited to shcw,
that equity has jurisdiction to restrain
public nuisances upon bill or info matt, n
filed by the Attorney-general,o on behalf Cf
the people" (High on !njuncti2ns, Sec.
1870, 745, 759, 764: Pomeroy's Eq. Jur. Sec.
1g yscs Wcsd on Mrisa1sss pssss ~. stS Es
Mitford's Eq. Pl 104. III, 1876; Attorney gen
eral VS.. johnson, 2 Wills Ch. 81; Attorney
general VS. Tsrf Forbes R & G 49, A,o.y
general VS.. Birmingham, h. Il j. 52S;
People VS.. Miner, Lans. S93; People Z:
Railroad IL ass. Co s. n Y 2; Davis VS. Mayor
1896; rs id. 2S7: Attorney-general VS.. Hunter.
1 Dew. Eq. 12).
OTHER QUESTIONS INVOLVED.
I quote passages, some OF which besides
bearing upon the principal question Of ju-
risdiction, will be found Il be determinative
of other questions which have come under
discussion. Story says: Sec s2l. In regard
to public nuisances, the Jurisdiction IF
courts of equity seems 10 be OF q yer;
ancient date The Jurisdiction IS ap-
plcable not only to public nuisances, strict
ly so-called, but also to purprestures upcn
public rights and property. - In it's
common acceptation (pu..2r - .ure) IL is now
understood to mean an epcroa :hme1t lIcn
the King, either upon part Of his demesne
lands, or upon rights AMI easements - "a
by the Crown Of the public, such as orsn
highways public rivers, forts, streets, etc
and other public accommodl' as" CITY Of
New Orleans VS.. United States, 10 Peter g
662; Mohawk Bridge Co. VS.. Utica & Schen-
ectady r. r. Co. Paige p. 554: Attorney
general VS. Rohoes Coupanv PAIGE 100
"Sec. 923. In cases 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 instances of the interposition of the
court, however, are Qt is said) rare, and
principally confined to informations seeking
preventive relief. Thus. informations in
equity have been maintained against pub
Sec. 9A. The ground of this jur1sdic-
ton of courts of equity in cases of pur-
pressure, as well as of public nuisances
undoubtedly Is, their ability to give
more complete and perfect remedy than is
attainable at law, in order to prevent r-
reparable mischief, and also to suppress
oppressive and vexatious litigations. In
the courts OF law cannot TO restrain and
prevent such nuisances which are threat
ened, or are in progress, as well as to
abate those already existing. In the next
place, by a perpetual Injunction, the remedy
is made complete through all future time %
So Pomeroy, in Sec. 13f9, says: "A court
of equity has jurisdiction to restrain exist
junction at the suit of the Attorney-general
in England and at the suit of the State or