The Madison daily leader. [volume] (Madison, S.D.) 1890-current, 1899-09-02

in this country, Cnat u M"lSP
poration without any general law e'ther
Of the city or the state, within when .
given structure can be shown to DC q
nuisance. al by its mere declarat'on
that it is one, subject it to removal py
any person supposed to be aggrleved,
or even by the city itself. This would
place every house, every business, and
all the property OF the city at the mercy
of the temporary local authorities
The above is the opinion OF the high
est court on this continent. II the SIM
pie declaration of the city council that a
certain thing is a nuisance. is final'
where does their power cease? Plenty
of authorities hold that even a court OF
equity cannot enjoin a saloon where in
toxicating liquors are sold according to
law where the statutes afford ample
remedy. Surely the statutes are ample
in this state.
"Whether the city council has a right
within certain limits to punish persons
for carrying on an illegal traffic within
the city. is quite a different question
from the one before us at the present
time. The only question here is. is this
particular ordinance legal: IL there
was any part Of this ordinance that was
legal and capable of standing alone
when the illegal part was expunged. |
would sustain that part, but this cannot
be done. AS | view it. the legal and H.
legal parts are so interviewer. inter.
tw,ned. and indivisable that the whole
ordinance must stand or fall together.
by this ordinance the very first pro-
ceeding on the part OF the justice after
the complaint is filed. is to issue a war
rant for the arrest OF the person. and
such warrant shall order the officer to
'abate such nuisance by securely clos
ing etc, and that until final judgment
in such case. the officer so abating such
nuisance shall keep and maintain pos
session of the same. ard shall keep the
same securely closed
"And when it comes to the final judy
ment in addition to a fine, the ordinance
says the justice shall enter an order as
a part Of the judgment Of the court. ad-
judging the room, building or enclosure
described in the complaint to be a pub.
lie nuisance, and direct the officer to
keep possession etc.
1T will thus be seen that it is utterly
impossible under this ordinance to i'm.
pose a fine without doing the other
things commanded also.
My opinion is
Il. The city council has no power to
declare the place where intoxicating
liquors are illegally sold. a nuisance.
49, have no power to close a place
where intoxicating liquors are illegally
sold.
%. have no power under this ordi.
nance to impose a fine without also
closing the building where the liquors
are sold.
The above is my opinion briefly ex.
pressed. So | shall sustain the object.
ion OF the defendant to the introduction
of any more evidence in the case. dis.
charge the defendant and order the
possession of the premises restored to
him."
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