Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1900-08-07
FILES HIS ANSWER.
Judge Philbrook Claims the
Act Unconstitutional,
Ely Which Prohibition by Injunction
Is Sought.
Cases Should Be Tough! in Criminal Not Civil
Court.

| In his answer to the petition Of Rev.
A. Y. Dunn and others Of Waterville.
asking that Judge Whitehouse issue
an injunction to restrain William A.
Barry from maintaining an alleged
nuisance at 5 Common street. Water
vile, Judge w. c. Phlbrook. Barry S
attorney. claims that the act undo.
which the petition is brought, is un-
constitutional He also claims that the
matter is something that should come
| before the criminal and not before the
| civil court
| This gives an entirely new face to
the case. The claim all along has been
that by this new method Of procedure,
that is prohibition by injunction, the
prohibitory law could be enforced, and
there would not be the violations which
ii is claimed have existed.
The wholesalers have feared that the
new method would prove such a bar
rier to their business that they have
become interested and it is claimed
that the case will be fought to the last
ditch. They, it is said. have offered
to furnish unlimited money in carry
ing on the fight. Those who are on
the inside say that the case is likely
to become as noted as the far famed
original package case which created
such a sensation in the State, a few
years ago.
In his answer to the allegations Mr..
Barry files general demurrer first,
and for special cause, under this head,
says:
THAT the complainants have not
made or stated such a case as entities;
them in a court of equity to the relief
prayed for
THAT the bill of complaint is in
formal. irregular and incomplete and
the allegations are vague, indefinite
and uncertain and not in accordance
with the proceedings Of practice III
equity in this State.
THAT the petition or bill makes
William A. Barry, the respondent
alone. says he is still keeping the Park
cafe. at Common street. prays that
the place be adjudged a nuisance and
still does not allege that the Park cafe
is owned by him. neither does the bill
state who the owner is or say that
any one is the owner.
4-That the allegations of the bill Of
complaint set forth no private nul-
ular individual who has not suffered
in common with the public generally,
but if ii is any nuisance alleged or set
forth by the allegations contained in
the bill it is only a public nuisance
which is sought to be abated on the
application of individuals.
THAT the allegations in said petit
ton set forth an existing and not i
prospective nuisance and that the in
junction asked for. is not for the pre-
vention Of the creation of a nuisance,
hut to compel its removal and TO en-
join its continuance; and it appears
that the buildings or Park cafe was
in existence and had been erected ana
completed long before the commence
mcnt of any proceedings for its abate-
ment.
6-That. from the allegations of this
bill of complaint it does not appear
that the fact of an existing nuisance
had been established by a suit at com
mon law prior to the institution of
these proceedings; nor does it appeal
from the allegations that there is any
pressing or imperious necessity. no.
that there is any right in danger Of be
ing destroyed or that there is no ade-
quate remedy at law.
THAT by said allegations contain
ed in the petition, it appears that tha
court. as a court Of equity, is asked 70
restrain acts which by the statutes Of
this state are rendered criminal.
S-That the rights which are claim
ed in said proceedings by the com
plainants are doubtful and uncertain
and such that no cOgniZance thereof
can properly be taken by a court Of
equity.
Second-The respondent, insisting on
the aforesaid defences. for further an
swer. denies the allegations that he
kept, January i, 1900, and still keeps
a place where intOXicants are sold.
Third-That he, William A. Barry,
was never the owner Of the Park cafe
in Waterville.
Fourth-That the respondent alleges
that Chapter 90 of the Public Laws OF
81 under which the proceedings were
begun. is a contravention of the con
stitution Of Maine.