Cañon City record., 1906-07-05

ring such Jurisdiction, and declaring
places SO kept common nuisance, CIV
ing courts of equity direct power and
authority to abate and suppress them.
Unfortunately we have no such sta
tute, and until a statute law of this
character is secured there can be no
relief in equity here from these Of
lenses, except in cases where injury
to private rights or to property can be
shown. and that of course Is not even
attempted in this suit Earnest effort
should be made to secure at once this
important remedial legislation.
1t is contended by the city attorney.
because the city council has declared
the unlawful sale of liquors and the
keeping of the same for sale to be
nuisance, that such action gives this
court jurisdiction to abate the same
by Injunction. The district court is
creature of the constitution of the
state and derives its power from that
instrument and the state statutes, not
from local laws and ordinances. If
this court is without jurisdiction in
equity in case like the one at bar,
surely no mere city ordinance can con-
fer such authority and power. While
il is true that a court of general equity
Jurisdiction may interfere by in
junction to abate a nuisance, 1t can
only do SO in a case where the nuis-
ance is one in fact and SO generally
recognized The mere illegal sale of
liquor within the city limits is not a
nuisance in fact nor was it one at COM
mon law. An ordinance declaration
by the city council cannot change a
physical fact and make that nuis-
ance which in truth is not such. The
council might declare a dry goods
store nuisance, or a meat market, or
a printing shop or a grocery store,
but no one believes that such declara-
ton would change the fact, or vest in
equity jurisdiction to abate them as
such by Injunction. The kind of nuis-
ance which may be abated in equity.
by the use of Injunction, is one which
is in fact a nuisance, such as obstruc-
tons to public highways, or which
works an injury to private rights or
property, or is dangerous to the health
of an entire community. like a cess
pool. slaughter house, rending fac
tory of other noxious establishments,
the creation and maintenance of
which. may or may not, but which
rarely do, involve the question of a
violation of criminal law, and even
then when the law affords an adequate
remedy equity does not intervene. II
the ordinance relied upon by plaintiff
declaring the illegal sale,' and the
keeping for sale. of liquor within the
corporate limits of this city to be a
nuisance is valid and binding then a
plain. speedy, effectual and adequate
remedy is at hand by which the same
may be abated on authority of the city,
by police power, just as other nuis-
ances are. Such remedy is much more
extensive and satisfactory than that
by injunction even if the latter could
be lawfully employed.
The manifest purpose of this suit,
from the facts alleged and set forth
in the complaint. is to restrain the
defendants from the continued COM
mission of the various crimes therein
charged against them, because of the
corrupting and vicious influences
which such alleged acts and conduct
upon their part have upon the morals
of the community. In other words it
is a plain attempt through the aid of a
court of equity to prevent the violation
of the criminal statutes of the state
and to confer upon that court the ad-
ministration of the criminal law. To
acceed to this demand would be to
overthrow the epdre established
course of criminal procedure. II is
not the intention of the constitution
that persons should be punished for
violating general laws, by proceed
ings in equity, or by a court acting
without a jury, and Subject to no linn
itations upon its power to fine and i'm
prison, except its own discretion. BY
our constitution and laws persons
charged with the commission of the
offenses here alleged are entitled to
a trial by jury, should they so elect
and to hold otherwise and thus deny
this right would be direct violation
both of the constitution of the state
laws, by a tribunal chosen to truly in
terpret and fairly and justly enforce
the law. the greatest calamity that
could possibly befall the people, for
il court may deliberately ignore the
constitution and laws in one instance,
why not In any number.
Whatever the private views and de-
sires of the judge of this court may
be. is matter of total Indifference,
the law as 1t is found, not as the court
or some other person may think ii
ought to be, must be recognized and
impartially administered.
After that full and thorough con-
sideration and Investigation, which
the Importance OF the matters involved
demand. the conclusion is irrisistable
that n court of euufty has absolutely