The Clarksburg telegram. [volume] (Clarksburg, W. Va.) 1874-1926, 1909-05-13
State Supreme Court Re.
verses Circuit Court of I
Brooke County.

4 . 4
Though the keeping OF a gaming
house Is OF criminal nature. pun.
ishable and abatable by Indictment
and conviction. the supreme court of
4 appeals has held that there Is no
Jurisdiction in equity TO abate II UNI
less It is injurious to personal or
\ property rights.
II In handing down the opinion the
higher court reversed the decree OF
the Brooke county circuit court, dis
solved the Injunction and dismissed
the bill against George Ehrlick and
Others who were restrained perpet-,
Enaliy by the lower court from con-
Quoting a turf exchange"
n About a year ago the turf exchange
gamblers were driven out OF Pitts,
burg by the police and moved over
into Brooke county where a turf ex.
change was operated. Asspecial train
was run to Brooke county over the
Pennsylvania line to accommodate the
gamblers.
The situation aroused the whole
State and the late Attorney General
May took the field against the Pitts
burg gamblers. The local authorities
however. seemed competent to deal
with the situation and the prosecute
ing attorney of Brooke county on the
petition of citizen secured pres
liminary injunction inhibitlng the
gamblers from conducting the turf
exchange. The lower court perpet-
uated the Injunction. 4
n Judge Poffenbarger. who wrote the
opinion OF the court says:
n The charge against the defend
ants Is, the keeping and conducting
of gambling house. constituting a
public nuisance. Nothing of a detri-
ment TO the community or the public
at large is alleged against them other
than the unlawfulness OF the en-
Eterprise. The bill says they take dIsl-
Ehonest profits from the betting and
carry 1t on with great profit to them
selves and at slight risk Of a loss.
It is not alleged that anybody's prop
erty is injured, or that the place is
In any sense disorderly. The theory
of the bill, adhered to In the argu-
ment, Is that the enterprise. tending
to corrupt the morals Of the public,
makes 1t a nuisance, abatable by in-
junction.
"Jurisdiction in equity to abate
nuIsances Is undoubted and of uni-
versal recognition. 1t is equally wslI
settled that the state. may institute
suits for that purpose in proper
i cases But 1t is nowhere asserted
THAT either the state or a private In
]dividual may maintain such suit in
any and all cases of nuisance: Some
nuisances, are criminal while others
i are not. Criminal nuisances are
abatable by criminal process. and.
where this process is adequate. jur-
isdiction in equity fails. either be-
cause adequate legal remedy pre-
cludcs Jurisdiction In equity, or the
subject matter is beyond the scope
OF equity Jurisdiction. II a nuisance,
purely criminal. Injuries or affects a
private plaintiff in certain respects.
he may resort to equity for relief.
but the existence of neither civil
or criminal public nuisance neces-
sarily aclls for interposition by a
court of equity"
The decision is of the utmost inn
portance. for it specifically defines
where an injunction vii lie 10 abate
a nuisance. Judge Poffenbarger re-
fers to the celebrated case OF Eugene
Debs, when the strike leader was
jailed for violating an Injunction.
and says 1t was "a material, substan-
tiai, incaiculable injury to the peo-
pie" He also refers to the Ken
lucky cases of Commonwealth against
I;McGovern, in which the court grant
ed an Injunction to prevent the use
OF certain premises for the holding
Of prize fight. on the ground that
such use of the property would con-
stltute a public nuisance. but de-
clared at the same time that 1t could
not grant an injunction tc prevent the
pIiAe H6Ht, ueSduse tHe pEOcfSa VI
the criminal court was adequate for
that purpose.
In the syllabus. Judge Pofenbarser
says:
IF a charge is. of a criminal ma
ture. or an offense against the pub
lie. and does not touch the enjoy
ment of property, or health. 1t is not
within the jurisdiction Of court OF
equity.
Equity has no, jurisdiction to
abate a public nuisance. either civil
or criminal. at the instance Of an in
divldual of the state lot affecting
or injuring the enjoyment of proper
ty or other personal rights.
I'm so far as public nuisance In
lures property or substantially in
terferes with the enjoyment thereof
directly or Indirectly. or constitutes
a purpresture. excluding citizens from
the enjoyment OF their civil rights in
highways and other public grounds