American Falls press. [volume] (American Falls, Idaho) 1907-1937, 1914-04-23

ing 10 hhlc village OF AiutlicdH rhlibi
is a nuisance. All these conditions
we're proven TO have existed and were
caused by the actions OF the defend
ant In conducting the business at the
place and In the In which the
same was conducted. Graves ct al
vs.. Rodenhausen, II Alt. 774).
We are satisfied that the great
weight OF authority will bear US out
that IN reaching the conclusion as to
whether a place is a public nuisance,
the court should take into considera-
ton not only the things done, the man
ner in which they arc done, the char
acter OF the business conducted, the
time and the place, and the natural
consequences that follow the conduct
Ing Of the business. but all the SIR
rounding circumstances. What Is a
nuisance Is very largely a question Of
fact, In determining which all the cir
cumatances must be taken into con-
sideration with the right Of the plain
tin and the defendant to the use OF
their property.
We have. therefore. concluded that
under the facts In this case the de-
PENDANT is maintaining a nuisance mn
der section 1856, supra. and that UNI
der section 500, supra. the village OF
American Falls Is a proper party plain
tin and Is authorized under the statute
above cited to maintain this action for
the purpose OF abating said nuisance.
II would be unnecessary for this
court to pass upon any other question
involved In this case but In order that
there be no misunderstanding be-
tween the court and counsel, we might
say that this action can not be main
tanned under the session laws OF 1911.
section 2, page 32. or any of the pro-
visions Of the local option law. We
are not called upon TO determine the
present status OF Power county 30 far
as this decision Is concerned. and II. as
before stated, this action is controlled
under section 1866. whether Power
county is wet or dry is immaterial, but
since counsel has briefed this question
and II has been submitted, In view OF
the Importance Of this opinion to the
inhabitants of the village of American
Falls, as we'll as Power county. II
might be the part of wisdom for us to
express u present views briefly upon
this point.
There are a great many authorities
on both sides Of this question. The in
dustry OF counsel for the defendant,
which Is very commendable. demon
~strates their familiarity with the ques-
ton. However, In our opinion, Power
county Is not wet In part and dry in
part IL Is either wet or dry. We be-
lieve the rule to be hat should the
legislature amend the provisions of
the local option law that said amend
ment can not affect the territory in
which the law Is already In force. II
was established upon the trial Of this
cause hat about four-ffths of the ter
ritory out Of which Power county was
created was dry territory. II is con
tended by counsel for the defendant
that part OF Power county is wet and
that part is dry; IN other words, that
the territory which was formerly wet
Is still wet aud that the portion that
was formerly dry is still dry.
AS before stated. In our judgment.
under the local option law of this state
this contention can not successfully
be maintained. There are any number
of authorities which hold that the
Legislature by mending the local op-
ton law can not deprive the inlIabp-
ants OF a dry territory Of the right 10
the enforcement of the local option
law. II will be contended that the
same rule would apply In wet terri
tory. which might be true provided the
unit was capable OF division. which
is not possible In this instance. Pow
or county Is a unit. Under the local
option law Il Is not capable Of division
for the purpose determining whether
a portion shall be wet and a portion
dry. Four-fifths OF that unit was dry
when the legislature created Power
county. and the legislature can not
change that condition by adding one-
fifth Of a prior wet territory. and
thereby indirectly do the very thing
that they are prohibited from doing
directly. Counsel admits that four
hfths OF Power county is dry territory.
II one-ffth is wet. then the entire
county to all intents and purposes is
wet, and the Legislature by adding a
strip OF formerly wet territory has
been able to defeat the will OF the
majority OF the people and have in
directly made the county wet.
The ease OF Eek parte Fields. Sc S.
w i022. holds that addition of new
territory TO the local option district
does not annul the former result. nor
does Il authorize a new vote for the