Carleton v. Rugg

• Decision Date: 03 September 1889
• Parties: CARLETON et al. v. RUGG et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

149 Mass. 550

22 N.E. 55

CARLETON et al. v. RUGG et al.

Supreme Judicial Court of Massachusetts, Essex.

September 3, 1889

September 3, 1889

HEADNOTES

COUNSEL

W.H Moody, for petitioners.

E.B Fuller, for respondents.

OPINION

KNOWLTON J.

St.1887 c. 380, § 1, is as follows: "The supreme judicial court and superior court shall have jurisdiction in equity, upon information filed by the district attorney for the district or upon the petition of not less than ten legal voters of any town or city, setting forth the fact that any building, place, or tenement therein is resorted to for prostitution, lewdness, or illegal gaming, or is used for the illegal keeping or sale of intoxicating liquors, to restrain, enjoin, or abate the same as a common nuisance, and an injunction for such purpose may be issued by any justice of either of said courts."

The first question reported for our decision is whether this statute is constitutional. The respondents contend that it is in conflict with article 12 of the declaration of rights, which provides that "no subject shall be arrested, imprisoned, despoiled or deprived of his property, immunities, or privileges *** but by the judgment of his peers or the law of the land." The right of the legislature, in the exercise of the police power of the commonwealth, to pass laws regulating the sale of intoxicating liquors, or absolutely prohibiting it, except for medicinal, mechanical or chemical purposes, has been repeatedly asserted in able and elaborate opinions of this court and of the supreme court of the United States, which cover every question that can fairly be raised under the constitution of Massachusetts or of the United States. Fisher v. McGirr, 1 Gray, 1; License Cases, 5 How. 504; Bartemeyer v. Iowa, 18 Wall. 129; Beer Co. v. Massachusetts, 97 U.S. 25; Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273; Com. v. Intoxicating Liquors, 115 Mass. 153. We do not understand the respondents to contend that the provisions of Pub.St. c. 100, which regulate the sale of intoxicating liquors, or those of Pub.St. c. 101, § 6, which declare that "all buildings, places, or tenements *** used for the illegal keeping or sale of intoxicating liquors shall be deemed common nuisances," are unconstitutional; but the argument is that by a process in equity, for the abatement of an alleged common nuisance of the kind named in this statute, they are liable to be deprived of their property, immunities, and privileges otherwise than by the judgment of their peers or the law of the land. The fallacy of the argument lies in part in disregarding the distinction between a proceeding to abate a nuisance, which looks only to the property that in the use made of it constitutes the nuisance, and a proceeding to punish an offenderfor the crime of maintaining a nuisance. These two proceedings are entirely unlike. The latter is conducted under the provisions of the criminal law, and deals only with the person who has violated the law. The former is governed by the rules which relate to property, and its only connection with persons is through property in which they may be interested. That which is declared by a valid statute to be a nuisance is deemed in law to be a nuisance in fact, and should be dealt with as such. The people, speaking through their representatives, have proclaimed it to be offensive and injurious to the public, and the law will not tolerate it. The fact that keeping a nuisance is a crime does not deprive a court of equity of the power to abate the nuisance. Attorney General v. Hunter, 1 Dev.Eq. 12; People v. City of St. Louis, 5 Gilman, 351; Ewell v. Greenwood, 26 Iowa, 377; Minke v. Hopeman, 87 Ill. 450. Apart from the method provided for instituting proceedings, the statute under consideration merely says that courts of equity shall have jurisdiction of this kind of public nuisances as they have of others. It authorizes the making of any reasonable order or the issue of any proper process adapted to the abatement or prevention of the nuisance; and there can be no doubt of the constitutional right of the legislature to prescribe the agency to represent the public in setting the law in motion. That may as well be the district attorney of the district or 10 legal voters of the town where the nuisance is alleged to exist as the attorney general, if the legislature so determines. Littleton v. Fritz, 65 Iowa, 488, 22 N.W. 641; Kansas v. Ziebold, 123 U.S. 623, 8 S.Ct. 273. It is urged that this statute makes no provision for a trial by jury. This objection applies as well to nearly all our legislation giving jurisdiction in equity. Pub.St. c. 151, § 27, provides for a trial by jury in every case in equity in which that mode of trial is deemed by the court to be desirable. In cases in equity in which defendants have a constitutional right to such a trial, the courts secure it to them. Powers v. Raymond, 137 Mass. 483. In the very recent case of Kansas v. Ziebold, ubi supra, the supreme court of the United States fully considered all the constitutional questions which arise in the case at bar. In the law of Kansas, in relation to nuisances of the kind we are considering, is this language: "The attorney general, county attorney, or any citizen of the county where such nuisance exists or is kept or is maintained, may maintain an action in the name of the state to abate and perpetually enjoin the same. The injunction shall be granted at the commencement of the action, and no bond shall be required." Act Kan.1881, § 13, as amended by act 1885. Then follow provisions for punishing disobedience of an injunction, as for a contempt. The defendants were the owners of a brewery, which was built before the passage of the statute, and was worth about $10,000 if it could be used for brewing beer, but was of little value for any other use. Under the law a building so used was a nuisance. A suit in equity was brought under the statute, alleging that the defendants' building was used for manufacturing intoxicating liquor, and praying that it might be abated as a nuisance. The defendants contended that the statute, if enforced, would abridge their privileges and immunities, and deprive them of their property, without due process of law, and in violation of the fourteenth amendment of the constitution of the United States. But in a very elaborate opinion the court held otherwise, and sustained the constitutionality of the law in every particular. The statute made no provision for a trial by jury, and it seems that under the constitution of Kansas parties are entitled to a trial in that mode in all cases in which that had been the method of trial prior to the adoption of the constitution. The court held that a proceeding in equity to abate a nuisance without such a trial was "due process of law," because it had not been the custom to try such cases to a jury. Similar decisions have been made in Iowa and in Kansas. Littleton v. Fritz, 65 Iowa, 488, 22 N.W. 641; State v. Crawford, 28 Kan. 726. In our state the right to proceed in equity to abate public nuisances, and to destroy private property in the exercise of the police power, where necessary for the protection of the public, has been recognized in many cases. District Attorney v. Railroad Co., 16 Gray, 242; Belcher v. Farrar, 8 Allen, 325; Winthrop v. Farrar, 11 Allen, 398; Attorney General v. Ice Co., 104 Mass. 239; Watertown v. Mayo, 109 Mass. 315; Bancroft v. Cambridge, 126 Mass. 438. We are of opinion that the statute is constitutional.

It was competent for the petitioners to show that the person who signed the petition by the name "A.M. Allen" was Augustine M. Allen, who was a legal voter of the city of Haverhill. Com. v. Hamilton, 15 Gray, 480. The third question relates to the power of the justice, in the exercise of his discretion, to order a preliminary injunction. The principles by which the court should be governed in dealing with an application for a preliminary injunction under this statute are the same as apply to proceedings to enjoin other kinds of public nuisances. The 10 legal voters who unite in a petition represent the public as does the attorney general in other similar cases. The fact that no one of them, in the present case, would suffer any damage by the continuance of the nuisance beyond that common to all law-abiding citizens, was immaterial. In all suits in equity, before a case can be regularly heard upon its merits, the defendant must have reasonable time prescribed by the rule in which to answer. Issues, whether of law or of fact, must be made up, and an opportunity given to prepare for the hearing. An application for a preliminary injunction rests upon the alleged existence of an emergency or of a special reason for an order before the case can be regularly heard; and it is only to prevent serious injury, for which there is no other complete and adequate remedy, that a court is justified in interfering with the conduct of persons, or the use of property, before trial. To properly determine what shall be done in cases of this kind involves an exercise of sound discretion by the presiding judge, who should look to the interests of the petitioners, and of the public whom they represent, and should at the same time remember that, without good reason, a defendant is not to be dealt with ex parte, nor forced to trial before the case is ripe for hearing. It should be borne in mind that this is not a statute which professes to look to the conduct of persons to prevent the commission of crime. If it were, it would have no legitimate place in our jurisprudence. There is no doubt that, in hearings upon applications for preliminary injunctions and orders pendente lite in suits in equity, and in proceedings for the punishment of contempt of court, the...