Davis v. Auld

• Decision Date: 12 September 1902
• Citation: 96 Me. 559,53 A. 118
• Parties: DAVIS et al. v. AULD et al. SAME v. SCHOPPE et al.
• Court: Maine Supreme Court

53 A. 118

96 Me. 559

DAVIS et al.

v. AULD et al.

SAME

v. SCHOPPE et al.

Supreme Judicial Court of Maine.

Sept. 12, 1902.

(Official.)

Appeal and exceptions from supreme judicial court, Sagadahoc county, in equity.

Suit by Austin L. Davis and others against Zebulon G. Auld and others, and by the same plaintiffs against George Schoppe and another. From decrees for plaintiffs, defendants appeal, and tiled exceptions. Decrees affirmed and exceptions overruled.

Petitions by 20 taxpayers of the city of Bath, under Rev. St. c. 17, § 1, as amended by Pub. Laws 1891, c. 98, against the owners and occupiers of certain buildings in that city, and praying for injunctions, both temporary and perpetual, against the defendants, and to restrain them from using or allowing said places to be used for the illegal sale or keeping for sale intoxicating liquors.

The defendants demurred; but the justice sitting below, in the first instance, overruled the demurrers, and, having heard the parties, who, by answers, denied the charges of the petitions, sustained the petitions and granted injunctions.

The defendants took appeals from the decrees ordering the injunctions; also filed exceptions to the rulings upon the demurrers.

The statute under which the petitions were brought is as follows:

"Section 1. * * * All houses, shops or places where intoxicating liquors are sold for tippling purposes, and all places of resort where intoxicating liquors are kept, sold, given away, drank, or dispensed in any manner not provided for by law, are common nuisances. The supreme court shall have jurisdiction in equity, upon information filed by the county attorney or upon petition of not less than twenty legal voters of such town or city, setting forth any of the facts contained herein, to restrain, enjoin or abate the same, and an injunction for such purpose may be issued by said court or any justice thereof."

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE. STROUT, SAVAGE, POWERS, and PEABODY, JJ.

Frank E. Southard, for plaintiffs. Geo. E. Hughes, for defendants Auld and Davis. John Scott, for defendant Thompson. Frank L. Staples, for defendant Schoppe.

EMERY, J. In this state it has long been settled by common consent, expressed in both legislative and judicial action, that "all buildings, shops, or places where intoxicating liquors are sold for tippling purposes, and all places of resort where intoxicating liquors are kept, sold, given away, drank or dispensed in any manner not provided by law are common nuisances"; that is, are hurtful to the peace, safety, health, or morals of the whole people. Rev. St. c. 17, § 1.

Prior to 1891, one method provided by that statute for suppressing, restraining, or abating such nuisances was by a criminal prosecution against the persons keeping or maintaining them, followed upon conviction by fine or imprisonment of the individual, and, if need be, by a warrant for abatement by the sheriff. What other powers the courts then had to deal with such nuisances outside of the power above named need not now be considered.

In 1891, however, the legislature, by statutory enactment, expressly conferred upon this court and any justice thereof jurisdiction in equity, upon petition of not less than 20 legal voters of the town where such nuisance is alleged to exist, to restrain, enjoin, or abate the same, and to issue an injunction for such purpose. Pub. Laws 1891, c. 98. This equity jurisdiction, thus expressly conferred by statute, was in this proceeding invoked against these respondents by these petitioners, 20 legal voters of the city of Bath, to restrain and enjoin them from longer keeping or maintaining such a nuisance in Bath.

The respondents demurred to the petition, and also answered, denying that they were keeping or maintaining such nuisance as alleged. Upon hearing, the justice of the first instance overruled the demurrer, and, upon further hearing upon the issues of fact, found that the premises described in the petition were a common nuisance, and then decreed that the respondents be perpetually enjoined from using any part of the described premises for the illegal sale or illegal keeping of intoxicating liquors. The respondents excepted to the overruling of their demurrer, and also appealed from the final decree.

The respondents now urge several objections to this procedure and decree.

1. The respondents contend that this is really a criminal prosecution, though styled a petition in equity, and that, if maintained, it deprives them of safeguards placed by the constitution about all persons accused of crimes. The argument is that the purpose and effect of the proceeding are to place the respondents under a court injunction, and then further proceed against them for a violation of the injunction, as for contempt of court, and thus subject them to punishment in the discretion of the justices of the court without the protection afforded by the constitution and statutes to respondents in criminal prosecutions.

Whatever may be said of the argument, we cannot accept the respondents' premises. A criminal prosecution is to punish the individual for the criminal part of an act already committed. This procedure does not subject them to punishment, nor seek to punish them, for any past act. It does not subject the respondents to any fine, imprisonment, or disability of any kind for anything they may have done prior to the filing of the petition. The record cannot be used against them as a conviction for any crime, even for the smallest misdemeanor. The procedure is purely civil in character as well as in name. It has none of the peculiar elements or consequences of a criminal prosecution. In re Rancour, 66 N. H. 172, 20 Atl. 930. But it is argued that, if the decree be affirmed, and they be hereafter charged with a violation of the injunction, they would then also and ipso facto be charged with a crime, and be liable to punishment for the crime at the discretion of justices unrestrained by the rules and principles governing criminal prosecutions and sentences. It is true that, if the respondents violate the injunction, they will also and ipso facto commit an offense against the criminal law. The same act is often both a civil and criminal wrong. Many acts formerly regarded as civil wrongs only have later been made also criminal. They do not thereby become only criminal. The civil remedy is not taken away. The sufferer by fraud may maintain his civil action against the wrongdoer, and the latter, because his act is also a crime, cannot successfully claim that he is to be tried only by the rules of the criminal law. The equity jurisdiction of the court to restrain and enjoin by equity procedure trespasses upon property has long been conceded. Many of such trespasses have also from time to time been made by statute indictable offenses. These statutes, however, have not abridged the equity jurisdiction of the court as to such trespasses, and do not entitle the trespassers to any immunity from that equity jurisdiction.

Again, it should be noted that this statute of 1891 does not assume to confer upon the court power in equity to enjoin a person from committing mere criminal acts, not even such acts as unlawfully selling intoxicating liquors. Those are simple criminal acts to be dealt with by the courts under their criminal law procedure. However frequent and successive such acts, they are intermittent, and each is a separate hurt. A nuisance, however, is one continuous, unintermittent hurt as long as it exists. Under this statute the state seeks not to punish for past criminal acts, nor even to enjoin future distinct and separate criminal acts, but to stop the continuance of a present existing hurt. Granting that under our constitution the state cannot use proceedings in equity to enjoin mere criminal acts, we think the state may use them to cause the discontinuance, and perhaps removal, of a hurtful condition.

But we are reminded that these petitioners have not suffered any injury to their own persons or property by the acts complained of, and that this is not a civil action to afford them redress or protection in any of their own affairs. We are further reminded that this proceeding is against a common or public nuisance only, with no suggestion of any private injury done or threatened. It is argued that, while an individual may maintain a civil action at law or in equity to redress or prevent special damage done or threatened him by what is also a common nuisance or crime, the state cannot, for public protection only, maintain or authorize any other action or process than a criminal prosecution either by Indictment or information,— that "the law of the land" named in article 6 of the bill of rights necessarily implies such a restriction upon the powers of the government in such cases. To this we respond that, so far as at present advised, it appears to us that all the powers of a court, whether at common law or in chancery, may be called into action by the legislature in behalf of the whole people for the purpose of suppressing and preventing the continuance of common nuisances hurtful to the whole people. We know of no express prohibition in the constitution of this state or of the United States against the allowance of remedies in equity to effectuate such a purpose. Given the duty of the state to protect its people from nuisances hurtful to their health, morals, or peace, it would seem to follow that the state may use all the processes of law and all the powers of its courts to prevent the evil as well as to punish for it as a crime after its mischief has been suffered. Eilenbecker v. District Court, 134 U. S. 31, 40, 10 Sup. Ct. 424, 33 L. Ed. 801.

We do not find that the jurisdiction of courts of equity to restrain and enjoin common nuisances on public account only has ever been denied. The...