Littleton v. Fritz

• Decision Date: 17 March 1885
• Citation: 22 N.W. 641,65 Iowa 488
• Parties: LITTLETON v. FRITZ.
• Court: Iowa Supreme Court

65 Iowa 488

22 N.W. 641

LITTLETON

v.FRITZ.

Supreme Court of Iowa.

Filed March 17, 1885.

Appeal from Polk circuit court.

This is an action in equity, by which the plaintiff, a citizen of Polk county, seeks to enjoin and abate a nuisance, which it is alleged the defendant keeps and maintains in a certain building in the city of Des Moines, by selling intoxicating liquors therein contrary to law. A temporary injunction was prayed, and notice of the application therefor was served on the defendant, who appeared, and the motion for the injunction was sustained, and the writ was issued and served upon defendant. This appeal was taken from the order granting the temporary injunction.Lehman & Park, W. S. Sickmon, and Bills & Block, for appellant.

Baylies & Baylies, Smith McPherson, Atty Gen., Jed. Lake, James O. Crosby, S. P. Adams, Reikel & Bull, and Remley & Remley, for appellee.

ROTHROCK, J.

1. The plaintiff does not aver in his petition that he has sustained, or will sustain, any damage or injury by the maintenance of the alleged nuisance, for which he can be compensated in a money judgment. He claims the right to maintain the action because he is a citizen of Polk county, and because the keeping and maintaining the nuisance in the county is a great damage and injury to the property, peace, and safety of the plaintiff and other citizens of said county.

The case, therefore, turns upon the question whether any citizen of the county where a nuisance of this character is kept, may maintain an action in equity to enjoin and abate it, and whether the court has the power under the law to order a temporary injunction in such cases. It is not disputed that the building or erection of whatever kind in or at which intoxicating liquors are unlawfully manufactured or sold is a nuisance. It was provided in section 926 of the Code of 1851 that “the places commonly known as ‘dramshops' are hereby prohibited, and declared public nuisances. * * *” The law with reference to the sale of intoxicating liquors has undergone many changes since 1851; but the unlawful traffic has always since that time been declared by legislative enactment to be a nuisance. The provision above cited has never been repealed. That the legislature has ample power to prohibit the manufacture and sale of intoxicating liquors has been settled law in this state for more than 30 years. Legislation upon that subject has been uniformly upheld and approved by this court since the decision in the case of Our House v. State, 4 Greene, 172, and the case of Santo v. State, 2 Iowa, 165. Thousands of persons have been prosecuted by indictment, fined, and imprisoned in this state for the maintenance of nuisances in the keeping of saloons.

By chapter 143 of the Laws of the Twentieth General Assembly, the statute upon this subject was amended. It was made more sweeping in its provisions by prohibiting the sale of all kinds of intoxicating liquors, under heavy penalties, excepting sales for certain purposes by permit from the board of supervisors of the county. After providing for punishment for specific sales, the act, in its twelfth section, provides that for violation of the law by unlawful sales, “the building or erection of whatever kind, or the ground itself, in or upon which such unlawful manufacture or sale, or keeping with intent to sell, use, or give away, of any intoxicating liquor is carried on or continued or exists, and the furniture, fixtures, vessels, and contents, is hereby declared a nuisance, and shall be abated as hereinafter provided; and whoever shall erect or establish or continue or use any building or erection for any of the purposes prohibited in said sections (the section of the law prohibiting sales) shall be deemed guilty of a nuisance, and may be prosecuted and punished accordingly, and upon conviction shall pay a fine of not exceeding $1,000, and costs of prosecution. * * * Any citizen of the county where such nuisance exists or is kept or maintained, may maintain an action in equity to abate and perpetually enjoin the same, and any person violating the terms of any injunction granted in such proceedings shall be punished as for contempt by a fine of not less than $500, nor more than $1,000, or by imprisonment in the county jail not more than six months, or by both such fine and imprisonment, in the discretion of the court.”

This statute plainly authorizes any citizen of the county to maintain the action, and there can be no denial of the right of action, unless it be held that the legislature had no constitutional power to enact the law. Counsel for appellant contend that the statute is repugnant to sections 9, 10, 11, and 12 of article 1 of the constitution. These sections provide that “the right of trial by jury shall remain inviolate,” and that in all criminal prosecutions, involving life or liberty, the accused shall have a right to a trial by jury, upon an indictment by a grand jury.

The question presented by counsel in argument may be stated in this general form: Is the statute under consideration an attempt upon the part of the law-making power to deprive the citizen of the constitutional right to be tried by a jury? It is important at the outset to inquire, in what cases was the right of trial by jury inviolate when the constitution was adopted? for it will be observed that the provision is that the right “shall remain inviolate.” This provision, or its equivalent, is common to the constitutions of many states of the Union, and it has been held that it secures the right of trial by jury in all cases in the trial of which a jury was necessary according to the principles of the common law. Isom v. Mississippi Cent. R. Co. 36 Miss. 300. In Plimpton v. Town of Somerset, 33 Vt. 283, it is said that “the general rule of construction in reference to this provision of the constitution is that any act which destroys or materially impairs the right of trial by jury, according to the course of the common law in cases proper for the cognizance of a jury, is unconstitutional.”

The jurisdiction of courts of equity to enjoin and abate nuisances is of very ancient origin. In 2 Story, Eq. 921, this language is employed: “In regard to public nuisances, the jurisdiction of courts of equity seems to be of very ancient date, and has been directly traced back to the reign of Queen Elizabeth. The jurisdiction is applicable not only to public nuisances strictly so called, but also to purprestures upon public rights and property.” This general rule is not, and cannot be, disputed. Courts of equity in nearly all the states of the Union entertain jurisdiction to restrain and abate nuisances, either at the suit of a public prosecutor, or at the instance of a private individual who shows that he sustains some special injury by the establishment or existence of the nuisance.

Such a case being of equitable cognizance, neither party could, at the time of the adoption of the constitution, demand a jury trial as matter of right. There was no statute law or constitutional provision then in force which gave an absolute right to a trial by jury in an equity case. State v. Orwig, 25 Iowa, 280;Clough v. Seay, 49 Iowa, 111. All actions in equity were required to be tried by a chancellor. It is true, the chancellor was authorized, by the manner of procedure in courts of equity, to make up issues of fact, called issues out of chancery, and refer them to a jury to enlighten his conscience; but the parties had no right to demand a trial of any issue in an equity case by a jury. But it is insisted by counsel for appellant that courts of equity did not have jurisdiction at the time of the adoption of the constitution to abate any nuisance, except in cases where some property right was affected by the maintenance of the nuisance; and it is contended that the enlargement of the jurisdiction to that class of cases in which property rights are not involved, is an abridgment of the right of trial by jury. The jurisdiction of the cause of action “is the power over the subject-matter given by the laws of the sovereignty in which the tribunal exists.” 1 Bouv. Law Dict. 769.

Let it be conceded that courts of equity, before the adoption of the constitution, declined to entertain actions of injunction to restrain and abate nuisances in cases where no property rights were involved. The legislative history of this state, and the jurisdiction entertained by its courts, do not warrant the conclusion that there is no legislative discretion in regard to what controversies shall be of equitable cognizance. Since the adoption of the constitution a jury has been allowed in actions for divorce, and this right has been taken away. So in case of the foreclosure of mortgages and mechanics' liens. We are not, then, required to examine the laws in force at the time the constitution was adopted, and hold that in every case which was then triable by a jury, the right to such...