McLane v. Bonn

• Decision Date: 08 December 1886
• Citation: 30 N.W. 478,70 Iowa 752
• Parties: MCLANE v. BONN. THRASHER ET AL. v. BONN ET AL.; MCLANE ET AL. v. LEICHT
• Court: Iowa Supreme Court

30 N.W. 478

70 Iowa 752

MCLANE v. BONN. THRASHER ET AL. v. BONN ET AL.; MCLANE ET AL. v. LEICHT

Supreme Court of Iowa, Des Moines

December 8, 1886

Appeals from Des Moines District Court.

THESE causes involve the same questions, and may be disposed of in a single opinion. They are actions for the abatement of nuisances which, it is charged in the petitions, were kept and maintained by defendants, and to enjoin defendants from maintaining the same. Temporary injunctions were issued restraining defendants, during the pendency of the actions from maintaining the nuisances, which on the final hearing were made perpetual. The judgments also directed the seizure and destruction of the intoxicating liquors found in the buildings, and the vessels containing the same; (the proceedings being under the statute for the suppression of intemperance;) also the seizure and sale of the furniture and fixtures in the buildings, and the application of the proceeds of such sale, or so much thereof as should be necessary for that purpose, for the satisfaction of the costs of the actions and the abatement of the nuisances. They also provided for the closing of the buildings for the period of one year; and in each case an attorney's fee was taxed against the defendant as part of the costs of the action. Defendant appeals.

AFFIRMED.

P. Henry Smyth & Son, for appellants.

Newman & Blake, for appellees.

OPINION

REED, J.

I.

The actions were instituted on the twentieth of February, 1886, and the final judgments were entered on the twenty-ninth of the following June. They were commenced under section 12, ch. 143, Acts of the Twentieth General Assembly, which provides that "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." That statute contains no express provisions as to the manner in which the nuisance shall be abated after the fact of its existence is established. But, during the pendency of the actions, chapter 66, Laws of the Twenty-first General Assembly, went into effect, the fifth section of which provides that, "if the existence of the nuisance be established, * * * it shall be abated, under the judgment and order of the court, by seizing and destroying the liquor therein, and removing from the building * * * all fixtures, furniture, vessels, and all movable property used in or about the premises, in carrying on the unlawful business, and selling the same in a manner provided for the sale of chattels under execution, and by securely closing the said building as against the use or occupation of the same for saloon purposes, and keeping the same securely closed for the period of one year." It is provided by the sixth section of the act that the proceeds of the sale of the personal property shall be applied in satisfaction of any fine or costs adjudged against the keeper of the nuisance; and the fourth section provides for the taxing of the costs, including an attorney's fee, against him. It was not proven that any of the defendants had kept or maintained a nuisance after the preliminary injunctions were issued, or after that statute went into effect.

Counsel for appellants contend that the provisions of the act which prescribe the manner in which the nuisance shall be abated are penal in their nature; that is, that the destruction of the liquors found in the building, the seizure and appropriation of the movable property which was used in carrying on the business, and the closing of the building all pertain to and constitute part of the penalty which is imposed as punishment for the...