Village of American Falls v. West

• Decision Date: 18 July 1914
• Citation: 142 P. 42,26 Idaho 301
• Parties: THE VILLAGE OF AMERICAN FALLS, a Municipal Corporation, Respondent, v. W. A. WEST, Appellant
• Court: Idaho Supreme Court

142 P. 42

26 Idaho 301

THE VILLAGE OF AMERICAN FALLS, a Municipal Corporation, Respondent, v. W. A. WEST, Appellant

Supreme Court of Idaho

July 18, 1914

NUISANCE-ACTION TO ABATE NUISANCE-MUNICIPAL CORPORATION-PARTY PLAINTIFF-CREATION OF NEW COUNTIES-NEW COUNTIES-PROHIBITION TERRITORY-LICENSED SALOON LAWFUL BUSINESS-LICENSED SALOON MAY NOT BE ABATED AS A NUISANCE.

1. A village is a proper party plaintiff to bring an action in the district court to obtain the abatement of a public nuisance causing special injury to the rights, morals or interests of such village, even though such nuisance be outside the village boundaries.

2. Where a new county is created from territory which was formerly comprised in "dry" counties and also territory that was formerly part of a "wet" county and the legislature makes no pro- vision as to whether the new county shall be a "wet" or "dry" county until a local option election is held in such county, held, that the whole of the new county so created becomes a "wet" county and subject to the license system until such time as the voters of the county shall vote the county "dry" under the provisions of the local option statute.

3. A saloon regularly licensed to sell intoxicating liquor within wet territory is thus expressly authorized by law to sell such liquor. And even though the results of such business be disastrous and deplorable, and are the direct cause of what would amount to a public nuisance had such license not been granted, the running of such saloon in the usual and regular manner authorized by law under such license cannot legally be abated as a nuisance, because sec. 3659, Rev. Codes, provides that "Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance."

4. If the owner of a saloon takes an unfair advantage of his opportunity to handle liquor, and goes beyond his rights granted under his license, to do things that amount to a public nuisance, such things should be abated, even though they are done in connection with a licensed saloon or are an effect thereof. The proper conduct of a lawful business cannot be enjoined, but its abuses and excesses may be prevented.

APPEAL from the District Court of the Fifth Judicial District for the County of Power. Hon. Alfred Budge, Judge.

Action to abate a nuisance. Judgment for plaintiff. Defendant appeals. Reversed.

Judgment of the district court reversed and case remanded with directions.

P. E Cavaney and Baird & Davis, for Appellant.

Within its territorial limits the right of a municipality to maintain the action depends upon the same condition as the right of the individual or private corporation; it must have suffered some special injury. (Morris Canal & C. Co. v. Jersey City, 12 N.J. Eq. 252, 547.)

Even in cases where municipalities have been, by their charters, duly authorized to pass ordinances to remove and abate any nuisance injurious to the public health, it is recognized that such provision delegates authority to abate a nuisance only within its corporate limits. (Village of Pine City v. Munch, 42 Minn. 342, 44 N.W. 197, 6 L. R. A. 763.)

If Blaine county was wet prior to the formation of Power county, that portion of Power county taken from Blaine county would remain wet as part of Power county until the individuals of Power county, as a county, should hold the necessary election, as provided by the laws of the state for determining the question as to whether Power county should be wet or dry. (Woollen & Thornton, Intox. Liquors, sec. 548, note 25; Prestwood v. State, 88 Ala. 235, 7 So. 259; Oxley v. Allen, 49 Tex. Civ. App. 90, 107 S.W. 945; Ex parte Pollard, 51 Tex.Crim.App. 488, 103 S.W. 878; In re Cunningham, 21 Can. Prac. 459; Ex parte McCleaver, 21 N. B. 315.)

"If a local option county be divided and an entirely new one created, local option continues in force in the new county." (Woollen & Thornton, sec. 548, note 25; Parker v. State, 126 Ga. 443, 55 S.E. 329; Moore v. State, 126 Ga. 414, 55 S.E. 327; Amerker v. Taylor, 81 S.C. 163, 62 S.E. 7.)

"Where the statute designates who may maintain a proceeding to abate a liquor nuisance it can only be maintained by the person designated." (Joyce on Intoxicating Liquors, sec. 624; Applegate v. Winebrenner, 66 Iowa 67, 23 N.W. 267; Thornton & Woollen, Intoxicating Liquors, sec. 585.)

Equity will not enjoin a criminal nuisance merely to subserve the public welfare. There must be a statute declaring the criminal act to be a nuisance per se. (State v. Vaughan, 81 Ark. 117, 118 Am. St. 29, 98 S.W. 685, 11 Ann. Cas. 277, 7 L. R. A., N. S., 899; Marshall v. Board of Managers, 201 Ill. 9, 66 N.E. 314; Indian Land & Trust Co. v. Shoenfelt, 135 F. 484, 68 C. C. A. 196; Stevens v. De La Vaulx, 166 Mo. 20, 65 S.W. 1003; Hedges v. Dixon Co., 150 U.S. 182, 14 S.Ct. 71, 37 L.Ed. 1044.)

If the court should find that a nuisance exists in this case, only a qualified decree could be entered prohibiting the particular acts complained of and not to close up the entire business. (Lorenzi v. Star Market Co., 19 Idaho 674, 115 P. 490, 35 L. R. A., N. S., 1142.)

The lower court in the case at bar made a decree absolutely prohibiting the selling of intoxicating liquors at the said Doc West saloon. The court cannot restrain the business carried on on said premises in a lawful way. (Fresno v. Fresno Canal etc. Co., 98 Cal. 183, 32 P. 944, 37 Cent. Dig. "Nuisance," 199; Georgia R. R. & B. Co. v. Maddox, 116 Ga. 54, 42 S.E. 315; Green v. Lake, 54 Miss. 540, 28 Am. Rep. 378; Cleveland v. Citizens' Gas Co., 20 N.J. Eq. 201; Chamberlain v. Douglas, 24 A.D. 582, 48 N.Y.S. 710; Weaver v. Kuchler, 17 Okla. 189, 87 P. 600; Wilcox v. Henry, 35 Wash. 591, 77 P. 1055; Minke v. Hopeman, 87 Ill. 450, 29 Am. Rep. 63; Richards v. Holt, 61 Iowa 529, 16 N.W. 595; Sawyer v. State Board of Health, 125 Mass. 182; Dec. Dig. "Nuisance," secs. 35-84; 29 Cyc. 1249; Haggart v. Stehlin, 137 Ind. 43, 35 N.E. 997, 22 L. R. A. 577.)

Bissell & Baum, for Respondent.

"Where the complaint alleges the corporate capacity of the plaintiff and that by some threatened act defendant will create a nuisance or is about to commit some act that will endanger the health of the inhabitants of the city or village or that it will result in the damage to the property of the city or village or may be the means of causes of action for damage against the city or village, equity will grant relief." (Village of sandpoint v. Doyle, 11 Idaho 642, 83 P. 598, 4 L. R. A., N. S., 810.)

"A municipal corporation, as such, has a right to invoke the aid of equity to prevent a threatened injury to its corporate property or to the lives, health and comfort of its citizens, even though the source of such threatened injury is outside of the corporate limits of the municipality." (Baltimore v. Warren Mfg. Co., 59 Md. 96; Indianapolis Water Co. v. American Straw Board Co., 57 F. 1000; McCallum v. Germantown Water Co., 54 Pa. 40, 93 Am. Dec. 656.)

DAVIS, District Judge. SULLIVAN, J., AILSHIE, C. J., Dissenting in Part and Concurring in part.

OPINION

DAVIS, District Judge.

This is an action wherein the village of American Falls prays for an injunction to prevent the running of a saloon by the defendant outside the limits of such town but near-by and easily accessible therefrom, on the ground that said saloon is within what should be "dry" territory, and, although licensed, that it has no legal right to exist, and that it results in a public nuisance injuriously affecting the decency, good name and reputation of the inhabitants of American Falls, and has become a menace to the peace, health, safety and morals of the citizens thereof.

The district court found for the plaintiff and issued the injunction sought, from which judgment the defendant appeals.

The most serious questions raised are as to the sufficiency of the complaint; the right of a village to sue to abate a nuisance outside of its limits; as to the jurisdiction of the court in such cases; whether the territory where the saloon was located was wet or dry; and whether or not the saloon as conducted resulted in a public nuisance causing special injury to plaintiff.

A village is a corporate entity with the right to sue in a proper court, if necessary to protect or secure its rights. (Sec. 2236, Rev. Codes.) Such a village is a municipal corporation created to assist in the civil government of its people and the territory within its limits. It has the power and duty of preserving the health and protecting the personal rights, morals and property of its inhabitants, and as an effective means of doing so such village may bring an action in the district court in order to secure the removal and abatement of a public nuisance causing special injury to the rights, morals or interests of such village. If the people within a village, in their aggregate capacity, are specially injured by a public nuisance, such village is directly interested in having such nuisance abated. And while a village itself might abate a nuisance within its limits, in order to abate a public nuisance outside its boundaries it is probably necessary, and undoubtedly proper, for it to apply to a court of equity for aid in protecting it from such harmful influence. (1 Dillon, Mun. Corp., par. 379; Village of Sandpoint v. Doyle, 11 Idaho 642, 83 P. 598, 4 L. R. A., N. S., 810; Village of Pine City v. Munch, 42 Minn. 342, 44 N.W. 197, 6 L. R. A. 763; Mayor etc. of Baltimore v. Warren Mfg. Co., 59 Md. 96; Indianapolis Water Co. v. American Strawboard Co., 57 F. 1000; McCallum v. Germantown Water Co., 54 Pa. 40, 93 Am. Dec. 656.)

The complaint states a cause of action, and the district court had jurisdiction to try the case.

The next question is: Was the saloon attacked as a...