GATES, P. J.
Application for an order fixing the amount of a supersedeas undertaking on appeal to this court from the judgment of the circuit court of Codington county, S. D.
This is an action to abate a public nuisance. The trial court found that the defendant Denis, as lessee of the premises in the city of Watertown known as' the West or Arcade Hotel, was conducting said premises as a house of prostitution, assignation, and for the illegal sale of intoxicating liquors, and that such unlawful business was the principal business of the so-called hotel. The judgment provided as follows:
“It is ordered, adjudged, and decreed as against the defendant E. L. Denis, his agents, servants, employees, attorneys, and
[412] all persons claiming under him, or acting under his direction or authority, be, and they are hereby, -perpetually enjoined and -restrained and prohibited from conducting any business or performing any acts in or about the premises [-describing them-] ; that -the said defendant E. L. D-enis, bis agents, servants and employes, attorneys, and all persons -claiming under him--acting under his direction or authority, be perpetually prohibited, restrained, and enjoined from o-ccupjbng, frequenting, using, going upon, operating', let-tin-g, sub-letting, -or otherwise transacting any business in or upon s-ai-d premises known as the Arcade Hotel, also known a-s the West Hotel, in the -city of Watertown, S. D.”
It is contended 'by applicant that there is no warrant in law for -the judgment as rendered; that it -could lawfully only restrain defendant from continuing the unlawful acts.
The state contends that Denis pays no- attention to temporary injunctions, and that, if permission is granted him, pending appeal, to transact lawful business in the hotel, he will continue to- transact such unlawful 'business. Indeed, the -trial court found •that from- July to November, 19x6, the defendant- Denis continued su-ch unlawful- business in the f-a-ce of a temporary injunction. It would seem, however, that -contempt proceedings ought to have been a sufficient remedy t-o prevent -the violation of the temporary injunction.
[1,2] If t-he judgment simply extended to the prevention of transacting -unlawful business, the granting of a stay upon appeal would not be considered for a moment by this court, in view of the finding's of1 fact and conclusions of law of the trial court, but the question as to the validity -of the judgment wherein it prohibits defendant from- engaging in a" lawful business on the premises is a serious one. The assent-ion of power in a court to pass upon the qualifications of a--hotel keeper is certainly novel. Moreover, -the trial -court declared) that it w-as not proceeding under -the provisions of -chapter 123 of -the Daws of 1913. Without deciding that 'question we are inclined to grant a partial stay u-pon appeal.
Upon the filing of an undertakiijg in the usual form in the sum of $3,000, -with sureties to -be -approved by -the judge of the trial court, and with the further -provision therein that the undertaking shall -cover the payment of such sum or sums, if, any, as
[413] may ‘be imposed in contempt proceedings against the defendant Denis, his agents, servants, or employes, for the continuance, after -the giving of the undertaking, of any unlawful business described in the findings of fact, the trial court will enter an order directing that the execution of the judgment be stayed upon appeal so far, and so far only, as it prevents the defendant Denis, his agents, servants, employes, etc., from transacting and engaging in lawful business upon t'he premises. The defendant Denis will be given ten days after the service of this order upon his attorney within which to obtain, file, and secure the approval of such undertaking, after which period the effect of the restraining order issued by this court shall cease.
Other matters urged by applicant relating to practice and procedure are not deemed matters properly before us for consideration ujpon this application.
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