McLane v. Bonn

Peed, J. -I. The actions were instituted on the twentieth of February, 1886, and the final judgments were entered on i. intoxicat-ins liquors: abatement of nuisances: laws 0M886: topending of tíítioñauty.61’ the twenty-ninth of the following June. They ■' 0 were commenced under section 12, ch. 143, Acts of 5 ’ the Twentieth General Assembly, which provides that “any citizen of the county where such nui-sauce exists, or is kept or maintained, may maintain an action in equity to abate and perpetually enjoin the same.” That statute contains no express provis [754] ions 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 offense of keeping and maintaining the nuisance, and hence they contend that the provisions of the statute can have no application to offenses committed before its enactment. We think tnere is a ready and satisfactory answer to this position. These are civil actions for the abatement of the nuisances, [755] and for the enjoining of tbe defendants from maintaining them in the future. They are prosecuted for the enforcement of the civil remedy created by the statute, and not for the punishment of the defendants for the offense of keeping and maintaining a nuisance. The provisions of the statute in question create no new remedies. They relate to the remedy created by existing statutes. They simply define the extent of that remedy, and provide for its enforcement. Under the former statute (see. 12, ch. 143, Acts of Twentieth General Assembly) the courts were empowered, in this character of actions, to provide for the abatement of the nuisance; but, as stated above, the manner in which the abatement might be effected was not prescribed. The building or place which is the subject of the action is rendered a nuisance by the unlawful business' which is carried on in it; and the power to abate the nuisance necessarily includes the power to break up and destroy the business. By the former statute the court was empowered to provide in its judgment for the doing of whatever might be deemed necessary for the complete suppression of the unlawful business within the building or place. The statute in question simply defines the means which shall be used for the accomplishment of that object. That it is within the powers of the legislature to make such provisions applicable to cases which were pending at the time of the enactment of the statute we think there ean be no doubt. II. The defendant, in each of the cases, pleaded in his answer that, before the enactment of chapter 143 of the Acts 2. pleading: mativeauegal proved. °i* the Twentieth General Assembly, he had fitted up the building and place referred to in the petition as a place tor the sale ot liquors, the sale of which was not prohibited by the then existing statutes of the state; that, in so fitting up said place, he had expended a large sum of money; and that the place was adapted only to the use for which he had prepared.it, and that for that use it was of great value; and, if he should be [756] enjoined from using it for that purpose, he would sustain great loss and damage, and his property would be destroyed and taken from him without compensation; and it is alleged that for these reasons the statute is in conflict with the fourteenth amendment to the constitution of the United States, and therefore void. The claim that the ■ statute is void oh this ground has been urged by counsel in argument in this court. We deem it sufficient to say, however, that the question does not properly arise on the record before us. The averments of fact in the answer by which the question was sought to be raised stood denied by operation of law. Under our system of pleading, no reply was necessary in order to form an issue upon them. Under the pleadings, the burden was on the defendants to prove the facts upon which this defense depended; but they did not prove the allegations of the answer, or make any effort to prove them. We cannot, on this state of the record, consider any question which depends upon the truth of the affirmative allegations of the answer. III. It has been contended, also, that the statute is in conflict with the constitution of this state. In answer to this 3. intoxicatING liquors: prohibitory statutes: con-stitutionaiity. position we deem it necessary only to say that the , , ' , , power of the legislature to enact laws for the . , suppression of the general trame m intoxicating liquors within the state has been recognized and affirmed by this court for more than twenty-five years. It has uniformly been held that the state, in the exercise of its police power, might regulate the traffic, or prohibit it entirely; and, when the power to prohibit the traffic is recognized, the power to enact whatever laws may be necessary to make the prohibition effectual follows necessarily. The judgment in each case will be AFFIRMED.