sons whose friends frequented the forbidden nuisance to their injury broke open the place and destroyed a quantity of the liquor. But the court held this to be an unlawful proceeding, for which they must answer in damages to the owner. So, in Rhode Island, under a similar enactment, the right to destroy the building by way of abating the nuisance was denied.2 Under the terms of the statutes in these states, the question might arise whether the nuisance consists of the liquor, or the building, or both-whether it is not the business. And certainly it is not abating a nuisance to destroy what is not the nuisance. The words in Iowa are different; namely, that the building in which the unlawful manufacture, sale or keeping for sale is carried on may be abated as a nuisance, and whosoever shall use a building for such purposes shall be deemed guilty of a nuisance, and may be prosecuted, etc., accordingly.3

38 N. W. R. 494; S. v. Cranford, 29 Kan. 529; S. v. Davis, 44 Kan. 60, 24 Pac. R. 73.]

1 Brown v. Perkins, 12 Gray, 89. The questionable feature of this case is, not probably that the court arrived at a wrong conclusion, but that is assigned a wholly untenable reason. It laid down the doctrine (see Crim. Law, I, § 1081) that the right to abate a public nuisance can be exercised only by those who are personally and specially injured by it. Certainly the authorities are not so, as the reader will see who consults them as cited in "Criminal Law." What is said sustaining this view in the cases referred to by the Massachusetts court is mere dictum. Moreover, in principle, if an evil-minded person has laid a dangerous obstruction upon a public highway, but at a place where I have never occasion to travel, then, at nightfall, just before I know the way will be thronged by persons moving along it in the dark, I go and remove the obstruction, and so prevent threatened injury to life or limb, it would be contrary to all just notions of law, and still more so to all just law,

to hold that, in recompense for my good deed, I must answer to the villain in a civil suit. The better and just doctrine, generally held by our courts, is that every man is in theory of law injured by a public wrong (Crim. Law, I, §§ 231, 235 et seq.), and, in like manner, is injured by a public nuisance of the abatable sort; therefore, where the right to abate the public nuisance exists, it may be exercised by any person. If, in legal theory, the element of individual interest is important, as probably it is not, still the interest need not be special to the particular individual, but the general interest which is participated in by every member of the community is sufficient. I am speaking now of nuisances which are admitted to be abatable. Not everything which is indictable under the name of nuisance is abatable; at least, not every such thing is so by every means which a person ignorant of law might suggest. [Carleton v. Rugg, 149 Mass. 550, 22 N. E. R. 55.] 2 S. v. Paul, 5 R. L. 185; S. v. Keeran, 5 R. I. 497.

3 S. v. Freeman, 27 Iowa, 333, 336; ante, § 1064, note.

Here is foundation for a different construction, whatever the true construction may be. This subject in its wider extent, and that of forfeitures, both with and without judicial proceedings, comprise a chapter in "Criminal Law."2

IV. THE KEEPING OPEN OF LIQUOR-SELLING PLACES AT FORBIDDEN TIMES.

§ 1070a. In general.- For the protection of particular interests, we have statutes forbidding the keeping open of liquorselling places at special times; as

Lord's day. The statutes on this subject' are in varying terms. They are to have a reasonable interpretation; as, for example, not forbidding boarding-house keepers to supply regular boarders with meals. And to keep open the doors of a store, and even suffer people to congregate in it, without traffic, is not to "keep open store," within these statutes; while, on the other hand, one whose doors are shut breaks the inhibition if he permits access through the back door and supplies the liquor. So the word "closed" requires that the sales be entirely stopped, and the conveniences for drinking be rendered practically inaccessible. Again,—

1 Bowen v. Hale, 4 Iowa, 430; Our House v. S., 4 Greene (Iowa), 172. 2 Crim. Law, I, § 816 et seq. 3 Crim. Law, II, § 961; [S. v. O'Connor (Minn.), 59 N. W. R. 999.]

8 Kurtz v. P., 33 Mich. 279. And see Harvey v. S., 65 Ga. 568. See also, on the subject of this section, Fant v. P., 45 Ill. 259; Coulbert v. Troke, 1 Q. B. D. 1; S. v. Crabtree, 27 Mo. 232; 4 S. v. Gregory, 47 Conn. 276; [Ed- [Harris v. P., 21 Colo. 95; Lucas v. wards v. S., 121 Ind. 450, 23 N. E. R. S., 92 Ga. 454, 17 S. E. R. 668; Hannon 277; Com. v. Everson, 140 Mass. 292, v. S., 92 Ga. 455, 17 S. E. R. 666; 2 N. E. R. 839; Com. v. Moore, 145 Thomasson v. S., 92 Ga. 456, 17 S. E. Mass. 244, 13 N. E. R. 893; P. v. Hob- R. 858; Klug v. S., 77 Ga. 734; Barton son, 48 Mich. 27, 11 N. W. R. 771; v. S., 99 Ind. 84; P. v. Cox, 70 Mich. Harris v. P., 1 Colo. App. 289, 28 Pac. 247, 38 N. W. R. 235; P. v. Beller, 73 R. 1133; Neill v. S., 92 Tenn. 719, 23 S. Mich. 640, 41 N. W. R. 827; P. v. W. R. 52; P. v. Koob (Mich.), 67 N. Hughes, 97 Mich. 543, 56 N. W. R. W. R. 320.] 942; P. v. James, 100 Mich. 522, 59 N. W. R. 236; P. v. Bowkers, 109 Mich. But see 360; P. v. Shattens, 116 Mich. 1; S. v. O'Connor (Minn.), 59 N. W. R. 999; P. v. Chase, 55 N. Y. S. 292; S. v. Herbel (Ohio St.), 43 N. E. R. 328; Wagonstern v. Com., 94 Va. 787, 26 S. E. R. 402; Neill v. S., 92 Tenn. 719, 23 S. W. R. 52.]

5 Weidman v. P., 7 Bradw. 38. 6 Snider v. S., 59 Ala. 64. Baldwin v. Chicago, 68 Ill. 418.

7 Kroer v. P., 78 Ill. 294; Blahut v. S., 34 Ark. 447. And see Crim. Law, II. § 963; [P. v. Minter, 59 Mich. 557, 26 N. W. R. 701; P. v. Crowley, 90 Mich. 366, 51 N. W. R. 517; Hannan v. D. C., 1 Wash. App. 265.]

§ 1070b. Election days.-The statutes against keeping open liquor-selling places on election days are in various terms. But they are not attended with difficulties demanding special expositions in this place.1

1 Ante, § 803; S. v. Cady, 47 Conn. 44; Haines v. S., 7 Tex. Ap. 30; English v. S., 7 Tex. Ap. 171; Hoskey v. S., 9 Tex. Ap. 202; [Quatter v. S., 120 Ind. 92, 22 N. E. R. 100; S. v. Hirsch, 125 Ind. 207, 24 N. E. R. 1062; Com. v. Murphy, 95 Ky. 28, 23 S. W. R. 655. Some cases are hereto cited having reference to holidays and the Mondays following when the holidays

707

fall on Sunday. Rose v. S. (Ga.), 33 S. E. R. 439; Com. v. Francis, 152 Mass. 508, 25 N. E. R. 836; P. v. Ackerman, 80 Mich. 588, 45 N. W. R. 367; P. v. Werderman, 115 Mich. 66, 74 N. W. R. 209, 39 L. R. A. 218; Schuck v. S., 50 Ohio St. 493, 34 N. E. R. 663; Jones v. S., 32 Tex. Cr. R. 533, 25 S. W. R. 124; Wear v. S., 35 Tex. Cr. R. 30, 26 S. W. R. 68.]

§ 1071. What for this chapter and how divided.- The unlicensed hawking and peddling of goods will here be considered in the following order: I. The law of the offense; II. The procedure.

I. THE LAW OF THE OFFENSE.

§ 1072. In England,- from an early date, statutes, more or less modified from time to time, have provided for the licensing of hawkers and peddlers, and made infringements of their provisions punishable; partly for the protection of the community against frauds to which itinerant dealers in commodities are specially tempted, and partly for revenue. At the time of this writing, the latest enactment, revising and consolidating what has gone before, is 34 and 35 Vict., ch. 96; supplemented by 44 and 45 Vict., ch. 45, and 44 and 45 Vict., ch. 67. And

§ 1073. With us — a like fact prevails. The statutes differ in the respective states, and more or less at different periods in the same state. And

By-laws.- Municipal by-laws may, within the limitations of power explained in an earlier chapter, and they sometimes do, forbid, except by license for which they provide, hawking and peddling in their respective localities.

1 Jacob, Law Dict., tit. Hawkers; Burn, Just., tit. Hawkers and Ped dlers. And see Stats. 25 Hen. 8, ch. 9; 33 Hen. 8, ch. 4; 8 & 9 Will. 3, ch. 25; 22 & 23 Vict., ch. 36; 33 & 34 Vict., ch. 72; and multitudes of oth

ers.

Ante, § 18 et seq.; [City of St. Paul v. Stoltz, 33 Minn. 233, 22 N. W. R. 634.]

4 P. v. Mulholland, 82 N. Y. 324, [37 Am. R. 568;] Chicago v. Bartee, 100 Ill. 57; Com. v. Elliott, 121 Mass. 367; Huntington v. Cheesbro, 57 Ind. 74;

2 [Appeal of Brinton, 132 Pa. St. 69, Thomas v. Hot Springs, 34 Ark. 553, 18 Atl. R. 1092.]

[36 Am. R. 24;] Sledd u Com., 19

§ 1074. Terms defined. Aside from any statutory definings, the words "hawker" and "peddler" are almost equivalents in meaning: either denotes an itinerant vendor of goods which he carries with him, and perhaps it should be added that the vending must be by retail. Formerly, and doubtless still, outcry was specially prominent in the idea of hawking, and the putting off of petty articles in that of peddling. In England, and some of our states, and in the legislation of congress,3 there are statutory definings of these terms; and, wherever they exist, the meanings so ascertained prevail over those of the unwritten law.

§ 1075. Single act - Business.- Hawking or peddling is a business, to the extent that it is not constituted by a single offering or selling, or even by occasional sales, made outside of one's ordinary employment.*

§ 1076. Other business - Supplying orders-Itinerancy. "The leading primary idea of a hawker and peddler is,” said Shaw, C. J., "that of an itinerant or traveling trader, who carries goods about in order to sell them, and who actually sells them to purchasers, in contradistinction to a trader who has goods for sale and sells them in a fixed place of business." Therefore the court deemed that one would commit this offense, under the statute then in contemplation, though his sales were in connection with a non-prohibited employment, and at the

Grat. 813; [Bradley v. City of Rochester, 7 N. Y. S. 237; City of Kansas v. Collins, 34 Kan. 434, 8 Pac. R. 865.] 1 And see and compare Higgins v. Rinker, 47 Tex. 393, 402; S. v. Wilson, 2 Lea, 28; Com. v. Ober, 12 Cush. 493, 495; Com. v. Farnum, 114 Mass. 267; Morrill v. S., 38 Wis. 428, [20 Am. R. 12;] Burbank & McDuffee, 65 Me. 135; Com. v. Cusick, 120 Mass. 183; Chicago v. Bartee, 100 Ill. 57; [Com. v. Reid (Mass.), 56 N. E. R. 617; S. v. Foster (R. L.), 46 Atl. R. 833; P. v. Baker, 115 Mich. 179, 73 N. W. R. 115; Graffty v. Rushville, 107 Ind. 502, 57 Am. R. 128; City of Carrollton v. Bazette, 159 Ill. 284, 42 N. E. R. 837, 31 L. R. A. 522; Brownback v. Borough of North Wales, 194 Pa. St. 609, 45 Atl. R. 660; Hall v. S., 39 Fla. 637, 23

S. R. 119; 8. v. Miller, 93 N. C. 511, 53
Am. R. 469.]

2 By 34 & 35 Vict., ch. 96, § 3.

3 See, for example, Stat. 1864, ch. 173, § 79, cl. 32, 13 U. S. Stats. at Large, 255; [Town of Trenton v. Clayton, 50 Mo. Ap. 535.]

4 Rex v. Little, 1 Bur. 609, 613; Rex v. Buckle, 4 East, 346; Com. v. Farnum, 114 Mass. 267, 271; Alcott v. S., 8 Black f. 6; S. v. Belcher, 1 McMul. 40. And see Merriam v. Langdon, 10 Conn. 460: Com. v. Willis, 14 S. & R. 398; Colson v. S., 7 Blackf. 590; Page v. S., 6 Mo. 205; [P. v. Jarvis, 46 N. Y. S. 596, 19 Ap. Div. 466; Roy v. Schuff, 51 La. An. 86, 24 S. R. 788; Ezell v. Thrasher, 76 Ga. 817; Keller v. S. (Ala.), 26 S. R. 323.]