that juries did not convict, the legislature sought to repress the nuisances by extending the equity powers of the courts so that single judges sitting in equity could do what it was conceived juries ought to have done.

In 1882, the attempt was made in Kansas, upon information by the county attorney of Shawnee county in equity, to enjoin an unlicensed liquor saloon as a public nuisance. The court found that the saloon was unlicensed, was used for violation of the law by the sale of intoxicating liquor, and held that

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every place where a public statute is openly, publicly, repeatedly, continuously, persistently, and intentionally violated is a public nuisance.”

Also that independent of any statute such a saloon ought to be considered as a public nuisance, but it held that such a nuisance could not be restrained by injunction in equity. In the opinion the court said

"It would seem that one of the main objects of the prosecution in instituting this proceeding in a court of equity in contradistinction to a court of law is to obtain a judicial determination enunciating the doctrine that an adequate remedy exists, and will be exercised in equity and by injunction, for the suppression of all illegal traffic in intoxicating liquors independent of jury and of the jury system."

But the court said that there was statutory remedy by criminal process to abate the nuisance, and therefore there could be no jurisdiction in equity, and intimated that even if there were jurisdiction in equity a court of equity would probably exercise its power to submit the questions of fact as to the existence of a nuisance to a jury.1

In 1881 and 1885 Kansas enacted statutes known as the "Kansas Injunction Acts" which provided that

"All places where intoxicating liquors are manufactured, sold, bartered, or given away, or kept for sale, barter, or delivery in

1 State v. Crawford, 28 Kansas 726, 741.

violation of this act are hereby declared to be common nui

First. That such a nuisance might be abated by judgment of court, and destruction by the sheriff of the liquors and other property used in keeping the nuisance.

Second. That the owner or keeper of the place might be punished upon conviction by a fine of not less than one hundred nor more than five hundred dollars, and by imprisonment for not less than thirty days nor more than ninety days.

Third. That a suit in equity might be maintained in the name of the state to abate the nuisance, in which suit an injunction should be issued at the commencement of the action without bond. And that every person violating the injunction

"shall be punished as for contempt by a fine of not less than one hundred nor more than five hundred dollars, or by imprisonment not less than thirty days nor more than six months, or by both fine and imprisonment in the discretion of the court.”1

Upon a suit in equity under this law the United States circuit court, to which it was removed, dismissed the bill.2

Upon appeal by the state the Supreme Court reversed the decision and held the law valid, saying, that a jury trial was not required in equity cases to abate public nuisances.3

And thus by the simple expedient of a statutory declaration that the thing, which the same statute made a crime punishable upon conviction upon a jury trial, was a nuisance to be enjoined and punished in equity after conviction by a single judge, the right of jury trial was absolutely taken away.

And everybody knew that the law was intended to do this because juries would not convict in such cases.

1 Kansas Laws, 1881, Ch.

2 Sec. 13; Kansas Laws, 1885, Ch. Sec.

3 Kansas v. Ziebold, 123 U. S. 654.

In 1887 a statute was passed in New Hampshire "to authorize the suppression of common nuisances by courts of equity," which provided that

"Any building, place, or tenement resorted to for prostitution, lewdness, or illegal gaming, or used for the illegal sale or keeping of spirituous or malted liquors, wine, or cider, is declared to be a common nuisance."

And the act gave the supreme court jurisdiction in equity upon petition by the state or petition of not less than twenty legal voters of the town or city in which the nuisance was alleged to exist, to enjoin the same, and issue an injunction for that purpose.1

This statute left the punishment for contempt in violating any injunction issued under it to the discretion of the court, as in other equity cases. It was undoubtedly enacted for the same reason as the Kansas statute, that is, to punish upon the judgment of the court in proceedings in equity that which could not be punished upon the verdict of jurors upon indictment.

But upon a petition by voters under the act the court held that the statute was not unconstitutional, as taking away a trial by jury, because such a trial was not required in proceedings in equity to abate a public nuisance.2

In 1884, the state of Iowa passed a substantially similar act, providing first, for punishment by fine not exceeding one thousand dollars, and second, for an action in equity by any citizen in the county in which the nuisance existed to abate and enjoin the same, and authorizing the court to punish the violation of such an injunction by fine of not less than five hundred or more than one thousand dollars, or by imprisonment for not more than six months, or by fine and imprisonment.

Upon a petition under this act a county court issued an injunction, and punished the violation of it by a fine of five

1N. H. Laws, 1887, Ch. 77.

2 State v. Saunders, 66 N. H. 39.

hundred dollars and imprisonment for three months. The supreme court of the state sustained the act, and held that this act did not deprive the defendant of jury trial contrary to the constitution, because the proceedings were in equity to abate a public nuisance.1

On error, the Supreme Court of the United States sustained the statute, because the proceeding was in equity, in which there was no constitutional right to a jury trial, and said that

"It seems to be quite as wise to use the processes of the law and the powers of the court to prevent the evil as to punish the offence as a crime after it has been committed."2

In 1887, a substantially similar statute was enacted in Massachusetts, to authorize the suppression of common nuisances.3

Upon a suit in equity by private persons under this statute the supreme court of that state held that the act did not deprive the defendants of jury trial contrary to the constitution, but this was only by a majority of four judges against the dissent of three, whose views were stated in an elaborate dissenting opinion by Field, C. J.4

The constitutionality of these statutes may perhaps be considered as established beyond further question. But if these statutes are valid, it is difficult, as Chief Justice Field said, to see why the legislature cannot authorize a court

"to enjoin any person from doing any illegal or criminal act anywhere within the state, and to try without a jury any person so enjoined on a charge of having violated the injunction, and to punish him by fine and imprisonment without limit, if the court find him guilty.”

It probably would not be claimed, however, that this could be done under the constitution of

169 Iowa 240.

2134 U. S. 31.

3 Mass. Laws, 1887, Ch. 380.

any state.

4 Carleton v. Rugg, 149 Mass. 530, 538.

The evil of these statutes is not that they aided, as they perhaps did, in the suppression of the sale of intoxicating liquors by the extraordinary method of punishment for crime in an equity cause, but that they accustomed the court to the use of equity powers for public reasons, and not in the administration of justice between private parties.

I think a review of these cases must satisfy any impartial mind that the courts have unduly extended their equity power to enjoin, and to punish for contempt, and have in fact assumed to govern by injunction.

They have really used their power to adjudicate between private parties, and to protect private rights for the purpose of preserving the public peace and to punish public

wrongs.

The only ground upon which these suits in equity by private parties can be sustained is that they are to prevent irreparable injury to private property; i. e., because they state threatened injuries to private property, for which, if committed, there will be no adequate remedy at law. The jurisdiction of an equity court to restrain irreparable injury to private property is undoubted, and has never been questioned.

Neither can it be said that the mere fact that a threatened injury will subject a person committing it to punishment for crime, because the commission of the injury is a crime at common law or by statute, prevents an exercise of the power to enjoin. A man who is about to dig down his neighbor's wall cannot say, “A court cannot enjoin me from digging down the wall, because there is a statute which makes it a crime to dig down the wall." A man who is about to commit irreparable injury of a character which the law makes it a crime to commit, is surely no less subject to injunction than a man who is about to commit an irreparable injury which the law does not make a crime.

Suppose certain acts which would cause irreparable injury are not to-day criminal, and the court enjoins them,