Opinion
Sac. No. 1104.
August 1, 1905.
APPEAL from a judgment of the Superior Court of Sierra County. Stanley A. Smith, Judge.
The facts are stated in the opinion of the court.
Frank R. Wehe, District Attorney, and W.I. Redding, Successor, for Appellant.
The business, as conducted in violation of the ordinance, was a public nuisance. (Civ. Code, sec. 3479; Wood on Nuisances, secs. 1, 37, 38, 45, 763; Crowley v. Christensen, 137 U.S. 86, 11 Sup. Ct. 13; Goddard v. Jacksonville, 15 Ill. 588, 60 Am. Dec. 773; Cleveland v. Citizens' G.L. Co., 20 N.J. Eq. 201; Municipal Corporations Act of 1883, sec. 868; Const. Cal., art. XI, sec. 11; Wingler v. Kansas, 123 U.S. 623, 8 Sup. Ct. 273; Fertilizing Co. v. Hyde Park, 97 U.S. 658; Bepley v. State, 4 Ind. 264, 58 Am. Dec. 628; Lawton v. Steele, 119 N.Y. 226, 16 Am. St. Rep. 813, 23 N.E. 878; Harbaugh v. City of Monmouth, 74 Ill. 369; Ex parte Shrader, 33 Cal. 279; Johnson v. Simonton, 43 Cal. 249; Ex parte Casinello, 62 Cal. 538; In re Linebaur, 72 Cal. 116, 13 P. 170; McClosky v. Kreling, 76 Cal. 511, 18 P. 433; Ex parte Lacey, 108 Cal. 326, 49 Am. St. Rep. 98, 41 P. 411; Commonwealth v. Howe, 13 Gray, 26; Streeter v. People, 69 Ill. 595; Zumhoff v. State, 4 G. Greene, 526; McLane v. Leicht, 69 Iowa, 401, 29 N.W. 327; State v. Crawford, 28 Kan. 726, 42 Am. Rep. 182.)
John P. Irish, for Respondent.
The recorder's court has exclusive jurisdiction of all breaches of town ordinances. (Gen. Laws, p. 894.) Equity will not enforce the ordinances of a municipal corporation unless the act is shown to be a nuisance per se, and not made such by the ordinance alone. (High on Injunctions, sec. 788; Beach on Injunctions, secs. 1044-1078, 1079, 1301; Waupun v. Moore, 34 Wis. 450, 17 Am. Rep. 446.)
This action was brought by the district attorney of Sierra County, under the statute authorizing the district attorney of any county "in which a public nuisance may now or hereafter shall exist" to "bring a civil action in the name of the people of the state to abate said nuisance" (Stats. 1899, p. 103), to procure a decree abating an alleged public nuisance in the town of Loyalton, Sierra County, a municipal corporation of the sixth class, and enjoining the defendant from maintaining the same. A demurrer was interposed to said complaint, the grounds thereof being — 1. Want of facts sufficient to constitute a cause of action; and 2. That the court had no jurisdiction of the subject-matter of the action. The superior court sustained said demurrer, and plaintiff declining to amend, judgment was entered in favor of defendant. The plaintiff appeals from said judgment.
The alleged public nuisance is the keeping and maintenance in said town of "a tippling-house where spirituous, vinous, malt, and intoxicating liquors are sold and given away," and "a gambling-room," all "known as Wing's saloon," which, it is alleged, said defendant has maintained for some time, and threatens to continue to maintain.
It appeared from the allegations of the complaint that the board of trustees of this town has by ordinance prohibited the maintenance of such places, and has declared by the same ordinance the doing of any act prohibited thereby "to be a public nuisance." Reliance is placed by appellant upon this official declaration of said trustees. (See Municipal Corp. Act, sec. 868, Gen. Laws 1903, p. 902.) We do not here, however, feel called upon to express any opinion as to the effect of this declaration.
Independently of the allegations as to said ordinance, there are allegations of specific facts tending to the conclusion that the place complained of is being conducted in such a way that it is a public nuisance in fact, and that the maintenance of it in this way is threatened to be continued. It is also alleged in terms that it has been so conducted "to the extent that the keeping of said tippling-house and place and gambling-room is injurious to the health, is indecent, and offensive to the senses, interferes with the free use of property, the comfortable enjoyment of life and property at said town of Loyalton, and is a public nuisance therein."
It is unnecessary to here consider the allegations of the complaint in this behalf further than to say that we think they sufficiently state a cause of action for abatement of a public nuisance, as against a general demurrer for want of facts.
We see nothing in the contention made by the demurrer that the superior court of Sierra County was without jurisdiction of the subject-matter of the action. The superior court is the only court in which actions of this character may be maintained. (Const., art. VI, sec. 5.)
The judgment is reversed and the cause remanded, with directions to the lower court to overrule the demurrer interposed to the complaint.
McFarland, J., Henshaw, J., and Angellotti, J., dissented.