June 30, 1944.
July 1, 1944.
Constitutional law — Trial by jury — Due process — Police power — Equity — Jurisdiction — Injunction — Public nuisances — Possession and sale of liquor — Pennsylvania Liquor Control Act.
1. The Act of November 29, 1933, Special Session, P. L. 15, as amended (which declares that property used in connection with the possession and sale of liquor under specified circumstances constitutes a common nuisance, and which provides that an action to enjoin any nuisance as defined in the act may be brought in the name of the Commonwealth in any court of equity), is not unconstitutional as a denial of the right of trial by jury or as a deprivation of property without due process of law. [111-20]
2. The Act of 1933, as amended, is a proper exercise of the police power of the Commonwealth for the protection of the public health, safety and morals. 
3. A court of equity has jurisdiction to restrain a public nuisance. 
4. The fact that the same conduct which constitutes the nuisance sought to be enjoined may subject the defendant to criminal prosecution does not preclude equitable relief. 
Argued June 30, 1944.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and HUGHES, JJ.
Appeal, No. 226, Jan. T., 1944, from order of C. P. No. 5, Phila. Co., March T., 1944, No. 2489, in case of Commonwealth v. James J. Cochran Post No. 251 of the V. F. W. of U.S. et al. Order affirmed.
Bill in equity.
The facts are stated in the opinion by ALESSAN-DRONI, J., of the court below, as follows:
This is a bill in equity, filed by the District Attorney of Philadelphia County on behalf of the Commonwealth of Pennsylvania, praying an injunction be granted abating a common nuisance flowing from the possession and sale of liquor. Complainant seeks such relief under the Act of November 29, 1933, Special Session, P. L. 15, Article VI, paragraph 608 (b), as amended: 47 P. S. 744-608(b) which provides:
"An action to enjoin any nuisance, defined in this Act, may be brought in the name of the Commonwealth of Pennsylvania by the attorney general or by the district attorney of the proper county. Such action shall be brought and tried as an action in equity, and may be brought in any court having jurisdiction to hear and determine equity cases within the county in which the offense occurs."
The same statute (paragraph 602) describes 30 acts or courses of conduct which are declared unlawful and, by paragraph 608 (a) thereof, violations of the things so prohibited are "declared to be a common nuisance" and offenders are punishable as misdemeanants. Needless to add, the present bill sets forth a series of acts in violation of the matters prohibited which, for purposes of our present consideration, must be deemed true.
Respondents have filed preliminary objections challenging the jurisdiction of equity and the constitutionality of the statute as a denial of the right of trial by jury and a deprivation of property without due process of law.Discussion.
The statute in question is clear in its expression. In resolving the questions raised by the preliminary objections we are mindful that, "it has been said by an eminent jurist, that when courts are called upon to pronounce the invalidity of an act of legislation, passed with all the forms and ceremonies requisite to give it the force of law, they will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light upon the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt. A reasonable doubt must be solved in favor of the legislative action, and the act be sustained": I Cooley's Constitutional Limitations (Eighth Edition) 371. This salutary observation has itself received legislative sanction by the Statutory Construction Act declaring "That the Legislature does not intend to violate the Constitution of the United States or of this Commonwealth": Act of May 28, 1937, P. L. 1019, art. IV, sec. 52, 46 P. S. sec. 552(3).
Looking, therefore, to the essence of the objections raised, it is significant that the legislative declaration that the conduct prohibited is a "common nuisance" is not attacked as arbitrary or capricious and must be deemed to be admitted. The act, in its entirety, represents a proper exercise of the police power of this Commonwealth in a field where, without adequate safeguard and control, abuse may jeopardize the public health, safety and morals: Appeal of Oriole, 146 Pa. Super. 464 (1942). Such legislation, and the reason therefor, is by no means novel. In the preamble of an act of the English Parliament, enacted in 1606, regulating the sale of liquor, it is said "The loathesome and odious sin of drunkenness of late grown in common use is the root and foundation of many other enormous sins, such as bloodshed, stabbing, murder, swearing, fornication, adultery, and such, to the great dishonor of God and the nation, to the overthrow of good arts and manual trades, to the disabling of divers workmen and general impoverishment of many good subjects": see Black, on Intoxicating Liquors. In our own Commonwealth, the exercise of legislative control in this field, pursuant to the police power, has been recognized and approved. The present act is not unique in declaring the prohibited conduct a nuisance and in providing for the abatement thereof by injunctive process; a similar provision existed under the Act of May 13, 1887, P. L. 108, sec. 18: "Any house, room, or place, hotel, inn, or tavern, where vinous, spiritous, malt, or brewed liquors are sold, offered for sale, drank or given away, in violation of any law of this Commonwealth, shall be held and declared a nuisance and shall be abated by proceedings at law or equity." Although this provision was not construed by our appellate courts, the constitutionality thereof, raised by an attack identical to the present objections, was sustained in Wishart v. Newell, 4 County Courts Reports 141 (1887), where it was said: "Courts of equity have clearly jurisdiction to abate nuisances. The fifth paragraph of the 13th section of the Act of June 16, 1836, Purd. 691, gives equity jurisdiction 'for the prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individuals.' This is a very clear grant of jurisdiction to abate a nuisance.
" 'Equity will interfere (by injunction) for the purpose of protecting legal rights. The occasions which most usually call for the interference of equity for this purpose are cases of waste, trespass, nuisance,' . . . Bispham's Equity, sec. 30.
" 'It is not to be denied that the courts of common pleas have jurisdiction to restrain public nuisances under certain circumstances. . . . The mere fact that there is a remedy at law by indictment or action will not alone prevent the exercise of the power.' Bunnell's Appeal, 69 Pa. 59, 62. To the same effect is Com. v. Rush et al., 14 Pa. 186. Also Huddleston's Appeal from the decree of this court, decided in the Supreme Court at October Term, 1886 (5 Cent. R. 557). In that case the township supervisors filed a bill to abate a nuisance and threatened continuance thereof on the public road. It was very clear that there was a remedy by indictment, but the jurisdiction in equity was sustained and the practice approved.
"We know of no constitutional provision which secures a defendant a right of trial by jury in a claim of right to violate the law, or that forbids a civil suit because the defendant may also be liable to a criminal prosecution.
"We are unable to see any valid or even plausible reason, in light of the authorities, that can be urged against the power of the legislature to declare the maintaining of a place for the illegal sale or giving away of liquor to be a nuisance, and to direct that it may be abated by proceedings in equity."
A substantially identical provision was enacted in the Act of March 27, 1923, P. L. 34, sec. 6, and the constitutionality of the power to abate the conduct there defined as a "common nuisance" was considered in Commonwealth v. Dietz, 285 Pa. 511 (1926). The provisions of the Act of 1937, being a reenactment of the Acts of November 29, 1933, P. L. 15, and July 18, 1935, P. L. 1246, employs in many provisions, the identical language of the Act of 1923, supra; it differs only in degree and not in kind. The Act of 1923 was a prohibition; the Act of 1937 falls short of prohibition but approaches it by regulation and control. The purpose of the Liquor Control Act is to regulate and restrain the sale of liquor; not to promote it: Com. v. Bienkowski, 137 Pa. Super. 474 (1939). In terms of the continuity of expression and purpose, however, all such legislation may be traced to the early English act above quoted.
In dismissing the constitutional challenge raised in the Dietz case, supra, the court said "When the legislature validly pronounces a particular state of affairs to be a nuisance prejudicial to the public health, it is as much so as if the prescribed situation had been considered a 'nuisance . . . at common law,' and 'may be prohibited by the same remedies' ( Com. v. Charity Hospital, supra, 279); but, of course, the Legislature may not, under the guise of extending the remedy by injunction to a new situation, interfere with the fundamental right of trial by jury in cases within the class covered by the constitutional provision for its preservation. The act under discussion, however, does not infringe this right, for, speaking generally, it exists only in cases belonging to a class not originally within the purview of equitable jurisdiction ( Byers v. Com., 42 Pa. 89, 94; Canavan v. Paye, 34 Pa. Super. 91, 98; and, moreover, there is nothing to prevent the legislature from granting relief without trial by jury when dealing with legal situations, not within the common law and defined by statute since the adoption of the Constitution ( Van Swartow v. Com., 24 Pa. 131, 133-4; Rhines v. Clark, 51 Pa. 96, 101; Com. v. Andrews, 211 Pa. 110, 113; Com. v. Mecca Co., 60 Pa. Super. 314, 318), like the one here involved.
Again, since the Act of 1923 contains a provision for its enforcement by injunction, the fact that a violation thereof also constitutes a misdemeanor is of no moment ( Penna. Lead Co.'s Appeal, 96 Pa. 116, 123; Evans v. Fertilizing Co., 160 Pa. 209, 215; Com. v. Kennedy, 240 Pa. 214, 220; Ashinsky v. Levenson, 256 Pa. 14, 17; Mahon v. Penna. Coal Co., 274 Pa. 489, 502); the punishment by indictment and fine or imprisonment is to be invoked against the individual offender, while the remedy by injunction is afforded so as to give immediate relief against a state of affairs the existence of which, in the opinion of the legislature, will menace the public health, safety and welfare."
The respondents, seeking to avoid the well-nigh conclusive implication of the Dietz case, have asserted that the sole basis of that decision was that the nuisance which was abated, when deleterious and bootleg liquor was rampant, was one which was detrimental to public health, but that the liquor presently being dispensed is not deleterious or poisonous as it was in 1923. Hence, it is argued, the jurisdiction of equity was there sanctioned to abate that kind of nuisance only. We are of the opinion that such a distinction has no place in the logic of the law. Conceding that there may be even a remote basis for the argument, it must meet an ignominious fate in a reading of the bill filed and the conduct prohibited by the act. Certainly a prohibition against the sale of intoxicating liquors to minors, to persons visibly intoxicated, and habitual drunkards, was intended to safeguard the public health. And even if this were not so, is the interest of the community in public safety and public morals less than, equal to, or greater than the interest in the public health? The argument suggests that a distinction in kind prevails as to these matters. We see no reason in it in logic or in the history of equity jurisprudence. Can we distinguish between the public interest in the possible sale of deleterious and bootleg liquor, prevalent in 1923, and the possible attendance of persons of ill repute and prostitutes frequenting licensed drinking establishments? The legislature, in its wisdom, has seen fit to place all such conduct in the category of prohibited acts and, as to all, vested the same power of injunction to abate the continuance thereof. We cannot substitute our judgment for that of the legislature ( Nolan v. Jones, 263 Pa. 124), nor can we recognize a difference where none exists: Respass v. Com., 131 Ky. 807, 815.
The fact that the same conduct may also be prosecuted by indictment and punishable as a misdemeanor pursuant to the same act, should be no source of comfort to the respondents or reason for the absence of jurisdiction in equity. Even if a criminal prosecution had resulted in an acquittal, that fact would not bar proceedings to abate the nuisance: Minke v. Hopeman, 87 Ill. 450.
Some confusion may and does arise because of dual aspects of the statute under review. It must be understood, however, that when the court enjoins that which the legislature has declared to be a common nuisance, it does not thereby punish the persons responsible for the crime, even though the conduct enjoined be a crime. If the persons restrained fail to obey the injunctive decree they may be punished. Again, however, the punishment is meted out not for the criminal offense but rather for the failure to obey the order of the court: U.S. v. Reinking, 283 Fed. 855; Davis v. Auld, 96 Me. 559. The case of Hedden v. Hand, 90 N.J. Eq. 583, relied on by the respondents, represents an extreme minority view and stands alone in the midst of a host of cases holding that such statutes are constitutional: 46 C. J. 765; II Cooley's Constitutional Limitations (Eighth Edition) 865, and cases therein cited in footnote No. 1. We are of the opinion that the Hedden case, supra, neglected to recognize the distinction between the functions and processes of equity and those of the criminal law. It seizes upon the fact that the offense charged was indictable at common law without recognizing that chancery, in the exercise of its ancient powers, also had power to enjoin the continuance of such acts.
2 Story's Equity Jurisprudence, 13th Ed., contains the following:
"In regard to public nuisances the jurisdiction of Courts of Equity seems to be of a very ancient date, and has been distinctly traced back to the reign of Queen Elizabeth. The jurisdiction is applicable not only to public nuisances, strictly so-called, but also to purprestures upon public rights and property" (sec. 921).
"In cases of public nuisances properly so-called an indictment lies to abate them and to punish the offenders. But an information also lies in equity to redress the grievance by way of injunction" (sec. 923).
"The ground of this jurisdiction of Courts of Equity in cases of purpresture as well as of public nuisances undoubtedly is their ability to give a more complete and perfect remedy than is attainable at law, in order to prevent irreparable mischief, and also to suppress oppressive and vexatious litigation. In the first place, they can interpose where the Courts of Law cannot, to restrain and prevent such nuisances as are threatened or are in progress, as well as to abate those already existing. In the next place by a perpetual injunction the remedy is made complete through all future time; whereas an information and indictment at the common law can only dispose of the present nuisance, and for future acts new prosecutions must be brought" (sec. 924).
So far as the contention that respondents, by this Statute, are deprived of their property without due process of law is concerned, this must fall for two reasons. Firstly, because a liquor license is not property but a privilege only: Spankard's Liquor License Case, 138 Pa. Super. 251 (1940). Secondly, the respondents, who are responsible for the maintenance of the nuisance, can hardly be permited to seek shelter behind a cloak of immunity cut from the instruments whereby they commit the nuisance.
The assertion of a property right by the respondents has suggested for our consideration the right of the respondents to challenge the validity of this statute. Respondents hold their license and, as a corollary thereto, commit the nuisances in question by grace of the very Statute whose constitutionality is now attacked: Act of November 29, 1933, P. L. 15, art. IV, sec. 401, as amended. If the statute be unconstitutional the license of respondents is void and hence, respondents suffer nothing by the abatement provisions of the act: Premier Cereal Beverage Co. v. Pennsylvania Alcohol Permit Board, 292 Pa. 127 (1928). We have, however, seen fit to dispose of this matter upon the merits of the case rather than upon the absence of authority in the respondent to attack the statute.
As far as the broad and comprehensive nature of the prayer of the bill is concerned, the argument raised in this regard is wholly premature. It should be noted, however, that the very objective of injunctive relief would be impaired if anything short of a comprehensive decree would be entered: Commonwealth v. Cohen, 150 Pa. Super. 487 (1942).
One final observation should be noted. Respondents are not wholly without the benefit of a jury if desired. In the section of the Act providing for abatement of the nuisance, the procedure to be followed is defined as follows: "Such action shall be brought and tried as an action in equity . . ." The equity procedure, promulgated by the Equity Rules of the Supreme Court, accordingly prevails and under Rule 61, the respondents have the right to request the court to award an issue or issues to determine questions of fact. This right is in no wise affected by the statute in question and is readily available to respondents.
A. Evans Kephart, for appellants.
John A. Boyle, First Assistant District Attorney, with him Americo V. Cortese, Assistant District Attorney, and John H. Maurer, District Attorney, for appellee.
Now, July 1, 1944, the order of the court below is affirmed on the opinion of Judge ALESSANDRONI, appellants to pay the costs.