Sivut kuvina

Opinion of the Court.

the sale of intoxicating liquors, and of the maintenance of gambling houses. A right of action is given by the Code to any one who may be injured by the sale of intoxicating liquors. SS 2059–2061. These sections may fairly be regarded as in pari materia with the other sections already referred to. By fair construction of $ 2059 of the Code, the remedy here sought is given ; but SS 605, 606, providing for an action for damages and for other and further relief, and for a writ of injunction when an action at law is inadequate, when considered in connection with $ 2059, place this beyond controversy.

And further, it is well settled in general equity jurisprudence, that such jurisdiction exists to prevent a multiplicity of suits ; to prevent the continuance of a wrong which cannot be remedied at law; and where the defendants are insolvent and unable to respond in compensation for damages. Story Eq. Jur. SS 920, 923, 925, 927.

No appearance for appellees.

MR. JUSTICE Gray, after stating the case, delivered the opinion of the court.

The Northern Pacific Railroad Company asks for an injunction against the county commissioners and the other defendants, because the latter, under pretended licenses from the former, keep and maintain gambling and drinking saloons at the village of Tunnel City and along the line of the plaintiff's railroad, and there sell intoxicating liquors at retail to the plaintiff's employés, and thereby make them drunk and unfit to work under their several contracts with the plaintiff, and thus increase the danger to its agents and employés from the use of the machinery and explosives required in constructing its railroad, cause many of the employés to quit its employment, delay and increase the expense of constructing its railroad, seriously annoy its agents and their families, and consequently diminish the value of the plaintiff's property.

It is not alleged that the defendants have conspired or intend to injure the plaintiff's property or business, or to


Opinion of the Court.

prevent the plaintiff's workmen from performing their contracts of service. Nor is it alleged that any one of the saloons kept by the several defendants is a disorderly house, which, by reason of noises in or about it, or otherwise, is a nuisance to property in the neighborhood. The whole complaint is based upon the theory that by the general principles of equity jurisprudence, and by the provisions of the Code of Washington Territory, the saloons kept by the defendants severally are, by reason of the sales of intoxicating liquors therein to the plaintiff's workmen, and their consequent drunkenness and incapacity to work, public nuisances, and cause special damage to the plaintiff, to prevent the repetition and continuance of which it is entitled to an injunction.

But the usual, and at the suit of a corporation the only, ground on which, independently of express statute, a court of equity will grant an injunction in a private action for a nuisance is special injury to the plaintiff's property. 3 Bl. Com. 216; Robinson v. Kilvert, 41 Ch. D. 88; Georgetown v. Alexandria Canal Co., 12 Pet. 91, 99. No employer has such a property in his workmen, or in their services, that he can, under the ordinary jurisdiction of a court of chancery, maintain a suit, as for a nuisance, against the keeper of a house at which they voluntarily buy intoxicating liquors, and thereby get so drunk as to be unfit for work.

Nor is there anything in the provisions of the Code of the Territory, cited in behalf of the plaintiff, which enlarges the equitable jurisdiction in this respect.

By that code, a nuisance, other than the obstruction of a highway, or of navigable or running waters, is defined to be “ whatever is injurious to health, or indecent or offensive to the senses, or an obstacle to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property ”; and again, “unlawfully doing an act, or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others, offends decency, or in any way renders other persons insecure in life, or in the use of property”; “the remedies against a public nuisance are indictment or civil action


Opinion of the Court.

or abatement”; and an action for damages may be brought, and an injunction or abatement obtained, “ by any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance.” Secs. 605, 606, 1235, 1242. As a corporation cannot be said to have life or health or senses, the only ground on which it can obtain either damages or an injunction, under these provisions, is injury to its property.

The code further provides, in section 1247, that all houses of ill fame; "all public houses or places of resort where gambling is carried on or permitted; all houses or places within any city, town or village, or upon any public road or highway, where drinking, gambling, fighting or breaches of the peace are carried on or permitted ”; and all opium dens;

' are nuisances, and may be abated, and the owners or keepers thereof punished. This section is aimed at nuisances which affect the public morals or the public peace, and affords no countenance for a private action, unless by an owner of property, the use or enjoyment of which is specially affected by the existence of such a nuisance in its immediate neighborhood. United States v. Columbus, 5 Cranch C. C. 304; Meyer v. State, 12 Vroom, (41 N. J. Law,) 6; IIamilton v. Whitridge, 11 Maryland, 128; Inchbald v. Robinson, L. R. 4 Ch. 388.

The Code of Washington Territory contains no enactment, such as exists in some States, declaring all houses or tenements kept for the unlawful sale of intoxicating liquors to be common nuisances, and conferring jurisdiction in equity to restrain them by injunction, at the suit of the district attorney or of a private citizen.

The plaintiff relies on section 2059, which provides that “any husband, wife, child, parent, guardian, employe[r?], or other person who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving intoxicating liquors, have caused the intoxication in whole, or in part, of such person,” as well as against the owner

Statement of the Case.

of the building or premises in which the liquors are sold, if he has leased it with knowledge that such liquors are to be there sold, or has knowingly permitted their sale therein. But this section, creating a new liability, unknown to the common law, is to be strictly construed, and is not to be extended beyond the clear import of its terms; and, as the only remedy which it gives is an action against the seller of the liquor, or against the owner of the place where it is sold, to recover damages suffered by reason of sales to particular persons, it cannot be construed as authorizing an injunction to prevent the use of the building for future sales.

The complaint in this case has no foundation, in common law or statute, in principle or precedent.

Judgment affirmed.

In re TYLER, Petitioner.


No. 17. Original. Argued April 4, 1893. – Decided April 24, 1893.

Property within a State, which is in the possession of a receiver by virtue

of his appointment as such by a Circuit Court of the United States, is not subject to seizure and levy under process issuing from a court of the State to enforce the collection of a tax assessed upon its owner under the

laws of the State. The exclusive remedy of the State tax collector in such case is in the Cir

cuit Court which appointed the receiver, where the question of the validity of the tax may be heard and determined, and where the priority of payment of such amount as may be found to be due which is granted by the

laws of the State will be recognized and enforced. The writ of habeas corpus is not to be used to perform the office of a writ of

error, or of an appeal. When no writ of error or appeal will lie, if a petitioner for a writ of habeas

corpus be imprisoned under a judgment of a Circuit Court which had no jurisdiction of the person or of the subject matter, or authority to render the judgment complained of, then relief may be accorded by writ of habeas corpus.

This was a petition for a writ of habeas corpus filed by leave of court March 7, 1893, by M. V. Tyler, sheriff of the county

Statement of the Case.

of Aiken, South Carolina, representing that he is unjustly detained by G. I. Cunningham, United States marshal for the District of South Carolina, to which the marshal made return upon a rule laid upon him to do so. The facts appearing from the petition, return, and accompanying documents are as follows:

On December 5, 1889, in the case of Bound v. The South Carolina Railway Company, Daniel H. Chamberlain was appointed receiver of the railway company by an order of the Circuit Court of the United States for the District of South Carolina, with the usual powers of receivers in such cases, and all of the property of the company was placed under his care and management and protected by injunction. On March 7, 1892, the receiver filed a bill in equity in that court against the treasurers and sheriffs, eighteen in number, in the counties through which the railroads in his possession passed, alleging that the treasurers were about to issue tax executions and the sheriffs about to levy and seize thereunder property of the railroad company for the taxes for the fiscal year beginning November 1, 1890. The bill alleged that the taxes for that fiscal year were unconstitutional and illegal in part, upon various grounds set forth therein in detail, and involving an alleged wrongful and illegal raising of the valuation of the state board of equalization; that the levy and sale of the road would cause irreparable injury, preventing the receiver from carrying on the business of the railroad as a common carrier; that there was no adequate remedy at law; that a multiplicity of suits would be necessary to protect his rights if he sued at law; and that the levy would cast a cloud upon the property; and prayed for an injunction against the issue and levy of the tax warrants in question. The bill further set forth that the receiver had tendered without condition the taxes admitted to be due and that the same had been refused by the county treasurers, but pending the motion for preliminary injunction the defendants were permitted to waive this refusal and receive the amounts tendered, which was accordingly done. On April 8, 1892, the court, after full hearing, issued the injunction prayed for, and the defendants having answered, it was provided by order of

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