Northern Pacific Company v. Whalen

Statement by Mr. Justice GRAY:

This was an action, in the nature of a bill in equity to restrain a nuisance, commenced December 17, 1887, in a court of Kittitass county in the territory of Washington, by the Northern Pacific Railroad Company against the three county commissioners of that county, 21 persons constituting 10 partnerships, and 28 other persons, by a complaint alleging as follows: That the plaintiff was a corporation created by an act of congress of July 2, 1864, to construct a railroad from Lake Superior to Puget Sound, and was constructing its railroad and a tunnel through and over the Cascade Mountains and at the village of Tunnel City, and had there 4,000 employes engaged in constructing its road, and such construction made it necessary to use high explosives, such as dynamite, and machinery run by electricity, steam, and compressed air, which required sober, skilled labor.

That the defendants, except the county commissioners, at and near Tunnel City, and along the line of the railroad so being constructed by the plaintiff, 'for several months last past, have been running retail drinking and lager-beer saloons, and selling spirituous, malt, and fermented liquors to the said employes of said plaintiff; and that the said sales of said liquors to said employes have frequently and continuously caused drunkenness of said employes; and that the said drunkenness incapacitated the said employes so that they were not able to perform the labor assigned to them and the labor they were expected to do and for which they were employed; and that the said drunkenness increased the risk and danger incident to the necessary use of said explosives and machinery, and increased the danger to the employes employed in constructing the road as aforesaid, and to the officers and agents of said plaintiff, and has caused and is causing many of said employes to quit their said employment on account thereof.'

That 'during the four months last past the said railroad company has employed and transported in and upon said work at and near Tunnel City, in Kittitass county, about eight thousand men, at an average expense of ten dollars for each man; that about four thousand of said men so employed, for the reasons aforesaid, quit and left the work of said plaintiff;' and that the plaintiff, by reason of such sales of liquors to its employes, had been prevented from obtaining and retaining enough employes to complete its road as far as Tacoma during the present year, and would be obliged to continue he work during the coming winter, at an increased expense of more than $100,000.

That 'said saloons have been so conducted, and drunkenness and gambling permitted and carried on to such an extent, that they, the said saloons, have been for months and are now public nuisances, and also a private nuisance in so far as the said plaintiff is concerned; that the superintendents, officers, and families thereof are seriously discommoded, discomfited, injured, and annoyed by said nuisance; and that said lives of the officers, agents, and employes have been endangered, and the said property of the said plaintiff has been diminished and injured in value, in consequence of said sales of liquors and drunkenness caused thereby; and that the said plaintiff, by said saloons, and the sale of intoxicating liquors therein to said employes, and said drunkenness and said gambling, has sustained great and irreparable injury.'

That 'said saloons and the said beer halls have been and are now running, and selling at retail said intoxicating liquors as aforesaid, to employes of the plaintiff and others, without a license, and without any right or authority so to do.'

That 'said saloons during the past have, and will in the future, unless enjoined, continuously and constantly continue to sell said intoxicating liquors to said employes, and constantly and continually permit said drunkenness and maintain said gambling houses and said public and said private nuisances, to the great injury, danger, discomfiture, and annoyance of the said plaintiff and the said plaintiff's employes and the said property of plaintiff.'

That the saloons aforesaid were on unsurveyed lands, owned one half by the plaintiff and the other half by the United States, and were run and maintained under licenses issued by the county commissioners without right or authority; that the other defendants intended to apply, and were now fraudulently applying, to the county commissioners for licenses to sell intoxicating liquors at retail, without filing the consent of the owners of the lands, as required by law; that the county commissioners, knowing this, intended to grant such licenses; and that 'the granting of said licenses will greatly complicate said matters, and injure and damage said plaintiff, and will deprive plaintiff to a great extent, if not absolutely, of any remedy against said defendants, and cause the plaintiff great and irreparable damage.'

That the defendants were insolvent and unable to respond in damages; that the plaintiff had no adequate remedy at law; and that the granting of an injunction would avoid a great multiplicity of suits.

Wherefore the plaintiff prayed for an injunction to restrain the county commissioners from granting to the other defendants licenses to retail spirituous, malt, and fermented liquors, and to restrain the other defendants from selling such liquors at retail, and from running and maintaining the saloons and nuisances aforesaid, and for general relief.

The defendants demurred to the complaint, as not stating facts sufficient to constitute a cause of action. The demurrer was sustained, and judgment rendered for the defendant. The plaintiff appealed to the supreme court of the territory, which affirmed the judgment. 3 Wash. T. 452, 17 Pac. Rep. 890. The plaintiff thereupon, on March 7, 1889, appealed to this court.

James McNaught, A. H. Garland, and Heber J. May, for appellant.

Mr. Justice GRAY, after stating the facts in the foregoing language, delivered the opinion of the court.