Page:Harvard Law Review Volume 9.djvu/549

521 INJUNCTIONS AGAINST LIQUOR NUISANCES. $21 INJUNCTIONS AGAINST LIQUOR NUISANCES, /^^AN a court of equity constitutionally enjoin, as a public nui- ^-^ sance, the use of premises for the illegal sale of intoxicating liquors, without proof that the sale amounts to a nuisance to property? Most lawyers would, I think, be inclined to answer the question in the negative were it not for the fact that in a number of cases, some of which have apparently been well contested, statutes giving such a power have been upheld, both under the Federal and State Constitutions.^ In no case, I believe, has such legislation been held unconstitutional, though it has already been adopted and is, apparently, actively and most effectively enforced in no less than seven of the States.^ The novelty of such a method of enforcing an excise or prohibitory law alone invites a scrutiny of its validity. And the importance of the inquiry is emphasized by the fact that similar provisions, empowering courts of equity to restrain viola- tions of statutory prohibitions against monopolies, trusts, etc., have recently been incorporated in the Interstate Commerce Act,^ the Anti Trust Act,* and the Tariff Act of 1894.^ Of the statutes we are now considering, that of Massachusetts may fairly be taken as a type. It is as follows : — 1 Schmidt v. Cobb, 119 U. S. 286; Kansas v. Ziebold, 123 U. S. 623; Kidd v. Pearson, 128 U. S. i ; Eilenbecker v. District Court of Plymouth Co., 134 U. S. 31 ^ Carleton v. Rugg, 149 Mass. 550 ; Littleton v. Fritz, 65 la. 488 ; State v. Crawford, 28 Kan. 726, semble ; State v. Currier, 19 Atl. Rep. (N. H.) 1000, semble ; State v. Fraser, 48 N. W. Rep. (N. D.) 343, semble. 2 Mass., Pub. St. c. 380, § i ; N. H., Pub. St. c. 205, §§ 4, 5 ; Vt., Rev. St. § 3834 ; Ohio, 2 Rev. St. § 6942 ; W. Va., Code, c. 32, § 18; la., McClain's Code, § 2384; Kan., Comp. L. § 2533; N. D., L. 1890, c. 119, § 13; S. D., L. 1890, c. loi, § 13. 3 U. S. Stat. 1889, c. 382, §§ I, 5. 6 U. S. Stat. 1894, c. 349, § 74. The Tariff Act, after prohibiting combinations, etc. in restraint of trade, provides, by section 74, " that the several Circuit Courts of the United States are hereby invested with jurisdiction to prevent and restrain violations of section seventy-three of this Act ; and it shall be the duty of the several District Attorneys of the United States, in their respective districts, under the direction of the Attorney General, to institute proceedings in equity to prevent and restrain such violations."
 * U. S. Stat. 1890, c. 647, § 4.