Page:Harvard Law Review Volume 9.djvu/550

522 522 HARVARD LAW REVIEW. " The Supreme Judicial Court and Superior Court shall have jurisdic- tion in equity upon information filed by the District Attorney for the district, or upon the petition of not less than ten legal voters of any town or city, setting forth the fact that any building, place, or tenement therein is resorted to for prostitution, lewdness, or illegal gaming, or is used for the illegal keeping or sale of intoxicating liquors, to restrain, enjoin, or abate the same as a common nuisance, and an injunction for such purpose may be issued by any justice of either of said courts. The statutes of some of the other States are quite different in details, often, and particularly in the case of North and South Dakota, strongly suggesting the real criminal nature of the law.^ But the principal involved in all is the same. In the two cases in which the constitutionality of the statutes under the State Constitutions has been most discussed,^ they have been sustained on the ground that, while equity cannot enjoin a crime as such, it has always had jurisdiction to restrain nuisances and to regulate the use of property, and that, as the legislature can declare what acts shall constitute a nuisance, it may also declare that the remedies which equity has used against other nuisances may also be employed to restrain such statutory nuisances. It seems clear that, apart from the statutes, equity would not exercise the jurisdiction which they confer. The act prohibited is in itself nothing but a crime of a very familiar kind, and that equity cannot enjoin a crime as such none will dispute. Nor does it help matters that the illegal act is, or is called, a nui- sance. Over nuisances as such, and as they are defined in the 1 Thus in North Dakota the Attorney General, his assistant, or any citizen of the county, may maintain an action in the name of the State to abate and enjoin the use of premises for the illegal sale, etc. of intoxicating liquors. The injunction is to be granted at the beginning of the action, and may be upon an affidavit and complaint made on information and belief, and without a bond. Upon affidavits showing that intoxi- cating liquors are illegally sold or kept for sale on the premises, the court or judge must issue a warrant under which an officer must search the premises, invoice all articles found, used in carrying on the unlawful business, seize and hold to abide the event of the action all intoxicating liquors, and seize and hold possession of the premises until final judgment. In proceedings to punish for a contempt, the accused may plead as he would to an indictment, may be required to answer interroga- tories, oral or written, and in case of conviction must be punished by a fine of not less than $200 nor more than ^1,000, and by imprisonment for not less than ninety days nor more than one year, the same penalties imposed by the statute for the illegal sale itself. N. D. L., 1890, c. no, § 13. 2 Carleton v. Rugg, 149 Mass. 550; Littleton v. Fritz, 65 la. 488.