specially concurring in a reversal :
While I concur in a reversal of the judgment, I am unable to agree with all that is said in the opinion of Mr. Justice Garrigues, and am, therefore, impelled to give my reasons for a reversal.
The eighteenth sub-division of section 6525 of the Revised Statutes of 1908 gives to.boards of trustees in towns such as Akron pow.er over liquors in language as follows: “To have the right, subject to the laws of the state, to license, regulate or prohibit the selling or giving- away of any intoxicating, malt, vinous, mixed or fermented liquor within the limits of the * * * town, or within one mile beyond the outer boundaries thereof, except where the boundaries of the two * * * towns adjoin; the license not to extend beyond the municipal year in which it shall be granted, and to determine the amount to be paid for such licenseetc.
This statute gives a town the same power to regulate or prohibit the sale of intoxicating liquors within one mile beyond its boundaries as is given to it with respect to the same matter within its limits. If the town may prohibit such sale within its boundaries-by the exercise of a power given it, the sale may be prohibited in the same way within one mile beyond its boundaries. ■ Sub-division forty-five of the same sec*539tion gives to such boards of trustees the power “To declare what shall be a nuisance and to abate the same, and to impose fines upon parties who may create, continue or suffer nuisances to exist.” This sub-division grants the power, (1) to declare what shall be a nuisance, (2) to abate the same, and (3) to impose fines upon the partite designated. It appears to me from this sub-division that the town may abate a nuisance by proceeding against the thing itself or procure its abatement by imposing a fine upon the person who may suffer it to continue, or abate the nuisance in some way and fine the party responsible. This sub-division is not self-executing. It is necessary for a town to do something to carry the power granted into effect, and in the sixty-sixth sub-division of the same section a town is given the power to pass all ordinances and rules and to make all regulations proper or necessary to carry into effect the power granted. By virtue of the eighteenth sub-division aforesaid, a town may, by an ordinance, declare unlawful the selling of intoxicating liquors within its limits or within one mile beyond its outer boundaries. There is no doubt, under the authorities, that when a town has, by ordinance,’ made it unlawful to sell or keep for sale intoxicating liquors within its limits it may denounce such selling or keeping for sale as a nuisance, and under such circumstances the denunciation is conclusive. — Lauzel v. Bushnel, 197 Ill. 20; Houston v. Walton, 23 Colo. App. 282, 129 Pac. 263, and authorities therein cited. It may do this with reference to the selling or keeping for sale of intoxicating liquors within one mile of its limits, because by sub-division eighteen it is given the same power with respect to intoxicating liquors within one mile of its limits as within its limits. After a town has thus declared such sale or keeping for sale a nuisance, it may provide for the abatement thereof. Like the power to denounce the nuisance, the power to abate it can not be effective until the town elects to exercise the power and declares how it shall be exercised. This power is not self-executing, but must be carried into ef*540feet by some affirmative action of the town. This must be true, for nuisances may be abated in various ways, and it was surely not intended to leave the manner of their abatement to the whim of the officers or persons authorized to abate them.
The particular nuisance denounced in this case was not the liquor itself, but it was the unlawful sale or keeping for sale that constituted the nuisance, and it was the selling or keeping for sale that was to be abated. It might have been abated by destroying the liquor, by removing it more than one mile beyond the limits of the town, by finding the person selling it or keeping it for sale for each day of its maintenance, so that he would be induced to cease selling it or keeping it for sale, or the town might conclude that its abatement might be obtained by fining the person a single amount. It seems to me that it is for the board of trustees, to whom the power to abate is granted, to determine in some suitable way the lawful manner in which they will exercise the power, and the manner, if lawful, so determined by the board is the one to be followed by the town officers. What did the trustees of the town of Akron do in regard to this matter? The record discloses section 11 of ordinance 74 of the town of Akron, as, set out in the opinion of Mr. Justice Garrigues. It is plain that the portion of the printed ordinance, which was not published, to-wit, “and may be abated as any other nuisance,” is not a part of the ordinance. If we assume that the rest of the ordinance stands, which is the most that can be assumed for the defendants in error, the section provides that the selling or keeping for sale of intoxicating liquors within the territory mentioned is unlawful, denounces such selling or keeping for sale as a nuisance and imposes a fine f'or any violation of the provisions of the section. The only penalty prescribed by this ordinance for the violation of any of its provisions is a fine. The only-manner declared by the ordinance by which an abatement was sought or might result was the imposition of a fine. The trustees, by this ordinance, had not determined to abate the *541nuisance therein denounced by a destruction of the liquor. If the ordinance had provided that, upon conviction before the magistrate, the liquor should be seized and destroyed, an entirely different question would be presented and one upon which I express no opinion because it is not in this record.
When the defendant was charged in the magistrate’s court with selling and keeping for sale intoxicating liquors, it appears to me that he was sufficiently charged with maintaining a nuisance, for it was the selling or keeping for sale of liquor that was denounced as a nuisance and the declaration in the ordinance that it was a nuisance was conclusive on that point, as is amply sustained by the authorities cited above. The trial and judgment in the magistrate’s court was a judicial determination of the fact that he did maintain a nuisance, and the magistrate imposed a fine as provided in the ordinance. That is as far as the magistrate could go under that ordinance.
If the words not published, to-wit, “and may be abated as any other nuisance,” were a part of the ordinance, still the defendants would not be justified so far as this record is concerned, for no ordinance of the town of Akron was introduced showing that the board of trustees had elected to abate such a nuisance by the destruction of the property. The court would not be able, under such circumstances, to say that the nuisance was abated as any other nuisance.