(dissenting.)
I regret to differ in opinion with three brother judges, but my opinion is so decided that I am compelled to do so. The majority hold that equity has no jurisdiction under the statute involved in the case until after conviction upon indictment — -a position in which I can not unite. I hold that the words “upon conviction” apply only as a precedent condition to abatement upon indictment, not in equity.
In 1877 the legislature amended and re-enacted chapter 32 of the Code, regulating licenses, making sections 14 and *23515 read as follows : “(14) All houses, buildings and places of every description where intoxicating liquors are sold or vended contrary to law shall be held, taken, and deemed to be common and public nuisances, and may be abated as such upon conviction of the owner or keeper thereof, as hereinafter provided.”
(15) The owner of any house, building or other place mentioned in the next preceding section, who sells or knowingly permits intoxicating liquor to be sold or vended therein contrary to law, and every person engaged in any such unlawful sale in any such house, building or place, may be indicted for keeping and maintaining a common aud public nuisance, and upon conviction thereof he shall be fined not less than twenty nor more than one hundred dollars, and, at the discretion of the court, imprisoned in the county jail not less than ten nor more than thirty days; and judgment shall be given that such house, building or other place bo abated or closed up as a place for the sale of such liquors contrary to law, as the court may determine.”
Here buildings where intoxicating liquors are sold contrary to law are stamped as nuisances, and persons carrying on such nuisances are subjected to the personal punishment of fine and imprisonment, and remedy against such nuisance is made in a twofold character of personal punishment and abatement of the nuisance upon the conviction of the party, but both upon an indictment only, and no other remedy is prescribed.
In 1887, however, section 14 was amended by adding at its close the words, “and courts of equity shall have jurisdiction by injunction to restrain and abate any such nuis-auce upon bill filed by any citizen.” By this amendment equity is called into service as a remedy against the evil declared by the statute. How does it come into this service at the bidding of the legislature ? Hoes it come as a separate, independent, vigorous remedy, exercising the full powers it had' always exercised when dealing with public nuisances, or only as an ancillary or auxiliary remedy, powerless until conviction upon an indictment? The authorities which I shall cite will show that it comes in the former garb. Let me ask, *236why did the legislature call into requisition this additional remedy? Because after ten years’ experience it had found th e remedy by the tedious process of indictment,trial, and verdict of guilty, to be found by twelve men, inefficient and slow. "Why call in this additional remedy if it was to be only an-cilliary to the law jurisdiction ? The statute as it was before amendment gave the law-court ample power to abate the nuisance after conviction. It needed no aid from an injunction after conviction. The law jurisdiction could only abate after conviction ; but equity is by the statute given power to “restrain and abate” — to abate when the fact of the existence of the nuisance should be finally fixed according to equity practice, and in the meantime, pending the investigation, to restrain' it. This fact — that it need not await the final decision, but could act in restraint at once — is the reason the legislature had recourse to it, and a reason why we should not give it this secondary import. Aud we are to give to equity this subordinate role under a statute made to protect the public revenue, and the well-bring of society, and those who do pay license taxes for the privilege granted them, when that very statute declares that the provisions referred to “shall in all cases be construed as remedial, and not penalthat is, not rigidly, to the protection of the evil designed to be remedied, but liberally, so as to suppress the evil, and advance the remedies which the legislature directed against it.
The decision in this case emasculates the statute of its strength, and defeats the legislative design; and not only that, but it denies to equity the force it has always had under the general principles of equity jurisprudence when dealing with public nuisances. If it is true that equity for centuries has wielded an original independent jurisdiction as to public nuisances, may I not ask, can it possibly be conceived that the legislature’intended to lessen its efficacy? Rather did it not intend by express provision to declare the acts denounced nuisances, and to expressly apply the-remedy by injunction so as to leave no question as to jurisdiction, aud to widen its scope by putting that remedy into the hands of any citizen? Such are both the letter and spirit of the statute.
*237It is said that such a construction of the act, giving equity jurisdiction before conviction at law, deprives a party of a jury-trial, and is not due process of law. There are two answers to this. (1) An injunction is not a criminal prosecution. In the language of the opinion in Carleton v. Rugg, 149 Mass. 550 (22 N. E. Rep. 55) “the fallacy of the argument lies in disregarding the distinction between a proceeding to abate a nuisance, which looks only to the property that in the use made of it constitutes the nuisance, and a proceeding to punish the offender for the crime of maintaining a nuisance. These two proceedings are entirely unlike. The latter is conducted under the provision of the criminal law, and deals only with the person who has violated the law; the former is governed only by the rules which relate to property, and its only connection with persons is through property in which they may he interested. That which is declared by a valid statute to he a nuisance is deemed in law to he a nuisance in fact, and should he dealt with as such. The people, speaking through their representatives, have proclaimed it to be offensive and injurious to the public, and the law will not tolerate it. The fact that keeping a nuisance is a crime does not deprive a court of equity of the power to abate a nuisance. Attorney General v. Hunter, 1 Dev. Eq. 12; People v. City of St. Louis, 5 Gilman, 351; Ewell v. Greenwood, 26 Ia. 377; Minke v. Hopeman, 87 Ill. 450.” See Cherry v. Com., 78 Va. 375.
In Minke v. Hopeman, supra, it was held that they are so far distinct that an acquittal on an indictment for maintaining a nuisance will not bar equitable relief, and that equity need not wait until the fact of the nuisance be settled at law. (2) Ho jury right is violated, because equity has long had jurisdiction in public nuisance matters, and had it before our constitutions, and that mode of trial is unknown to equity. This doctrine, as well as other principles pertinent to this case, is well stated in the cases of Mugler v. Kansas, and Kansas v. Ziebold, quoted below; also in Kansas v. Crawford, 28 Kan. 726, citing many authorities. See, also opinion, page 515, in 25 W. Va., in Barlow v. Daniels. A Kansas statute provided that all places where intoxicating liquors'were sold in violation of *238the act should he deemed nuisances ; and upon judgment of any court having jurisdiction, finding such place to be a nuisance, the sheriff should be directed to shut up and abate the place by taking possession, and destroying all liquors there found, and that the owner should on conviction be guilty of maintaining a nuisance, and punished by fine and imprisonment; and the attorney-general, county-attorney, or any citizen was given the right to an action to abate or enjoin the same.
In the United States supreme court, in Kansas v. Ziebold, 123 U. S. 623 (8 Sup. Ct. Rep. 273) Mr. Justice Harlan, in delivering the opinion, said: “Equally untenable is the proposition that the proceedings in equity for the purposes indicated in the thirteenth section of the statute are inconsistent with due process of law. In regard to public nuisances, Mr. Justice StoRY says : ‘The jurisdiction of courts of equity seems to be of a very ancient date, and has been traced back distinctly to the reign of Queen Elizabeth. The jurisdiction is applicable not only to public nnisances, strictly so called, but also to purprestures upon public rights and property. * * * In ease of public nuisance, properly so called, an indictment lies to abate them, and to punish the offenders ; but an information also lies in equity to redress the grievance by way of injunction/ 2 Story, Eq. Jur. §§ 921, 922. The ground of this jurisdiction in cases of prepresture, as well as of public nuisances, is the ability of courts of equity to give a more speedy, effectual, and permanent remedy than can be had at law. They can not only prevent nuisances that are threatened, and before irreparable mischief ensues, but arrest or abate those in progress, and by perpetual injunction protect the public against them in future; whereas courts of law can only reach existing nuisances, leaving future acts to be the subject of new prosecutions or proceedings. This is a salutary jurisdiction, especially where a nuisance affects the health, morals, or safety of the community. Though not frequently exercised, the power undoubtedly exists in courts of equity thus to protect the public against injury. District Attorney v. Railroad Co., 16 Gray, 245; Attorney General v. Railroad Co., 3 N. J. Eq. 139; Attorney General v. Ice Co., *239104 Mass. 244; State v. Mobile, 5 Port. (Ala.) 279, 294; Hoole v. Attorney General, 22 Ala. 194; Attorney General v. Hunter, 1 Dev. Eq. 13; Attorney General v. Forbes, 2 Myl. & Cr. 123; Attorney General v. Railroad Co., 1 Dr. & Sm. 161; Eden, Inj. 259; Kerr, Inj. (2d Ed.) 168. As to the objection that the statute makes no provision for a jury trial in eases like this one, it is sufficient to say that such a mode of trial is not required in suits in equity to be brought to abate a public nuisance.”
That there is general equity jurisdiction as to publicnui-sanees has been recognized by our own courts. Beveridge v. Lacy, 3 Rand. (Va.) 63; Bridge Co., v. Summers, 13 W. Va. 484. That no jury right is invaded in such cases has also been held in Carleton v. Rugg, supra; Littleton v. Fritz, 65 Ia. 488 (22 N. W. Rep. 641); Kansas v. Crawford, 28 Kan. 726. In Eilenbecker v. District Court, 134 U. S. 31, (10 Sup. Ct. Rep. 424) Justice Miller said, as to the claim that the Iowa act gave equity jurisdiction, and thus took away trial by jury :
“So far as at present advised, it appears to us that all the powers of a court, whether at common law or in chancery, may be called into operation by the legislative body for the purpose of suppressing this objectionable traffic, and we know of no hindrance in the constitution of the United States to the form of proceeding, or to the court in which this remedy can be had. Certainly, it seems to us to be quite as wise to use the processes of the law and the powers of the court to prevent the evil as to punish the offense as a crime after it has been committed.”
That the legislature under its police power may constitutionally declare places where intoxicating liquors are sold contrary to law to be nuisances is abundantly settled. Mugler v. Kansas, and Kansas v. Ziebold, 123 U. S. 623 (8 Sup. Ct. Rep. 273); Fisher v. McGirr, 1 Gray, 1; State v. Thomas, 47 Conn. 546; McLaughlin v. State, 45 Ind. 338; State v. Waynick, 45 Ia. 516; Streetor v. People, 69 Ill. 595; Bish. St. Crimes, § 1068.
And outside the statute it seems that by common-law a building where sales of liquor are habitually made contrary to law is a public nuisance. Bish. St. Crimes, § 1068; *240Howard v. State, 6 Ind. 444; Meyer v. State, 42 N. J. Law, 145; Meyer v. State, 41 N. J. Law, 6; Kansas v. Crawford, 28 Kan. 726.
It is true tliat though equity has jurisdiction against public nuisances, yet, to enable a private individual to call it into exercise, he must show that the nuisance works a special and peculiar injury to him. Beveridge v. Lacy, 3 Rand (Va.) 63; Bridge Co. v. Summers, 13 W. Va. 484; Talbott v. King, 32 W. Va. 6 (9 S. E. Rep. 48.) But the statute changes that general rule as to this particular class of cases, as it declares that any citizen may obtain an injunction. The legislature may authorize any citizen to sue to abate a public nuisance. The citizen in such case represents the public. Littleton v. Fritz, 65 Ia. 488 (22 N. W. Rep. 641); Carleton v. Rugg, 22 N. E. Rep. 55; Applegate v. Winebrenner, 96 Ia. 67 (23 N. W. Rep. 267).
I have discussed only the question of equity jurisdiction. I do not express any opinion as to what quantity of selling is necessary, or whether the selling must be done habitually, to make a place a nuisance.
BeveRSed. Bill Dismissed.