delivered the opinion of the court.
A complaint was filed in the district court of Park county, which charged that defendant Hart, the lessee in possession of a rooming-house in Livingston, with the knowledge and consent of defendant Mercier, the owner of the property, was maintaining the premises as a place where intoxicating liquors were kept for sale and sold in violation of law. After issues were joined the cause was tried to the court without a jury, resulting in a judgment which declared the place to be a common nuisance and enjoined the defendants from using it or permitting it to be used for the purpose of keeping or selling intoxicating liquors in violation of law. By the judgment the sheriff was directed to abate the nuisance by closing the place and keeping it closed “until released in the manner provided by law.” The appeal is from the judgment.
Section 11066, Revised Codes, declares that any house where intoxicating liquors are manufactured, sold, kept or bartered in violation of law is a common nuisance. Section 11067 provides that an action may be prosecuted to enjoin such a nuisance, and that “such action shall be brought and tried as an action in equity.”
1. Notwithstanding the terms of this statute, defendants in- sist that they were entitled to have a jury determine the question of the existence of a nuisance. The contention cannot *335■be sustained. The right of trial by jury, guaranteed by section 23, Article III, of our state Constitution, is the right as it existed at the time the Constitution was adopted (Cunningham v. Northwestern Improvement Co., 44 Mont. 180, 119 Pac. 554), and at that time the right was exactly the same as the right secured by the seventh amendment of the Constitution of the United States (Montana Ore Pur. Co. v. Boston & Montana Con. C. & S. Min. Co., 27 Mont. 536, 71 Pac. 1005). Nearly forty years ago, and prior to the adoption of our state Constitution, the supreme court of the United States held that a statute similar in its provisions to our sections 11066 and 11067, above, did not impinge upon the provisions of the seventh amendment, and that in a proceeding of this character the defendant was not entitled to a jury trial. (Mugler v. Kansas, 123 U. S. 623, 31 L. Ed. 205, 8 Sup. Ct. Rep. 273 [see, also, Rose’s U. S. Notes].) The doctrine of that case has been followed generally by the courts of this country.
Counsel for defendants err in assuming that the decision in Chessman v. Hale, 31 Mont. 577, 3 Ann. Cas. 1038, 68 L. R. A. 410, 79 Pac. 254, conflicts in the least with the rule just stated. In Chessman v. Hale it was charged that the defendant was maintaining a private nuisance in that he had caused tailings from his mining operations to be carried on to plaintiff’s land and threatened to continue the trespasses. The purpose of that action was to recover damages for the trespasses, and as an incident to the principal relief an injunction was sought to restrain the continuance of the nuisance. The purpose of the present action is to restrain the defendants from maintaining a public nuisance; damages are not sought and are not recoverable. These rules are stated aptly in 20 R. C. L. 484, as follows: “In some of the decisions it is held that, under a constitutional provision, securing the right 'of trial by jury, the plaintiff in an action to recover damages for a nuisance is entitled as of right to have a trial by jury of the questions as to the existence of the nuisance and the damages recoverable *336therefor, even though he seeks in the same action to enjoin the continuance of the nuisance. * * * In the case of public nuisances, where the application is for an injunction only, no damages being demanded, it seems to be settled that constitutional guaranties do not require a trial by jury.”
2. Section 11067, above, provides that if the court finds that a particular place is a common nuisance within the definition given in section 11066, it may order that the place shall not be occupied or used for one year thereafter. Counsel for defendants contend that this section is invalid in so far as it authorizes a place to be closed against lawful use, but they have not cited any authority to sustain their position. The provisions of section 11067 are substantially the same as those found in section 22 of the Volstead Act (41 Stat. 314 [Comp. Stats. Ann. Supp. 1923, sec. 10138%k]), and the provisions of the Volstead Act have 'been enforced without question, so far as our inquiry goes, since the decision in National Prohibition Cases, 253 U. S. 350, 64 L. Ed. 946, 40 Sup. Ct. Rep. 468, 588. (See, also, United States v. Reisenweber (C. C. A.), 288 Fed. 520.)
3. Error is predicated upon the ruling of the trial court permitting the state to introduce evidence that the general reputation of the -boarding-house was that of a place where intoxicating liquors were kept and sold illegally. The overwhelming weight of authority sustains the ruling. (State v. Hendricks, 15 Mont. 194, 48 Am. St. Rep. 666, 39 Pac. 93; Demartini v. Anderson, 127 Cal. 33, 59 Pac. 207; People v. Macy, 43 Cal. App. 481, 184 Pac. 1008; Pastime v. State, 138 Tenn. 315, 197 S. W. 1089; Ward v. State, 15 Okl. Cr. 150, 175 Pac. 557; Ryan v. United States (C. C. A.), 285 Fed. 734; 33 C. J. 698; Blakemore on Prohibition, 248.)
4. It is urged that the evidence is insufficient to sustain the finding that the place in question is a common nuisance. In addition to the evidence of general reputation, the state, introduced the testimony of one D. H. Abbott to the effect that *337on June 6, 1923, he and James Angus visited the place in question and then and there purchased from defendant Hart four drinks of moonshine liquor. ¥e reaffirm what was said in State v. Jenkins, 66 Mont. 359, 213 Pac. 590; but we are satisfied that the evidence produced in this case is ample to meet the requirements of the rule there announced. (McMillan v. Sumner, 190 Iowa, 1108, 181 N. W. 464; Ward v. State, above.) In the case last cited it is said: “The reputation of the place as one where intoxicating liquors are kept for sale is an asset of trade, and as much a substantial element of the intent of the person who keeps liquors in such a place as is evidence that the place was fitted up with a bar and other fixtures and appurtenances of a liquor saloon. Intent to sell is as much an element of the offense of unlawful possession under our statute as is the intent to sell where the offense charged is the keeping and maintaining of a place where intoxicating liquors are received and kept for the purpose of sale.”
5. In oral argument counsel for defendants contended that the judgment herein does not conform to the provisions of the statute. Section 11067 provides: “And upon judgment of the court ordering such nuisance to be abated, the court may order that the room, house, building, structure, boat, vehicle, or place shall not be occupied or used for one year thereafter; but the court may, in its discretion, permit it to be occupied or used if the owner, lessee, tenant, or occupant thereof shall give bond with sufficient surety, to be approved by the court making the order, in the penal and liquidated sum of not less than five hundred dollars nor more than one thousand dollars, payable to the state of Montana, and conditioned that intoxicating liquor will not thereafter be manufactured, sold, bartered, kept, or otherwise disposed of therein or thereon, and that he will pay all fines, costs, and damages that may be assessed for any violation of this Act upon said property.”
*338Viewed in the light of this statute, the judgment must be construed to mean that the premises in question shall not be occupied or used for one year, unless the court shall sooner permit them to be occupied or used. Thus construed, the judgment is unobjectionable, and is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Cooper and Stark concur.