The petitioners have applied for a rehearing and have urged as a ground for the rehearing the fact that the opinion of this court did not follow the argument of either of the parties and for that reason the petitioners had not had the opportunity or occasion to present the considerations opposed to the view announced by this court in its opinion. If the contentions advanced by the petitioners in their attack upon the opinion were sufficient to create a doubt in the mind of this court as to the correctness of its conclusion, we would, of course, under the circumstances grant a rehearing. Most of the reasons advanced by the petition for a rehearing were given due consideration in arriving at the conclusion announced in our decision.
In their petition for a rehearing the decision rendered by this court in October, 1922 (Carse v. Marsh, 189 Cal. 743 [210 P. 257]), is not discussed nor is it mentioned except in a quotation from our opinion in which that case is cited. In that case we held that the trial court had jurisdiction to punish for contempt for a violation of an injunction issued in an abatement proceeding brought in this state by the district attorney in the superior court of San Diego County in the name of the United States of America to abate an illegal liquor-selling place. This decision was based upon the proposition that the state constitution vested jurisdiction in the superior court to abate nuisances and that the Congress of the United States having declared places for the illegal sale of liquor to be nuisances, the jurisdiction to abate the same was vested in the superior court without regard to any local legislation expressly conferring jurisdiction on such court or fixing the procedure therein. We did not in that *Page 39 case overlook the state statute (Stats. 1915, p. 236) expressly conferring such jurisdiction, nor did we there deal with the procedure in such cases for the reason that the sole question presented by the petitioner in that case was as to the jurisdiction of the superior court to entertain an action to abate such illegal liquor-selling place.
Due consideration of the decision in the case ofCarse v. Marsh, supra, will answer some of the points advanced by the petitioners as a ground for a rehearing in this case. For instance, the jurisdiction to abate a nuisance is not derived from the state statute but from the constitution. This jurisdiction, we held in the case of Carse v. Marsh, supra, was vested in the superior court without any state legislation whatever. Such jurisdiction being thus vested by the constitution itself, could not be taken away even by an express statutory provision attempting so to do. We are satisfied with the discussion in our opinion upon the subject of the effect of the failure to give notice to the property holder that his property was being used as an illegal liquor-selling place.
The petitioners insist that the effect of our decision is to determine that Congress can amend a state statute. Of course, we announced no such conclusion. We merely called attention to the fact that it was held in the case of Carse v. Marsh, supra, that the district attorney could bring an abatement proceeding in the name of the United States of America, and that under our own statute he was authorized to bring such a proceeding in the name of the people of the state of California (Stats. 1915, p. 236, supra). We then held, as contended by the petitioners, that the procedure in the action to abate the nuisance was determined by the state law instead of being governed by the Volstead Act, thus in effect agreeing with the petitioners that whether the proceeding was instituted in the name of the United States of America or in the name of the people of the state of California, the procedure in the action was controlled by the state law, we differed with petitioners only in finding that procedure in the act of 1915 (Stats. 1915, p. 236, supra), instead of in the Code of Civil Procedure (sec. 527, Code Civ. Proc.).
*Page 40The petition for a rehearing is denied.