bar in the maintenance of an equitable action to enjoin the nuisance." The State, ex rel., v. Howat, 109 Kan. 376: This case, decided in 1921, is probably the leading case on this subject in Kansas, and in an exhaustive opinion Judge Burch discusses the power of a court of equity to enjoin a threatened offense against the criminal laws. We will content ourselves with merely quoting from the syllabus this statement: "3. The injunction order was not invalid as an attempt to enjoin the commission of crime." The State, ex rel., v. Industrial Workers of the World, 113 Kan. 347: The same objection was raised on behalf of the defendant in this case, and it was urged that a court of equity has no power to enforce a criminal statute by injunctive order. The Court in this case reaffirmed its stand taken in the Howat case, and held that the petition stated a cause of action as against the objection that a court of equity has no power to enforce a criminal statute by injunctive order. State of Ohio, ex rel., v. Hobart, Ohio N. P. Rep. 246: The opinion in the above case, which, unfortunately, is not reported in any other volume than the one cited, and is, there fore, not accessible to the bar in general, is one of the clearest and ablest opinions on this subject that we have been permitted to read. This was an action brought by the attorney general of the State of Ohio to enjoin a contemplated prize fight between Jeffries and Ruhlin. The opinion is so able that it should be quoted in full, but we will content ourselves with these few extracts from it: "(Syl. 4.) All such affairs when held in public are common nuisances. They make a man's place of habitation less desirable to live in." 66 (Syl. 5.) Such contests, with their attendant evils, affect a man's comfort and welfare. They may interrupt and prevent the common enjoyment of life and the peaceful pursuit of happiness, which are among every man's inalienable rights guaranteed him by the Constitution, and to secure which, with other things, governments are established among men.” "(Syl. 6.) A court of equity takes cognizance of these things, and when a threatened act, although a crime, is with its attendant circumstances also a public nuisance, will, when the apprehended injury is irreparable, and there is for it no adequate remedy at law, prevent its execution by injunction." "(Syl. 7.) The state is interested in the enjoyment of life, the happiness, the health, the comfort, the safety, the morals and the well-being of its inlabitants, and its courts are open to it, on the relation of its attorney general, to prevent the infringement of these rights by any public nuisance. If the law is inadequate, or gives no remedy, the courts exercising equity jurisdiction will afford relief." "(Syl. 8.) It is not essential that any property rights be involved in order that a court of equity may take cognizance of a public nuisance. The enjoyment of life, the happiness, the health, the comfort, the morals, the safety and the wellbeing of the inhabitants of a State are of more importance to them and to it than any property or mere money interests they or it can possibly have; and the right to these has at least the same constitutional guarantees that the right of property has." "(Syl. 9.) Indirectly, property rights are involved in a public nuisance which lowers the moral tone of a community, gives it a bad reputation, and conse quently makes it a less desirable place to live in. Property rights are directly affected when the nuisance is of such a character that extra police must be employed to prevent breaches of the peace." We believe it clear that should a riot occur as a result of a masked parade, in Kansas, the city in which the riot occurred would be liable in damages to any person injured therein (see Ch. 79, Laws of Kansas, 1923), and the damages assessed against the city would of necessity be paid by all the taxpayers, and each taxpayer, therefore, has a direct financial interest in the prevention of disorder, and has a direct property right in the maintenance of peace and the preservation of order. Further quoting from the opinion: "Equity, even as administered by courts of equity, involves much of that which its name ordinarily implies. The jurisdiction of its courts had its foundation in natural justice and was developed from time to time to meet cases as they arose, when the law, through its rigid rules, worked injustice or afforded no remedy or was inadequate." "The most efficient, humane and flexible remedy is that of injunction. Under this form the Court can prevent that from being done which done would cause a nuisance; it can command an observance of peace before it is broken; it can save suffering and sometimes disgrace to those who are in no way responsible; in some instances, and I believe this case presents one of them, it can secure an obedience to the laws of the country that a court of law, pursuing the other remedy, could not do." It should be stated, with further reference to this case, that prize fighting was a felony in Ohio, and it was vigorously contended by the defendant that the State. should wait until the prize fight took place, and then arrest the participants, charge them with felony and prosecute them on the law side of the ecurt. From the few quotations given, however, it will be clear that the Court felt that that remedy was wholly inadequate. State, ex rel., v. Canty, 207 Mo. 439; 15 L. R. A., n. s., 747: This was an action brought by the attorney general of Missouri, seeking to enjoin certain parties from holding in St. Louis County a bull fight. The bull-fighting arena and bull fighting was held to be a public nuisance, and a perpetual injunction was granted. In the opinion, delivered by Justice Woodson, the Court said: "(Syl. 2.) A bull-fighting arena may be abated, and bull fighting perpetually enjoined as a public nuisance, injurious to public safety and good morals, notwithstanding the fact that the offenders. are punishable in criminal courts, or the fact that property rights of the complainants are not involved." The Court, in approaching the question under consideration, summarized the questions presented in this way: "First, is a bull fight, such as the one described by the evidence, a common or public nuisance within the meaning. of the law. "Second, if so, has a court of equity jurisdiction to interfere by injunction and prevent it or should the State be driven to the criminal law for redress?" Page 755: "The contention of respondents that a court of equity has no jurisdiction to abate a public nuisance where the of fenders are amenable to the criminal laws of the State is not tenable." (Citing authorities.) Page 756: "A court of equity will not undertake to enforce the criminal law. Therefore, it will not enjoin the commission of a threatened act merely because the act would be a crime, but, on the other hand, neither will it withold its equitable relief in a case in which, for other reasons, it has jurisdiction, merely because the act, when committed, would be a crime." "A man charged with the commission of a crime has a constitutional right to a trial by jury; but a man who has not yet acted, but who merely proposes to commit an act which is not only criminal in its character, but also flagrantly of fensive as a public nuisance, has no constitutional right to commit the act in order that he may thereafter enjoy the constitutional right of trial by jury." Our Kansas statute on this subject reads as follows: "An injunction may be granted in the name of the State to enjoin and suppress the keeping and maintaining of a common nuisance." Section 7163, Kansas Statutes, 1915. "The function generally of the injunetive mandate is to afford protective relief and not redress for wrongs already committed. Its power is exercised not for the purpose of punishing a person for some wrongful act which he has committed, but rather to prevent the doing of such an act to the injury of another." 14 Ruling Case Law, Inj., sec. 7. We will forbear quoting further law on this subject, as it is admirably briefed in the several cases referred to and in the following: Ky. v. McGovern et al., 66 L. R. A. 2807. In re Debbs, 158 U. S. 597. United States v. Railway Employees (Dougherty strike injunction), 283 Fed. an adequate remedy at law by reason of the criminal statute which we have previously cited. The State claims this remedy to be woefully inadequate. It may be suggested that the State should permit the parade to take place and then arrest and prosecute the paraders. In order for that to be done, the sheriff must arrest without a warrant, for by reason of the concealment of identity a proper complaint cannot be sworn to either before, during or after the parade. Those the State might seek to arrest are masked and unknown. It is a significant fact that when the State sought to bring this action it could name but one of the several hundred individuals who might properly have been parties defendant. In addition, such a course of action would require the arrest of many hundred men. Such a task is difficult and likely to lead to disorder. One sheriff in Texas who attempted to stop such a masked parade was seriously injured in the disorder that followed. It would further entail numerous prosecutions, and equity has always sought to avoid a multiplicity of lawsuits. either civil or criminal. Further, it may be said that it is the contemplated injury to public safety, public welfare and public peace that the State seeks to protect. Once it is violated, no amount of criminal prosecutions can com pensate the State or its people for the wrong done. The legal remedy, therefore. is wholly inadequate, and indeed may scarce be said to exist. quality thereof. That is even true of armies. Much more is it true of fraternal organizations. An organization acquires strength not through the clothing of its members, but through their character. The mask is not needed for the advocacy of good principles. The logical effect and the purpose of the mask is to frighten and intimidate. It has always been the mark of the marauder and has never been used to cover honest men on an honest purpose bent. Its public use by this organization permits the criminal class to commit depredations in their name. It opens the way for the "wolf in sheep's clothing," if we may be pardoned for likening this aweinspiring and mystic robe and mask to the fluffy covering of that placid, peaceful animal. It may be said that their purpose in wearing this mask is lawful and commendable. To that we answer that the public does not so consider it and the history of the Knights of the Ku Klux Klan supports the public view. As to whether their purpose, or the purpose assigned by the socalled "alien" public, meaning all who are not citizens of the "Invisible Empire" and followers of the "Imperial Wizard," is to govern, we wish to cite these few authorities: "In determining whether or not a nuisance has been committed, the motive or intent with which the defendant did the act complained of will not be considered." Joyce, Nuisances, page 77. We have discussed this question as fully as the limited space and time at our disposal would permit, for the reason that it is a question of vital importance to the welfare of the State and its people. While there are no cases directly in point, and while this is the first attempt to enjoin such a parade, we feel that there is abundant precedent for the action. This action is the only adequate relief that the State has, and courts of equity were created to afford relief under just such circumstances. Ours has been called a "government by injunction," due to the increasing use of the injunctive remedy. While the term has been applied in scorn, we feel that that appellation is not to our discredit. The injunctive remedy affords a simpler, cheaper, quicker and more adequate relief than any other. It provides an orderly means of disposing of a disputed point and obviates the commission of a criminal act and a resulting criminal prosecution. It has to recommend it even more good points and sound logic than the "declaratory judgment," provided for to settle civil disputes before the injury is occasioned or the damage done. It may not be improper to call attention to the result of the decision in this matter. Should the injunction be granted it will merely deny to these defendants, and others, the right to parade in public in mask. Should the desire to parade in mask be irresistible, the defendants may gratify that desire and cater to that propensity within the confines of their "Klavern" or in any private place. The injunction will not in any measure interfere with their right to parade in mask in private, or with their right to parade in public unmasked. It will only take from them the privilege they claim of parading in masks in public, and that privilege they should not be per87 Md. 352, quoted with approval in mitted to assert in the interest of public Statler v. Roschelle, 83 Kan. 86. safety, public welfare and in the preservaBerchard v. Board of Health (Mich.), tion of the "peace and dignity of the "It is not in this case so much a mere academic inquiry as to whether the disease is in fact highly or remotely contagious, but the question is, whether, viewed as it is by the people generally, its introduction into a neighborhood is calculated to do serious injury." ANNOTATED CASE INTERSTATE COMMERCE EMPLOYEE QUIRK v. ERIE R. CO. (Court of Appeals of N. Y., April 17, 1923) A track laborer, in the yard of an interstate railroad, employed to cut grass and weeds growing near the track and to pick spikes and drawheads, which often dropped out of cars, his service being single and entire, is engaged in interstate commerce. Proceedings under the Workmen's Compensation Law (Consol. Laws, c. 67) before the State Industrial Board, by Matthew Quirk, claimant, against the Erie Railroad Company, employer and self-insurer. From an order of the Appellate Division (203 App. Div. 347, 196 N. Y. Supp. 580) affirming by a divided court an award of the State Industrial Board, in favor of claimant, employer appeals. Reversed, and claim dismissed. F. J. Meagher, of Binghamton, for appellant. Carl Sherman, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for respondent. CARDOZO, J. The claimant was employed by the Erie Railroad Company, an interstate line, as a track laborer in the railroad yards at Deposit, N. Y. His duty, as described in his own testimony, was to clean up the yard. He cut the grass and weeds found growing near the tracks. He picked up spikes and drawheads, which often dropped out of the cars, as well as chunks of coal and ashes. The chief reason for removing grass and weeds was to make the grounds neat and attractive in appearance. Plass v. C. N. E. Ry. Co., 226 N. Y. 449, 123 N. E. 852. The chief reason for picking up "scrap" was to guard against derailment. This appears by the testimony of the claimant himself. A drawhead, he says, might cause a wreck. The like appears by the testi-. mony of others a superintendent and a foreman. There was danger, they tell us, not only in the presence of drawheads, but in accumulated coal and clinkers. Switchmen making up trains would stumble and fall. The protection of travelers and workmen was the prime consideration. So the employer's witnesses assert. There is nothing to the contrary. The claimant, while thus working on a track, was hit by a rod projecting from a passing car. We think he was engaged in interstate com merce. There is no dispute that this would be true if at the moment of the accident he had been picking up a bolt or anything that would be a source of danger. The argument is, however, that he was brought within another orbit because the last thing that he did was to pluck some grass and weeds. We think this involves an undue subdivision of a service which in reality was single and entire. The claimant was employed generally to pick up At growths and rubbish. one moment he would be stooping to uproot an unsightly weed. At another he would be stooping to remove a perilous obstruction. His duty was a continuing one to be on the watch for things of danger. It was not broken and interrupted from one moment to another as this object or that came forward in the field of vision. His position in this respect is like that of a watchman in a signal tower, who is in interstate commerce whenever on the watch. Erie R. R. Co. v. Collins, 253 U S. 77, 40 Sup. Ct. 450, 64 L. Ed. 790; Erie R. R. Co. v. Szary, 253 U. S. 86, 40 Sup. Ct 454, 64 L. Ed. 794. It is like that of the laborer who removes snow from the tracks or from adjoining spaces for the protection of the roadbed. N. Y. Central R. R. v. Porter, 249 U. S. 168, 39 Sup. Ct. 188, 63 L. Ed. 536. "The service of a flagman concerns the safety of both commerces and to separate his duties by moments of time or particular incidents of its exertion would be to destroy its unity and commit it to confusing controversies." Philadelphia & Reading Ry. Co. v. DiDonato, 256 U. S. 327, 331, 41 Sup. Ct. 516, 518 (65 L. Ed. 955). The order of the Appellate Division and the award of the State Industrial Board should be reversed, and the claim dismissed, with costs against the said Board in all courts. HISCOCK, C. J., and. HOGAN, POUND, MCLAUGHLIN, CRANE, and ANDREWS, JJ., concur. NOTE-Employee Removing Scrap from Interstate Tracks, and Cutting Grass On or Near Tracks, Engaged in Interstate Commerce.-The Court of Appeals, as will be noticed, reversed the holding of the lower court in the same cise. A note of the lower court's decision appears in 96 C. L. J. 58, where a portion of the court's opinion is quoted. |