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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 ourselve; 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. 317 :

The same objection was raised on behali 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 reaffirme: 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. IIobart, 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."

“(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

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 inl abitants, 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 consequently makes it a less desirable place to live in. Property rights are directly

66

affected when the nuisance is of such a the Court felt that that remedy was wholly character that extra police must be em- inadequate. ployed to prevent breaches of the peace.” State, ex rel., v. Canty, 207 Mo. 439; 15

We believe it clear that should a riot L. R A., n. s., 747 : occur as a result of a masked parade, in This was an action brought by the atKansas, the city in which the riot occurred | torney general of Missouri, seeking to enwould be liable in damages to any person join certain parties from holding in St. injured therein (see Ch. 79, Laws of Kan-Louis County a bull fight. The bull-fightsas, 1923), and the damages assessed ing arena and bull fighting was held to be against the city would of necessity be paid a public nuisance, and a perpetual injuncby all the taxpayers, and each taxpayer, tion was granted. In the opinion, delivered therefore, has a direct financial interest in by Justice Woodson, the Court said: the prevention of disorder, and has a direct “(Syl. 2.) A bull-fighting arena may property right in the maintenance of peac? be abated, and bull fighting perpetually and the preservation of order. Further enjoined as a public nuisance, injurious quoting from the opinion :

to public safety and good morals, not

withstanding the fact that the offenders “Equity, even as administered by courts of equity, involves much of that

are punishable in criminal courts, or the which its name ordinarily implies. Th

fact that property rights of the comjurisdiction of its courts had its founda

plainants are not involved." tion in natural justice and was developed

The Court, in approaching the question from time to time to meet cases as they

under consideration, summarized the quesarose, when the law, through its rigid tions presented in this way: rules, worked injustice or afforded no “First, is a bull fight, such as the one remedy or was inadequate."

described by the evidence, a common

or public nuisance within the meaning "The most efficient, humane and flexi

of the law. ble remedy is that of injunction. Under this form the Court can prevent that

“Second, if so, has a court of equity

jurisdiction to interfere by injunction from being done which done would cause a nuisance; it can command an observ.

and prevent it or should the State be

driven to the criminal law for redress?" ance of peace before it is broken ; it can

Page 755: save suffering and sometimes disgrace to

** The contention of respondents that a those who are in no way responsible; in

court of equity has no jurisdiction to some instances, and I believe this case

abate a public nuisance where the of. presents one of them, it can secure an

fenders are amenable to the criminal obedience to the laws of the country that

laws of the State is not tenable.” (Cita court of law, pursuing the other rem

ing authorities.) edy, could not do."

Page 756 : It should be stated, with further refer- “A court of equity will not undertake ence to this case, that prize fighting was a to enforce the criminal law. Therefore, felony in Ohio, and it was vigorously con- it will not enjoin the commission of a tended by the defendant that the State threatened act merely because the act should wait until the prize fight took place, would be a crime, but, on the other hand, and then arrest the participants, charge neither will it withold its cquitable rethem with felony and prosecute them on the lief in a case in which, for other reasons, law side of the court. From the few quo. it has jurisdiction, merely because the tations given, however, it will be clear that act, when committed, would be a crime."

men.

"A man charged with the commission an adequate remedy at law by reason of of a crime has a constitutional right to a

the criminal statute which we have pretrial by jury; but a man who has not

viously cited. The State claims this remyet acted, but who merely proposes to

edy to be woefully inadequate. It may be

. commit an act which is not only criminal suggested that the State should permit the in its character, but also flagrantly of parade to take place and then arrest and fensive as a public nuisance, has no con

prosecute the paraders. stitutional right to commit the act in In order for that to be done, the sheriff order that he may thereafter enjoy the must arrest without a warrant, for by reaconstitutional right of trial by jury." son of the concealment of identity a proper

Our Kansas statute on this subject reads complaint cannot be sworn to either before, as follows:

during or after the parade. Those the “An injunction may be granted in

State might seek to arrest are masked and the name of the State to enjoin and sup

unknown. It is a significant fact that when press the keeping and maintaining of a

the State sought to bring this action it common nuisance."

could name but one of the several hundred Section 7163, Kansas Statutes, 1915.

individuals who might properly have been "The function generally of the injunc

parties defendant. tive mandate is to afford protective re

In addition, such

a course of action lief and not redress for wrongs already

would require the arrest of many hundred committed. Its power is exercised not

Such a task is difficult and likely to for the purpose of punishing a person

lead to disorder. One sheriff in Texas who for some wrongful act which he has attempted to stop such a masked parade committed, but rather to prevent the do

was seriously injured in the disorder that ing of such an act to the injury of an

followed. It would further entail numer

ous prosecutions, and equity has always 14 Ruling Case Law, Inj., sec, 7.

sought to avoid a multiplicity of lawsuits,

either civil or criminal. We will forbear quoting further law on this subject, as it is admirably briefed in

Further, it may be said that it is the the several cases referred to and in the contemplated injury to public safety, pubfollowing:

lic welfare and public peace that the State Ky. v. McGovern et al., 66 L. R. A. 2807. seeks to protect.

seeks to protect. Once it is violated, no In re Debbs, 158 U. S. 597.

amount of criminal prosecutions can comUnited States v. Railway Employees pensate the State or its people for the (Dougherty strike injunction), 283 Fed.

wrong done. The legal remedy, therefore, 479.

is wholly inadequate, and indeed may Having thus disposed of the main ques

scarce be said to exist. tions presented, we feel it proper and ad- 5. WHAT BEARING, IF ANY, HAS THE DEvisable to briefly touch on several minor FENDANTS' MOTIVE IN PARADING IN MASK? questions that may arise in the mind of

We have never been able to learn one the Court or be suggested by counsel for

logical reason for the masked parade. the defendant.

Such members of this organization as we 4. HAS THE STATE AN ADEQUATE REMEDY have been privileged to talk to have said AT LAW ?

they paraded in public, “in order to im. It may be said that if the act of parad- press the people with our strength. ing in mask as set out in the petition is a The strength of any organization is not disturbance of the peace, the State has in the quantity of its members, but in the

other."

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quality thereof. That is even true of We have discussed this question as fully armies. Much more is it true of fraternal as the limited space and time at our disorganizations. An organization acquires posal would permit, for the reason that it strength not through the clothing of its is a question of vital importance to the members, but through their character. welfare of the State and its people. While

The mask is not needed for the advocacy there are no cases directly in point, and of good principles. The logical effect and while this is the first attempt to enjoin the purpose of the mask is to frighten and such a parade, we feel that there is abunintimidate. It has always been the mark dant precedent for the action. This action of the marauder and has never been used is the only adequate relief that the State to cover honest men on an honest purpose has, and courts of equity were created to bent. Its public use by this organization afford relief under just such circumstances. permits the criminal class to commit depre- Ours has been called a “government by indations in their name. It opens the way junction," due to the increasing use of the for the "wolf in sheep's clothing," if we injunctive remedy. While the term has may be pardoned for likening this awe- been applied in scorn, we feel that that apinspiring and mystic robe and mask to the pellation is not to our discredit. The influffy covering of that placid, peaceful junctive remedy affords a simpler, cheaper, animal.

quicker and more adequate relief than any It may be said that their purpose in

other. It provides an orderly means of wearing this mask is lawful and commend disposing of a disputed point and obviates able. To that we answer that the public the commission of a criminal act and a redoes not so consider it and the history of sulting criminal prosecution. It has to the Knights of the Ku Klux Klan supports recommend it even more good points and the public view. As to whether their pur

sound logic than the “declaratory judgpose, or the purpose assigned by the so-ment,” provided for to settle civil disputes called "alien" public, meaning all who are

before the injury is occasioned or the damnot citizens of the “Invisible Empire” and followers of the "Imperial Wizard,” is to

It may not be improper to call attention govern, we wish to cite these few author

to the result of the decision in this matter. ities :

Should the injunction be granted it will “In determining whether or not a nui- merely deny to these defendants, and sance has been committed, the motive others, the right to parade in public in or intent with which the defendant did mask. Should the desire to parade in mask the act complained of will not be con

be irresistible, the defendants may gratify sidered."

that desire and cater to that propensity Joyce, Nuisances, page 77.

within the confines of their “Klavern" or “It is not in this case so much a mere

in any private place. The injunction will academic inquiry as to whether the dis

not in any measure interfere with their ease is in fact highly or remotely con

right to parade in mask in private, or with tagious, but the question is, whether, their right to parade in public unmasked. viewed as it is by the people generally, It will only take from them the privilege its introduction into a neighborhood is they claim of parading in masks in public, calculated to do serious injury."

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 4 A. L. R. 990.

State."

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ANNOTATED CASE

merce.

INTERSTATE COMMERCE-EMPLOYEE

WORKING ON RIGHT OF WAY

QUIRK V. ERIE R. CO.

139 N. E. 556

(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.

con

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 growths and rubbish. At 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 tinuing 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.

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

"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.

NOTEEmployee Removing Scrap from interstate Tracks, and Cutting Grass On or Vear 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.

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