State v. Murphy , 71 Vt. 127 ( 1898 )

Taft, J.

This is aproceedingin equity under the provisions of Y. S. c. 187, to abate a nuisance. Y. S. 4512 makes certain places where intoxicating liquor is sold, furnished or given away, or kept for that purpose, a common nuisance and requires that the same shall be abated or enjoined as afterwards provided. Sections 4524-6 provide that an action may be prosecuted in the court of chancery, to abate and perpetually enjoin the same, and that any person violating the terms of an injunction granted in such proceedings shall be punished as for contempt byline or imprisonment or both. A subsequent provision authorizes a temporary injunction, if the chancellor is satisfied that a nuisance actually exists or is being maintained.

This proceeding is to abate the nuisance described in the complaint, and the complaint is met with a general demurrer. That the premises described in the complaint are a public nuisance is admitted by the demurrer.

The first point made is that the court of chancery has no jurisdiction to abate a public nuisance. Whether equity has such power depends upon the authority given the legislature by the constitution of this State to create a court of chancery. There was no power given the legislature by the first constitution of this State to create one. Certain equity powers were given the common law courts. Chap. II., § 21. Upon the revision of the constitution in 1786 an amendment was added in these words, being § 5, chap. II.: “A future legislature may, when they shall consider the same to be expedient and necessary, erect a court of chancery with such powers as are usually exercised by that court or as shall appear for the interest of the commonwealth, — provided they do not constitute themselves the judges of the said court.” This provision has remained intact until the present time. The legislature by the constitution of 1786 was thus authorized to erect “a court of chancery with such powers as are usually exercised by that court.” It may be conceded as contended by respondent’s counsel that at the time of the adoption of the constitution in 1786 a court of chancery did not have, and had not prior to that time exercised, the power to abate a public nuisance. It is unnecessary to pass upon that question, for that power is given in the succeeding clause in which it is expressly stated that a court of chancery may be erected with such powers as are above stated and “as shall appear for the interest of the commonwealth.” Under this clause the legislature is authorized to establish a court of chancery, and can endow it with power to abate a public nuisance if it appears that it is for the interest of the commonweal. If it has power to abate a public nuisance, it has power to enjoin its commission and its maintenance.

The violation of an injunction constitutes a familiar instance of contempt. It may be laid down as a general rule that when the court has jurisdiction of the parties, and the original power to grant the injunction, its violation is a contempt of the court which issued it. The power of a court to make an order carries with it the equal power to punish for the disobedience of the order.

The respondent contends that the statute is in conflict with provisions of the constitution of this State, particularly Article X. of the declaration of rights, which provides, “That in all prosecutions for criminal offences, a person hath a right to ... a speedy public trial by an impartial jury of his country; . . . nor can any person be justly deprived of his liberty, except by the laws of the land, or the judgment of his peers.” This claim is made, disregarding the distinction between a proceeding to abate a nuisance, which relates simply to the property which in its use constitutes the nuisance, and a prosecution of the respondent for the crime of maintaining it. The proceedings are different. A proceeding against the respondent for violating the injunction would be no more a criminal proceeding than would one against him for violating an injunction in a civil proceeding, or in a proceeding in reference to a private nuisance.

The reasoning of the supreme court of Massachusetts in Carlton v. Rugg, 149 Mass. 550, is much in point. Knowlton, J., speaking of the proceeding to abate a nuisance, and one against the respondent for the crime of maintaining one, says: “The latter is conducted under the provisions of the criminal law, and deals only with the person who has violated the law. The former is governed by rules which relate to property, and it is only connected with persons through the property in which they may be interested.”

The acts committed by a person in violating an injunction may constitute a crime, but the fact that a person is guilty of an offence against the criminal law and subject to punishment under it — in any prosecution for which he is entitled to the protection of the constitutional provision— is no bar to a proceeding against him before the chancellor or the judge granting the injunction, for a violation of it. To illustrate this point take the case of a libellee in a divorce cause who .is enjoined from interfering with the custody and personal liberty of his wife, the libellant. In case he commit a grievous assault on her, he is guilty, under the criminal law, of the offence, and is, in a prosecution for such offence, entitled to a jury trial, — the judgment of his peers; but will any one contend that he cannot be proceeded against before the authority granting the injunction for his contempt in violating it, or would any lawyer advise that an adjudication of guilt of either offence could be successfully pleaded in bar of the other? We think not. Nothing further need be said upon this branch of the case than to refer to the reasoning of, and the cases cited by, Brewer, J., in Re Debs, 158 U. S. 564.

The decree overruling the demurrer and adjudging the bill sufficient was correct. The same is affirmed and cause remanded.