Morris v. Lowry

85 N.W. 788, 113 Iowa 544

• Court: Supreme Court of Iowa
• Decided: April 12, 1901
• Status: Published

Opinion

Ladd, J.

The language of section 2410 of the Code is so explicit as to leave no room for construction. The first part relates to the cancellation of an order abating a liquor nuisance already obtained by the execution of a bond conditioned that it shall be immediately abated by the owner, and not established again during one year; “and if the proceeding be an action in equity, and said bond be given and costs paid therein before judgment and the order of abatement, the action shall be thereby abated.” Every proceeding in court is an action (section 3424, Code) ; and the word “action,” as employed in the Code has a technical meaning (section 3425), which is also in accord with the approved use of the language. We may not, then, attribute to the legislature an understanding or use of it in any other sense. Besides, “the action,” as found in the last clause, so evidently refers to the “action in equity” previously mentioned, as to leave no doubt that the abatement of the entire proceeding was intended, and not merely that of the nuisance. Primarily, suits to enjoin liquor nuisances under sections 2405 and 2406 of the Code have for their object the termination of the unlawful use of the- particular premises, and restraining of those found guilty from establishing nuisances elsewhere is only incidental to the relief granted: The statute merely permits the owner himself, rather than the court, 'by giving security, to abate the nuisance; and when he undertakes to do this in the manner provided, denies to the state or citizen the incidental relief with respect to future conduct. There may be reasons, as contended by appellant, why the law should be different. It is enough, for the purposes of litigation, however, that “thus it is written.” The suggestion that the statute is unconstitutional merits no attention. — -AFFIRMED.