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Equally untenable is the proposition that proceedings in equity for the purposes indicated in the thirteenth section of the statute are inconsistent with due process of law. “ In regard to public nuisances," Mr. Justice Story says, "the jurisdiction of courts of equity seems to be of a very ancient date, and has been distinctly traced back to the reign of Queen Elizabeth. The jurisdiction is applicable not only to public nuisances, strictly so called, but also to purprestures upon public rights and property. . . . In case of public nuisances, properly so called, an indictment lies to abate them, and to punish the offenders. But an information, also, lies in equity to redress the grievance by way of injunction.” 2 Story's Eq. $$ 921, 922. The ground of this jurisdiction in cases of purpresture, as well as of public nuisances, is the ability of courts of equity to give a more speedy, effectual, and permanent remedy, than cau be had at law. They can not only prevent nuisances that are threatened, and before irreparable mischief ensues, but arrest or abate those in progress, and, by perpetual injunction protect the public against them in the future ; whereas courts of law can only reach existing nuisances, leaving future acts to be the subject of new prosecutions or proceedings. This is a salutary jurisdiction, especially where a nuisance affects the health, morals, or safety of the community. Though not frequently exercised, the power undoubtedly exists in courts of equity thus to protect the public against injury. District Attorney v. Lynn and Boston Railroad Co., 16 Gray, 242, 245; Attorney-General v. New Jersey Ruilroud, 2 Green, Ch. 139; Attorney-General v. Tullor Ice Co., 104 Mass. 239, 244; Stute v. Mayor, 5 Porter (Ala.), 279, 294; Hoole v. Attorney-General, 22 Ala. 190, 194; Attorney-General v. Hunter, 1 Dev. Eq. 12 ; AttorneyGeneral v. Forbes, 2 Myl. & Cr. 123, 129, 133; Attorney-General v. Great Northern Railway Co., 1 Drew. & Sm. 154, 161; Eden on Injunctions, 259; Kerr on Injunctions (2d ed.), 168.

As to the objection that the statute makes no provision for a jury trial in cases like this one, it is sufficient to say that such a mode of trial is not required in suits in equity brought to abate a public nuisance. The statutory direction that an injunction issue at the commencement of the action is not to be construed as dispensing with such preliminary proof as is necessary to authorize an injunction pending the suit. The court is not to issue an injunction simply because one is asked, or because the charge is made that a common nuisance is maintained in violation of law. The statute leaves the court at liberty to give effect to the principle that an injunction will not be granted to restrain a nuisance, except upon clear and satisfactory evidence that one exists. Here the fact to be ascertained was, not whether a place, kept and maintained for purposes forbidden by the statute, was, per se, a nuisance — that fact being conclusively determined by the statute itself — but whether the place in question was so kept and maintained.

If the proof upon that point is not full or sufficient, the court can refuse an injunction, or postpone action until the State first obtains the

verdict of a jury in her favor. In this case, it cannot be denied that the defendants kept and maintained a place that is within the statutory definition of a coinmon nuisance. Their petition for the reinoval of the cause froin the State court, and their answer to the bill, admitted every fact necessary to maintain this suit, if the statute, under which it was brought, was constitutional.

Touching the provision that in prosecutions, by indictment or otherwise, the State need not, in the first instance, prove that the defendant has not the permit required by the statute, we may reinark that, if it has any application to a proceeding like this, it does not deprive him of the presumption that he is innocent of any violation of law. It is only a declaration that when the State has proven that the place described is kept and maintained for the manufacture or sale of intoxicating liquors — such manufacture or sale being unlawful except for specified purposes, and then only under a permit — the prosecution need not prove a negative, nainely, that the defendant has not the required license or permit. If the defendant has such license or permit, he can easily produce it, and thus overthrow the prima facie case established by the State.

A portion of the argument in behalf of the defendants is to the effect that the statutes of Kansas forbid the manufacture of intoxicating liquors to be exported, or to be carried to other States, and, upon that ground, are repugnant to the clause of the Constitution of the United States, giving Congress power to regulate commerce with foreign nations and ainong the several States. We need only say, upon this point, that there is no intimation in the record that the beer which the respective defendants manufactured was intended to be carried out of the State or to foreign countries. And, without expressing an opinion as to whether such facts would have constituted a good defence, we observe that it will be time enough to decide a case of that character when it shall come before us. 1 For the reasons stated, we are of opinion that the judgments of the

Supreme Court of Kansas have not denied to Mugler, the plaintiff in error, any right, privilege, or immunity secured to him by the Constitution of the United States, and its judgment, in each case, is, accordingly, affirmed. We are, also, of opinion that the Circuit Court of the United States erred in dismissing the bill of the State against Ziebold & Hagelin. The decree in that case is reversed, and the cause remanded, with directions to enter a decree granting to the State such relief as the Act of March 7, 1885, authorizes.

[FIELD, J., gave a dissenting opinion.]

1 Held, that they would not, in Kidd v. Pearson, 128 U. S. 1 (1888). – ED.

2 As to the relation between this extensive power of the States and the Constitution and laws of the United States, see Bouman v. Chic. & N. W. R4. Co., 125 L. S. 465 (1888); Leisy v. Hardin, 135 U. S. 100 (1890), and In re Ruhrer, 140 U. S. 545 (1891). – ED.

In Smith v. Alabama, 124 U. S. 465 (1888), on error to the Supreme Court of Alabama, the validity was in question of a statute of that State requiring all locomotive engineers to be examined and licensed by a State Court. In holding this valid, MATTHEWS, J., for the court, said : “ The grant of power to Congress in the Constitution to regulate commerce with foreign nations and among the several States, it is conceded, is paramount over all legislative powers which, in consequence of not having been granted to Congress, are reserved to the States. It follows that any legislation of a State, although in pursuance of an acknowledged power reserved to it, which conflicts with the actual exercise of the power of Congress over the subject of commerce, must give way before the supremacy of the national authority. As the regulation of commerce may consist in abstaining from prescribing positive rules for its conduct, it cannot always be said that the power to regulate is diormant because not affirmatively exercised. And when it is manifest that Congress intends to leave that commerce, which is subject to its jurisdiction, free and unfettered by any positive regulations, such intention would be contravened by State laws operating as regulations of commerce as much as though these bad been expressly forbidden. In such cases, the existence of the power to regulate commerce in Congress has been construed to be not only paramount but exclusive, so as to withdraw the subject as the basis of legislation altogether from the States. . . . But the provisions on the subject contained in the statute of Alabama under consideration are not regulations of interstate commerce. It is a misnomer to call them such. Considered in themselves, they are parts of that body of the local law which, as we have already seen, properly governs the regulation between carriers of passengers and merchandise and the public who employ them, which are not misplaced until they come in conflict with express enactments of Congress in the exercise of its power over commerce, and which, until so displaced, according to the evident intention of Congress, remain as the law governing carriers in the discharge of their obligations, whether engaged in the purely internal commerce of the State or in commerce among the States.1

1 A like result was reached in Nashville, &c. Railway v. Ala., 128 U. S. 96 (1888), in considering another statute of the same State requiring, in the case of various classes of railroad employees, an examination and a certificate of fitness, as regards colorblindness and defective vision, from a State board of medical men. See Jamieson v. Ind. Nat. Gas Co., 128 Ind. 555. — Ev.




[137 U. S. 86.] This was an appeal from an order of the Circuit Court of the United States for the Northern District of California discharging, on habeas corpus, the petitioner for the writ, the appellee here, from the custody of the chief of police of the city and county of San Francisco, by whoin he was held under a warrant of arrest issued by the Police Court of that municipality, upon a charge of having engaged in and carried on in that city the business of selling spirituous, malt, and fermented liquors and wines in less quantities than one quart, without the license required by the ordinance of the city and county. The ordinance referred to provided that every person who sold such liquors or wines in quantities less than one quart should be designated as retail liquor-dealer” and as “a grocer and retail liqnor-dealer," and that no license as such liquor-dealer, after January 1, 1886, “shall be issued by the collector of licenses, unless the person desiring the same shall have obtained the written consent of a majority of the Board of Police Commissioners of the city and county of San Francisco to carry on or conduct said business; but, in case of refusal of such consent, upon application, said Board of Police Commissioners shall grant the same upon the written recommendation of not less than twelve citizens of San Francisco own. ing real estate in the block or square in which said business of retail liquor-dealer or grocery and retail liquor-dealer is to be carried on;" and that such license should be issued for a period of only three months. The ordinance further declared that any person violating this provision should be deemed guilty of a misdemeanor.

The Constitution of California provides, in the eleventh section of Article 11, that " any county, city, town, or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws.”

The petitioner had, previously to June 10, 1889, carried on the business of retail liquor-dealer in San Francisco for some years, under licenses from the Board of Police Commissioners, but bis last license was to expire on the 17th of that month. Previously to its expiration he was informed by the Police Commissioners that they had withdrawn their consent to the further issue of a license to him. He afterwards tendered to the collector of license fees, through which officer it was the practice of the Board to issue the licenses, the sum required for a new license, but the tender was not accepted, and his application for a new license was refused. He then applied to the Police Commissioners for a hearing before them on the question of revoking their consent to the issue of a further license to him. Such hearing was accorded to him, and the time fixed for it was the 24th of June. But, before

any hearing

was had, he was arrested upon a warrant of the Police Court upon the charge of carrying on the business of a retail liquor-dealer without a license. He then obtained from the Supreme Court of the State a writ of habeas corpus to be discharged from the arrest, but that court, on the 2d of August, 1890, held the ordinance valid and remanded him to the custody of the chief of police. He then applied for the allowance of an appeal from this order to the Supreme Court of the United States, but it was refused by the Chief Justice of the State Court, and the Associate Justice of the Supreme Court of the United States assigned to the circuit, who could have allowed the appeal, was absent from the State. On the 7th of August following a new complaint was made against the petitioner, charging him with unlawfully engaging in and carrying on in San Francisco the business of a retail liquor-dealer without a license under the ordinance of the city and county. Upon this complaint a warrant was issued under which he was arrested. He thereupon applied to the Circuit Court of the United States for a writ of habeas corpus, which was issued.

In return to the writ, the chief of police, the appellant here, stated that he held the petitioner under the warrant mentioned by the petitioner and several other warrants issued by the Police Court of the city and county, upon different charges, made at different times, of his conducting and carrying on the business of a retail liquor-dealer in San Francisco without a license, as required by the ordinance of the city and county. He also stated, among other things, that a further license to the petitioner was refused by the Police Commissioners, because they had reason to believe that the business was carried on by him under his existing license in such a manner as to be offensive, and violative of the criminal laws of the State and of the rights of others. In support of this charge it was averred that in that business the petitioner was assisted by one whom he represented and claimed to be bis wife, and that she had on one occasion stolen one bundred and sixty dollars from a person who visited his saloon, and been convicted of the offence in the Superior Court of the city and county, and sentenced to be imprisoned for one year, and on another occasion had stolen a watch and a scarf-pin from a person at the saloon, and was held to answer for the charge. It was also averred that there were more than sixteen citizens of San Francisco owning real estate in the block on which the petitioner carried on his business. It did not appear that on the hearing of the application any proof was offered of the facts alleged either in the petition or in the return. The case was heard upon exceptions or demurrer to the return. To that part respecting the alleged larceny by the wife and her conviction, the demurrer was on the ground that the return also showed that an appeal had been taken from the conviction, which was then pending, and that she might be acquitted of the offence charged.

Several objections were urged by the petitioner to the ordinance. Some of them were of a technical character, and could not be considered. Or the others only one was noticed, which was, that by it “the State of

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