to do so. In the protection of its property and citizens, no state should be compelled to depend upon the action of any of its sister states.2 The first question met in considering this problem is whether one thus maintaining a nuisance in one state by acts done in another state is punishable under criminal statutes in the usual form referring only to "acts" as crimes. Is it an act in New York to injure property in that state by means of fumes emitted into the air in New Jersey? This question presents in a new form the problem with which courts have struggled for hundreds of years in distinguishing between actions of trespass vi et armis and actions on the case, namely, to tell just where an act ends and its consequences begin. It is admitted that a man need not be personally present at a place in order to commit an act there; as where A, standing in Illinois, shoots B in Iowa. Lord Ellenborough has held that firing a gun with shot into a field is a breaking of the close. Though doubts were originally expressed as to whether trespass would lie for the passage of a balloon over land, it has come to be regarded as the better view that trespass quare clausum fregit will lie for causing the movement of any solid substance over or into the plaintiff's close if there is any physical contact or any actual injury." While noxious gases may be said to be simply collections of extremely small particles of solid matter carried along on the air, it would seem more accurate to say that in this case there is no movement of any solid substance, for the argument just supposed would apply equally well to air and all gases. It is hard to see any practical distinction between the case where a man pulls a trigger and as a result gases in the gun expand and sent a charge of shot into the plants on another's land, and the case where he kindles a fire in a furnace, as a result of which poisonous fumes move against those same plants and destroy them. To aid in the solution of the practical problem we are now considering, there is a temp 'In applying this principle to the Federal government, Brewer, J., said, "We are to find in the Constitution itself the full protection to the Nation, and not to rest its sufficiency on either the generosity or the neglect of any state." South Carolina v. United States, 199 U. S. 437. 'Kenyon v. Hart, 6 B. & S. 252; Smith v. Smith, 110 Mass. 302; Jordan v. Wyatt, 4 Gratt. 151; Pollock on Torts, p. 218. tation to hold that there is no distinction between these two cases. However, the line must be drawn somewhere, and if the meaning of the word "act" is to be regarded, as it has been developed in the law, it must be held that a man commits an act in the place to which he sends a solid substance, but that he does not commit an act there by sending matter which is not solid. Admitting, then, that the defendant has committed no act in New York by maintaining his factory in New Jersey, a second problem is presented, namely, is it nevertheless possible for New York to punish the defendant criminally for the effects of his act, by means of a statute which is appropriately worded. As between different counties in the same state, a cause of action has been held to arise where the effects of the act cause injury. In State v. Lord, 16 N. H. 357, the defendant erected a dam in Maine which caused water to flow so as to constitute a nuisance on the highway in New Hampshire, and the New Hampshire court sustained an indictment. State v. Babcock, 30 N. J. L. 29, where ships had been sunk in a part of the Hudson river which is under the jurisdiction of New York, is squarely contra. Texas has criminally punished parties who, while in other states, have forced papers purporting to affect the title to lands in Texas. North Carolina in early days felt unable to punish the passage in Virginia of counterfeit North Carolina money. The better and more widely adopted rule seems to be that a state may punish a defendant for causing injurious results within its sovereignty by means of his acts committed beyond its boundaries. The sovereignty of each state is supreme within its boundaries, but it is not considered an invasion of that sovereignty for another state to punish a defendant who while personally present •Thompson v. Crocker, 9 Pick. 59; Company of Proprietors of the Mersey and Irwell Navigation v. Douglas, 2 East 497. Contra, In Re Eldred, 46 Wis. 530. 'Ham v. State, 4 Tex. Ct. App. 645; Hanks v. The State, 13 Tex. App. 289. •State v. Knight, 3 N. C. 109. Stillman v. White Rock Mfg. Co., 3 Woodb. & M. 539; Commonwealth v. Gaines, 2 Va. Cases 172; 2 Wharton on Conf. of Laws, 3d ed., pp. 1610, 1626; Cooley on Const. Lim., 4th ed., p. 165; Story on Conf. of Laws, 4th ed., sec. 625b. Contra, State v. Carter, 27 N. J. Law 499; Clark on Crim. Law, 2d ed., p. 419; 1 Bishop on Crim. Law, 5th ed., p. 154. in the first state has committed a criminal act in that other state. Nor is it an invasion of its sovereignty to punish a defendant who while within it commits an extra-territorial crime, such as treason, against another government. The principle here applied is that it is not an invasion of sovereignty for a state to punish a defendant who has injured it while beyond its boundaries. If it is proper, as is universally admitted, to allow the injured state to decide whether the defendant's act has been so injurious to it that he should be criminally punished, it should not be considered an invasion of sovereignty for that state to exercise the same discretion in regard to the effects of the defendant's act. Any distinction in this connection between the act of a party and the effects of his act is illogical and is harmful in its results. Any distinction here between acts and their effects would seem to have been improperly carried into this branch of the law from the law of pleading; for the sole consideration here is the injury to the state, and the law constitutes that state the judge as to whether the injury has occurred. The fact that the injury is indirect or merely consequential cannot deprive a state of its sovereign right to determine the fact of its occurrence. In People v. Merrill, 2 Park. Crim. 590, two provisions of the United States Constitution are referred to, and it is then asked if there are not constitutional objections to the view which it is here submitted is correct. The sixth amendment guarantees to the accused the right of trial by a jury of the state and district wherein the crime has been committed. Any objection based upon this provision assumes the point at issue, for if it is possible to make the effects of an act a crime, then that crime occurs where the effects of the act take place and the injury is done. The second section of the fourth article guarantees to the citizens of each state all privileges and immunities of citizens in the several states. But if a crime has been committed in one state by the citizen of another, it has been universally held that such citizen has no immunity from punishment if he enters the state where the crime was committed. To adopt a contrary view would be to give him an immunity in the other state not possessed by its own citizens; for it may safely be assumed that no state will make the criminality of the effects of an act dependent on where the act was committed. It is true that one state has been granted relief against a public nuisance situated in a second state by means of an original bill in equity filed in the United States Supreme Court,10 but this relief will be given only when the evil is of "serious magnitude," and leaves untouched the lesser nuisances against which a complete legal system will enable a state to protect itself. To attain the proficiency which is possible in a statute defining criminal nuisances, a clause should be introduced which will clearly include the effects within the state of an act performed in another state. EQUITY JURISDICTION TO ENJOIN CRIMINAL PROCEEDINGS As a general rule a court of equity will not exercise jurisdiction by way of injunction to stay proceedings in any criminal matters, or in any case not strictly of a civil nature.1 In most jurisdictions, however, there are well recognized exceptions to this rule. Where a court of equity has jurisdiction first and one of the litigants tries to defeat that jurisdiction by starting a criminal prosecution involving the same parties on account of the same subject matter, the criminal proceedings may be enjoined.* But the parties and questions involved must be identical. Probably the most frequent exercise of equity jurisdiction with relation to criminal proceedings is to stay prosecutions under an invalid statute or ordinance where the complainant's property rights are affected. The federal courts have gone so far as 10 Georgia v. Tennessee Copper Co., 206 U. S. 230. "Missouri v. Illinois, 200 U. S. 496. 'Moses v. Mayor, 52 Ala. 198; Portis v. Fall et al., 34 Ark. 375; Snouffer & Ford v. Tipton, 142 N. W. (Iowa) 97; Kelly v. Conner, 122 Tenn. 339; High on Injunctions, 4 ed. 33; 2 Story's Equity Jurisprudence, 12 ed. 893; Bispham's Principles of Equity, 424. 'York v. Pilkington, 2 Atk. 302. 'Paulk v. Mayor, 104 Ga. 24; Creighton v. Dahmer, 70 Miss. 602; Logan v. Postal Telegraph & Cable Co., 157 Fed. 570; Spink v. Francis, 19 Fed. 670, 20 Fed. 567; Saull v. Brown, L. R. 10 Ch. 64; Turner v. Turner, 15 Jur. 218. See also extensive notes in 21 L. R. A. 84; 25 L. R. A. (N. S.) 193. 'Board of Commissioners v. Orr, 61 So. (Ala.) 920; Dreyfus v. Boone, 88 Ark. 353; Philadelphia Co. v. Dickinson, 33 App. Cas. (D. C.) 338; Boyd v. Frankfort, 117 Ky. 199; New Orleans, etc., Co. v. New Orleans, 118 La 228, 10 Am. & Eng. Ann. Cas. 757; Clark v. Harford A & B. Ass'n, 118 Md. 608; Merchants' Exchange v. Knott, 212 Mo. 616; Hall v. Jackson, 31 How. Pr. 331; Spaulding v. McNary, 130 Pac. (Ore.) 391; Cain v. Daly, 74 S. C. 480; Houston v. Richter, 157 S. W. (Tex.) 189; Fellows v. Charleston, 62 W. Va. 665; Lindsley v. Gas Co., 162 Fed. 954. to enjoin prosecutions in state courts where there was a conflict between state laws and the federal laws or constitution. In some jurisdictions it is sufficient that the complainant is injuriously affected by the enforcement of the invalid statute or ordinance.® On this point, O'Brien, J., in a Minnesota case,' observed: "But in every case the probable and, we think, direct injury to the property must be shown, entirely distinct from the proceedings to punish personally for the commission of crime. Such cases are considered exceptions to the general rule, and are based upon the theory that it would be inequitable to permit the infliction of irreparable injury pending judicial determination whether or not a crime had been committed, or that from the circumstances involved the property of the one prosecuted cannot be protected by the defense he may interpose to the accusation." The right of a court of equity to enjoin criminal proceedings upon any ground has been vigorously denied in some courts, regardless of the infirmities of the ordinance or the effects of its enforcement. It is said: "Courts of equity interpose to prevent multiplicity of suits and vexatious litigation by private parties who are shown to be actuated either by desire of gain or to gratify their malice. But prosecutions in the nature of criminal prosecutions are conducted by officers of the state representing the public and looking to the public interests, as well as the just punishment of the guilty, and it would not be proper for a court of equity to undertake to restrain an officer acting in his official capacity and under the responsibilities of his office, from discharging what to him may appear to be a plain duty pertaining to his office." This distinction is not one of very great weight; for if, in a particular case, it can be shown that the elements entitling the interposition of a court of equity exist, whether the proceedings be criminal or civil they should be enjoined. If anything is more yexatious or harassing than civil litigation, it is criminal litigation. The strength of the decisions 'Ex parte Young, 209 U. S. 123; Tuchman v. Welch, 72 Fed. 548. Mayor v. Radecke, 49 Md. 217; Clarke v. Harford A. & B. Ass'n, supra; Bluefield v. Bluefield, 70 S. E. (W. Va.) 772; City v. Gas Co., 132 Ind. 575. 'Cobb v. French, 111 Minn. 429, 432. 'Moses v, Mayor, supra; Poyer v. Village, 123 Ill. 111; Creighton v. Dahmer, supra. 'Railway Co. v. Dist. of Col., 6 Mackey 570. |