SEC. 2408 of code. Abatement of nuisance. "If the existence of the nuisance be established in a civil or criminal action, an order of abatement shall be entered as a part of the judgment in the case; which order shall direct the destruction of the liquor, the removal from the building or place of all fixtures, furniture, vessels or movable property used in any way in conducting the unlawful business and sale thereof, in the manner provided for the sale of chattels under execution, and the effectual closing of the building, erection or place against its use for any purpose prohibited in this chapter, and so keeping it for a period of one year, unless sooner released. If any one shall break or use a building or place so directed to be closed, he shall be punished as for contempt as provided in the preceding section. (Section 2407 of the code.) For removing and selling the movable property, the officer shall be entitled to charge and receive the same fees as he would for levying upon and selling like property on execution, and for closing the premises and keeping them closed, a reasonable sum shall be allowed by the court."

See also Sec. 5447 of the Code relative to the abatement of a nuisance.

If the existence of a nuisance be established in either a civil or criminal action it is the duty of the county attorney to see that the liquor mulct tax is assessed against the property. See Sec. 2446 of the Code. Such assessment is not to be made merely for the current quarter but for the full length of time said property has been used for purposes rendering it liable for the mulct tax. The person and property is subject to the tax from the time business is commenced. O'Brien County v. Mahon, 126 Iowa 539; 102 N. W. 446.

It should be noted that the foregoing section expressly provides that "if the existence of a nuisance be established in a civil or criminal action an order of abatement shall be entered as a part of the judgment in the case;" and when the fact of the existence of a nuisance has been established it is error for the court to refuse to provide in the decree for the abatement of the nuisance. McClure v. Braniff, 75 Iowa 38.

Further, the order of abatement should direct the "effectual closing of the building, erection or place" constituting the nuisance, and this is true although the owner of the premises had no notice or knowledge of the unlawful use of the property. State v. Knapp et al., Iowa ....; 158 N. W. 515.

The existence of the nuisance being established a decree as provided for by section 2408 must be entered, unless the action has been abated by the owner giving bond and paying costs before judgment and order of abatement as provided for in Sec. 2410. McCoy v. Clark, 109 Iowa 464; 80 N. W. 538.

The exclusive remedy for the owner in such cases is provided for in Sec. 2410 of the Code. If it should appear from the testimony that the

owner of the property had knowledge of the illegal use of the same it is proper to tax the costs of the proceedings against him, otherwise the costs should not be thus taxed. Morgan v. Koestner, 83 Iowa 134; 49 N. W. 80.. Many decrees are being drawn which do not enjoin either the property owner or the property itself, nor do many call for an abatement of the nuisance as required by law. The following form may be used to cover these omissions.

Title,

Venue.

FORM OF DECREE FOR INJUNCTION AND ABATEMENT
OF NUISANCE.

DECREE.

BE IT REMEMBERED, That on this......day of..... 19...., the above entitled cause comes on for hearing and trial in open court; the plaintiff appearing in person and by (name of his attorney), his attorney, and defendants appearing in person and by their attorneys (naming them); and the court after inspecting the original notice and pleadings, and after hearing the evidence duly presented in said cause, and the argument of counsels, finds:

That said defendants and each of them have been duly served with timely notice of the filing of this action, and that said defendants and each of them, and the subject matter of said cause is within the jurisdiction of this court; that the evidence presented at said trial established the fact that said defendant (naming him) has been engaged in the unlawful sale or dispensing of intoxicating liquor (state facts, if sale or dispensing has not been made in violation of law) in a building or place situated on lot number.... .in block number.. . in the city of....

(or town) . County and State of Iowa; that said defendant (naming owner) is owner of said premises; that said building and premises has been and is used as a place where intoxicating liquors are kept, sold or dispensed in violation of law, or are kept with intent to be sold or dispensed in violation of law, and that said building and premises constitute a nuisance; that the equities are with the plaintiff and that he is entitled to the relief prayed for in his said petition.

Wherefore, it is ordered, decreed and adjudged that the defendant (naming keeper) be and is hereby perpetually and permanently enjoined from directly or indirectly conducting, continuing or maintaining a nuisance at (specify location) and from directly or indirectly soliciting, selling, dispensing or keeping intoxicating liquor, or keeping with intent to sell or dispense, any intoxicating liquor anywhere in the.. ..... judicial

district and in the State of Iowa in violation of law; and that said defendant (naming owner) be and hereby is perpetually and permanently enjoined from maintaining or allowing a nuisance to be maintained on his aforesaid premises or in any building or erection thereon; that said building, erection and premises be and hereby is decreed and adjudged to be a nuisance and that all persons whomsoever be perpetually and permanently

enjoined from using said building, erection or premises as a place for the unlawful keeping of, or traffic in intoxicating liquors.

It is further ordered, adjudged and decreed that the sheriff of said ...county be and he is hereby ordered to abate said nuisance by the destruction of all liquors heretofore seized therein, or now kept or stored therein, and that he remove from said building or erections all fixtures, furniture, vessels or movable property used in any way in conducting said unlawful nuisance and sell the same as required by law; and that said sheriff effectually close said building, erection or place against all use whatsoever for a period of one year, and that he keep the same effectually closed for said period unless sooner released as provided by law.

It is further ordered, adjudged and decreed that the plaintiff have judgment against the defendants for the costs of this action taxed at..... dollars, including the sum of............dollars as attorney fees, the same to be taxed as part of the costs of said action. Done in open court this...... day of..

19....

Judge.

Sec. 2410, Supplement, 1913. Abatement by owner. "If the owner appears and pays all costs of the proceeding, and files a bond with sureties to be approved by the clerk in the full value of the property, to be ascertained by the court, or in vacation, by the clerk, auditor and treasurer of the county, conditioned that he will immediately abate said nuisance and prevent the same from being established or kept therein within a period of one year thereafter, the court, or in vacation, the judge, may, if satisfied of his good faith, order the premises closed under the order of abatement to be delivered to said owner, and said order of abatement cancelled so far as the same may relate to said property; and if the proceeding be an action in equity, and said bond be given and costs therein paid before judgment and order of abatement, the action shall be thereby abated as to said building only. The release of the property under the provisions of this section shall not release it from any judgment, lien, penalty or liability to which it may be subject by law."

The filing of the bond by the owner, and the payment of costs before judgment does not abate the nuisance but abates the action itself in so far as it relates to the building. The bond provides and guarantees abatement of the nuisance by the owner. Morris v. Connolly, 113 Iowa 545; 85 N. W. 789.

There is no authority for decreeing that the building shall be closed so far as the sale of liquor is concerned and at the same time allow it to be used for other lawful purposes. It is only on the giving of the bond that

the building is to be used for other purposes. Lewis v. Brennan, 141 Iowa 585; 120 N. W. 332.

Sec. 2422, of the Code, declares fines, mulct taxes, etc., to be a lien on the property.

SEC. 2409 of code. Proceeds-how applied. "The proceeds of the sale of the personal property, as provided in the preceding section (section 2408 of the code), shall be applied, first, in payment of the costs of the action and abatement; secondly, to the satisfaction of any fine and costs adjudged against the proprietor of the premises and keeper of said nuisance, and the balance, if any, shall be paid the defendant."

SEC. 2412 of code. Prepayment of fees not required-costs taxed to plaintiff. "In an action brought by a citizen to enjoin a nuisance, as defined in this chapter, no officer or witness shall be entitled to receive in advance fees for service or attendance. If the prosecution fails, or the costs cannot be collected of the defendant, they shall be paid in the same manner as in criminal causes. If, however, the court shall find that the case was commenced without probable cause, or was maliciously brought, it may tax the costs to the plaintiff.”

It has been held under this section that the clerk has no right to demand his fees for the transcript in advance. Searles v. Lux, 86 Iowa 61. His fees are all provided for as in criminal cases.

LAWS RELATING TO PERMITS AND PERMIT HOLDERS

The law makes provision for limited traffic in intoxicating liquors. Each person, firm or corporation desiring to engage in the sale of intoxicating liquors must secure a permit from the district court for that purpose and give bond for faithful compliance of the law regulating the busi

(3)

permit authorizing certain manufacturers to purchase, transport and possess liquors for manufacturing purposes.

The subjects are taken up in the order above mentioned.

The law of Iowa as it now stands absolutely prohibits all dealings in malt liquors. Even the possessor of a permit has no authority to have in his possession or to dispense in any manner malt liquor.

RETAIL PERMITS.

SEC. 2383-a, Supplement, 1913. Retail permit holder must be qualified elector. "No one except a qualified elector of the town, city or township in which the business is conducted and carried on shall engage in the sale of intoxicating liquors at retail."

Since a woman is not a qualified elector according to the laws of Iowa she is prohibited from being a permit holder, even though she may be a registered pharmacist. In re Application of Carragher; 149 Iowa 225; 128 N. W. 352. A corporation is not an elector and therefore cannot be a retail permit holder..

SEC. 2383-b, Supplement, 1913. Brewers, distillers and others prohibited from selling or being interested in sale. "No person, firm, association or corporation and no officer, member, stockholder, agent or employe of any such firm, association or corporation engaged in the manufacture, brewing, distilling or refining of intoxicating liquors shall be interested or engaged, either directly or indirectly, in the retail sale of intoxicating liquors, or own, operate or lease any building, erection or place to be used for the sale or keeping for sale of intoxicating liquors at retail, or own or lease or be interested in, either directly or indirectly, any fixtures, furniture, or apparatus to be used in the retail sale of intoxicating liquors, or furnish the license bond required by law or pay for such bend or guarantee the bond of such person engaging in the sale of intoxicating liquors contrary to the conditions above prohibited shall be punished as in section three (section 2383-c supplement, 1913) provided."

SEC. 2383-c, Supplement, 1913. Penalty for violation. "Any person, firm, association or corporation, or any agent or officer of such firm, association or corporation, violating any of the provisions of this act, shall be deemed guilty of a misdemeanor, and shall be liable to all of the penalties, both civil and criminal, provided in chapter six, title twelve of the code, the supplement to the code, 1907, and amendments thereto."

While the three preceding sections were enacted when saloons were permitted to operate yet the sections have been held to apply with equal force to permit holders as they engage in the sale of intoxicating liquors at retail. In re application of Carragher, 149 Iowa 225; 128 NW. 352.

SEC. 2383-d, Supplement, 1913. Acts in conflict repealed. "All acts and parts of acts, in so far as they are in conflict with this act, are hereby repealed."