evils. The right of a state to prohibit the transportation of intoxicating liquor or to regulate it is now unquestioned in view of the case of Clark Distilling Company vs. Western Maryland Railway Company and State of West Virginia, decided by the supreme court of the United States on the 8th of January, 1917. The following section is often spoken of as the prohibition statute of Iowa: SECTION 2382, Supplemental Supplement, 1915, as amended by thirty-seventh general assembly, chap. 248. Manufacture, sale or keeping for sale of intoxicating liquors prohibited. “No one, by himself, clerk, servant, employe or agent, shall, for himself or any person else, directly or indirectly, or upon any pretense, or by any device, manufacture, sell, exchange, barter, dispense, give in consideration of the purchase of any property or of any services or in evasion of the statute or keep for sale, any intoxicating liquor, which term shall be construed to mean alcohol, ale, wine, beer, spirituous, vinous and malt liquor, and all intoxicating liquor whatever, except as provided in this chapter, or solicit, take, or accept any order for the purchase, sale, shipment, or delivery of any such liquor, or aid in the delivery and distribution of any intoxicating liquor so ordered or shipped, or own, keep, or be in any way concerned, engaged or employed in owning or keeping any intoxicating liquor with intent to violate any provision of this chapter, or authorize or permit the same to be done; and any clerk, servant, employe or agent engaged or aiding in any violation of this chapter shall be charged and convicted as principal. And in case of a sale in which a shipment or delivery of such liquors is made by a common or other carrier, the sale thereof shall be deemed to be made in the county wherein the delivery thereof is made by such carrier to the consignee, his agent or employe." Amendment effective July 4, 1917. Special attention is directed to the provisions of the Reed "Bone-dry" Law. (U. S. Statute.) It not only prohibits the use of the United States mails for the circulating of liquor advertising matter in dry territory but further provides "whoever shall order, purchase, or cause intoxicating liquors to be transported in interstate commerce, except for scientific, sacramental, medicinal, and mechanical purposes," is subject to the penalties of the foregoing law which is set forth at length in this compilation. The first thing to be determined in a prosecution for a violation of the above section is to ascertain whether or not the article manufactured, sold or kept for the purpose of sale is intoxicating liquor. In the case of State v. Colvin, 127 Iowa, 632; 103 N. W. 968 the Supreme Court held that proof that the liquor used as a beverage contained alcohol was sufficient to establish its character as intoxicating liquor, however much the alcohol may have been diluted, or however weak its intoxicating effect as a beverage may be. Where the evidence showed that the beverage sold contained one and one-half per cent of alcohol by weight and two per cent by volume it was held error for the court to receive testimony attempting to prove the liquor was not intoxicating. Idem. .... Any one selling a beverage is bound to know its character and whether or not it contains alcohol. See also Nies et al. v. District Court, ... Iowa, .; 161 N. W. 317, and Barber v. Buonanni Co., .... Iowa, ; 161 N. W. 688. It is no defense to rely upon the representation of the manufacturers that it contains no alcohol. Peters v. District Court, 114 Iowa, 207; 86 N. W. 300. It should be noted that the law not only prohibits the manufacture, sale or keeping for sale of intoxicating liquors but also prohibits anyone, "directly or indirectly, or upon any pretense, or by any device," from manufacturing, selling, exchanging, bartering, or dispensing it. In the case of Sawyer v. Frank, 152 Iowa, 341; 131 N. W. 761; also 132 N. W. 861, the Supreme Court approved of the definition of "dispense" as "to deal out, to apportion, to distribute. To dispense is to deal out generally or indiscriminately; to distribute, to deal out to, or divide among individuals." The purpose and intent of this statute is to absolutely prohibit any and all traffic in intoxicating liquors. Even a registered pharmacist cannot sell alcohol for scientific purposes unless he is the holder of a permit. In re application of Henery, 124 Iowa, 358; 100 N. W. 43. See "Bootlegger" for opinions relative to solicitation of orders for the sale or delivery of intoxicating liquor. For penalty for solicitation by common carrier engaged in interstate commerce see Sec. 239 of the Criminal Code of the United States. The amendment added by the 37th G. A., Chap. 248, to the foregoing section has been patterned after an act of somewhat the same nature which appears on the statutes of West Virginia. There is this distinction, how ever, the Virginia statute makes the place of delivery the place of sale; the Iowa statute provides that "in case of a sale in which a shipment or delivery of such liquors is made by a common or other carrier, the sale thereof shall be deemed" to have been made at the place of delivery. The West Virginia statute was approved in the case of West Virginia v. Adams Express Company, 219 Fed., 794, and later approved by the Supreme Court of the United States in the case of Clark Distilling Co. v. Western Maryland Co., and the state of West Virginia decided January 8, 1917. SECTION 2383, Supplement, 1913. Penalty-Additional for second offense. "Whoever is found guilty of violating any of the provisions of the preceding section, (section 2382, supplemental supplement, 1915, as amended) for the first offense shall pay a fine of not less than fifty dollars nor more than two hundred dollars and cost of prosecution, and stand committed to the county jail until such fine and costs are paid; for the second and each subse quent offense he shall pay, upon conviction thereof, a fine of not less than three hundred dollars nor more than five hundred dollars and costs of prosecution, or be imprisoned in the county jail not to exceed one year." Section 2383, Supplement, 1913, applies solely to violations of section 2382, Supplemental Supplement, 1915, as amended, and covers only cases where the accused has been found guilty in a criminal action of violating the provisions of the preceding section. The attempt of the 36th G. A. to increase the penalty for being in contempt of court the second time for violation of an injunction was held unconstitutional in the case of Flannigan v. Jepson, .... Iowa, ....; 158 N. W. 641. For the requisites of an indictment or information in any prosecution for a second or subsequent offense see sections 2424 and 2425, of the Code. SEC. 2384 of the code. What constitutes a nuisance-penalty -abatement-attorney's fee. "Whoever shall erect, establish, continue or use any building, erection or place for any of the purposes herein prohibited, is guilty of a nuisance, and upon conviction shall pay a fine of not less than three hundred nor more than one thousand dollars and costs of prosecution, which shall include a reasonable attorney's fee to be taxed by the court, and stand committed to the county jail until such fine and costs are paid, and the building, erection or place, or the ground itself, in or upon which such unlawful manufacture or sale or keeping with intent to sell, use or give away said liquors is carried on or continued or exists, and the furniture, fixtures, vessels and contents, are also declared a nuisance, and in addition to the penalties hereinbefore affixed, shall be abated as hereinafter provided." Traffic in intoxicating liquor in violation of the provisions of Sec. 2382, Supplemental Supplement, 1915, as amended, does not constitute a nuisance, unless the action complained of was done in connection with the use of some building or place. Whenever any of the prohibited acts are done in a building or place, the building or place becomes a nuisance, and whoever erects, establishes, or continues the use of any such building, erection or place for any of the purposes prohibited by that section is guilty of a distinct substantive crime, to-wit: the maintaining of a nuisance and may be convicted and punished therefore. Hathaway v. Benton, Iowa, .. ; 154 N. W. 474. It is the building or place that constitutes the nuisance and not the person. If the person has no known or fixed place wherein he violates the law by selling, soliciting, etc., he should be dealt with as a "bootlegger" as provided for in Sec. 2461-a, Supplemental Supplement, 1915. .... SEC. 2405, Supplemental Supplement, 1915. Action to abate nuisance-Injunction-Contempt. "Whenever a nuisance is kept, 1 maintained or exists, as defined in this chapter, any citizen of the county may maintain an action in equity to perpetually enjoin and abate the same. In such action the court, or a judge in vacation, shall, upon the presentation of a petition therefor, allow a temporary writ of injunction without bond, if it shall be made to appear to the satisfaction of the court or judge, by evidence in the form of affidavits, depositions, oral testimony or otherwise, as the plaintiff may elect, unless the court or judge, by previous order, shall have directed the form and manner in which it shall be presented, that the nuisance complained of exists. Three days' notice in writing shall be given the defendant of the hearing of the application, and, if then continued at his instance, the writ as prayed shall be granted as a matter of course. When an injunction has been granted, it shall be binding on the defendant throughout the state, and any violation of the provisions of this chapter by manufacturing, selling or keeping for sale of intoxicating liquors anywhere within the state shall be punished as a contempt, as provided in this chapter." In an action to abate a nuisance the plaintiff may ask for three different forms of relief: (1) To enjoin a defendant from maintaining a nuisance in a particular place or any other place within the state. Denmead v. Parker, Judge, 145 Iowa, 581; 124 N. W. 780. (2) He may ask that the owner of the property be enjoined from maintaining a nuisance on his premises or allowing the same to be maintained or conducted. Fisher v. Sliph, 154 Iowa 121; 134 N. W. 632. (3) He may ask that the place itself, specifying it, be declared a nuisance and that all persons whosoever be enjoined from using said premises as a place for the unlawful keeping or traffic in intoxicating liquors. Silvers v. Traverse, 82 Iowa 52. In order to tax costs against the property owner or against the property itself it is necessary that the property owner be made a party to the action. Denmead v. Parker, Judge, 145 Iowa 581. But the property itself may be declared a nuisance without the owner being made a party thereto. Morgan v. Koestner, 83 Iowa 135. Where a defendant in an action to enjoin a liquor nuisance dies pending the appeal the 'action abates. 157 Iowa 382; 138 N. W. 466. Punishment cannot be imposed upon a dead man nor can penalties in such cases be imposed against his estate. A petition to enjoin a nuisance may be in substantially the following form: FORM. Title, Venue. Petition to Enjoin and Abate Nuisance. Equity No.... Par. I. This action is instituted and prosecuted in the name of (name of party plaintiff) for the abatement of a nuisance. The said (name of plaintiff) complaining of the defendants herein, shows to the court: Par. II. That said (name of plaintiff) prosecutor, is now and for (insert number of years) years past has been an actual resident and citizen of .county, Iowa, and as such is interested in the peace, wel fare and good order of the inhabitants of said county. Par. III. That the defendant, (naming person keeping nuisance) in the county and state aforesaid has established and is operating, keeping, conducting and maintaining a building, situated on lot number...... in block number....in the city of. . . . . . . . . . . . ( or town), for the sale of intoxicating liquors in violation of law, and as a place for the keeping of such intoxicating liquors, with intent to sell, or dispense the same in violation of law. Far. IV. That the defendant (naming owner) in the county and state aforesaid has been at all the times herein mentioned and is now the owner of the building and premises aforesaid wherein said liquor is being sold, dispensed or kept in violation of law as hereinafter stated. Par. V. That on and after the ......day of..... 19..., and prior to the commencement of this action, the said defendant (naming him) did illegally sell intoxicating liquors, to-wit, whisky and brandy, at the place aforesaid, to the following named persons, viz.: To.... to..... .....on the......day of.. 19. ... 19..... (here insert statement of all sales, or other violation of law relied on as basis for injunction), and to numerous other persons whose names are unknown to the prosecutor herein. Par. VI. That the defendant (naming him) at the place aforesaid and from the......day of...... 19. ..., until the......day of........ 19...., has owned and kept in the building and on the premises aforesaid intoxicating liquors for the purpose, and with the intent on his part to sell or dispense the same therein contrary to law. Par. VII. That unless restrained by this court, the said..... (keeper) will continue at said place to keep for sale, and to sell or dispense intoxicating liquors in violation of law, and that said........ (owner) will continue to allow said building and premises to be used for said illegal purposes; and that said building and premises will continue to be a nuisance to the irreparable injury of this plaintiff, this prosecutor, and the citizens of said county. Wherefore plaintiff prays that said nuisance may be abated and said building effectually closed as provided by law; that said defendant (naming keeper) be enjoined by himself, agents or servants from in any manner soliciting, selling or dispensing intoxicating liquor in violation of law, or |