
    Town of Britton et al v. Guy et ux.
    
    Under-the statute declaring that places where liquor is sold without license are nuisances, and Rev. Civil Code 1903, %'i 2400, 2403, authorizing public officers to maintain a civil action against a public nuisance, a municipal corporation may enjoin the illegal sale of intoxicants therein, though the voters have not determined against the sale of liquor.
    (Opinion filed Jan. 20, 1904.)
    Appeal from circuit court, Marshall county; Hon. J. H. McCoy, Judge.
    Action for an injunction by the town of Britton and others against John Guy and wife. From a judgment granting the writ, defendants appeal.
    Affirmed.
    
      Byron Abbott, for appellants.
    
      James Wells and Harry E. Phelps, for respondents.
   Fuller, J.

Plaintiff, a municipal corporation, is seeking to restrain the illegal sale of intoxicating liquors by the defendant, John Guy, in a certain two-story frame building situated in the town of Britton, and the property of his wife and co-defendant, Annie Guy, with whose knowledge and consent the business of selling at retail is being conducted without a license. That facts sufficient to constitute a cause of action are not stated is the only question presented by this appeal from an order overruling a demurrer to the complaint. The exact point relied upon is the failure to allege that the voters of the municipality have determined against the sale of intoxicating liquors. Whether the defendant, John Guy, has ever filed a bond, and paid to the county treasurer the license required by statute, does not appear. It is alleged, however, that his application for the license fixed by ordinance was rejected by the trustees of the town on the first day of July, 1903. It is only to persons having a county license that the officers of a town can grant a license to engage in the business, and even then it is a matter left to their discretion. Rer Pol. Code 1903, §§ 2854, 2855. Counsel’s contention is that the only authority to restrain and suppress such illegal traffic is found in section 1546 of the Revised Political Code, which, it is claimed, applies only to the municipalities having determined the question of license adversely. Subdivision 3 of the act recites that “houses or places wherein spirituous, vinous and fermented liquors or beer are sold without a license, and tippling houses, are hereby declared to be and shall be deemed to be public or common nuisances.” It is well settled that the restraint or abatement of public nuisances at the suit of municipal authorities is clearly within the jurisdiction of courts of equity. Moreover, a civil action is one of the remedies given public officers against a public nuisance by sections 2400 and 2403 of the Revised Civil Code of 1908. City of Huron v. Bank of Volga, 8 S. D. 449. 66 N. W. 815, 59 Am. St. Rep. 769. A house where intoxicating liquors are sold at retail without a license having thus been expressly declared to be a public nuisance independently of the action of the voters, the remedy by injunction exists, without resort to section 1546, supra, and the position of appellant’s counsel is not maintainable.

The order overruling the demurrer to the complaint is a . ed.  