
    The State of Kansas, Appellant, v. M. L. Roach et al., Appellees.
    
    No. 17,228.
    HEADNOTE BY THE REPORTER.
    
      Injunction — Liquor Nuisance — Attorney’s Fee — Punishment. The fact that in an action to enjoin a liquor nuisance an unsuccessful defendant is required to pay the plaintiff’s attorney’s fee held not to characterize the proceeding as one brought to enforce a punishment.
    Appeal from Atchison district court.
    Opinion denying a rehearing, filed February 11, 1911.
    (For original opinion, see 83 Kan. 606.)
    
      Fred S. Jackson, attorney-general, John Marshall, assistant attorney-general, Charles D. Shukers, special, assistant attorney-general, and Thomas A. Moxcey, county attorney, for the appellant.
    
      W. P. Waggener, and J. M. Challiss, for the appellees.
   Per Curiam:

In a petition for a rehearing attention is called to the recent case of Chantangco v. Abaroa, 218 U. S. 476. There the court held an acquittal upon a criminal charge to be a bar to the recovery of damages occasioned by the same unlawful act. The decision, however, turned upon a peculiarity of the law of the Philippine Islands, in virtue of which “a judgment of conviction was essential to an action for indemnification.” (p. 484.) After stating the substance of the local statutes the opinion continues:

“The foregoing considerations eliminate any question of the effect of such a judgment of acquittal under the principles of the common law.” (p. 486.)

The petition for a rehearing also urges that the injunction action here involved is in its essential nature penal, because the statute requires an unsuccessful defendant to pay the plaintiff’s attorney’s fee. Granting that this requirement is justified only on the theory that a wrong to the public has been committed, the attorney’s fee is not strictly and solely a penalty; it is also compensatory. (See A. T. & S. F. Rld. Co. v. The State, 22 Kan. 1, 15, 16.) Moreover, the object of the injunction action is not to exact the payment of the attorney’s fee — that is merely incidental.' The purpose is not punishment for a past offense, but security against its repetition.

West, J., not sitting.  