
    (Court of Common Pleas, Montgomery Co.)
    MELISSA FISHER v. THE LAKESIDE PARK HOTEL AND AMUSEMENT COMPANY, AND JAMES A. KIRK.
    An injunction will not be granted at the ■suit of a private citizen to enjoin the viola tion of the Sunday law. Equity has no jurisdiction in matters merely political, illegal, or immoral.
    When the injury complained of is not per se a nuisance, but may or may not become ¡so, according to circumstances, and when it is uncertain, indefinite or contingent, or productive of only possible injury, equity will not interfere.
    For an injunction, the courts require that there should be no doubt in the case, and that the plaintiff must make out a clear and ■■unexceptionable right.
    On hearing for temporary restraining order.
   KUMLER, J.

This cause came on for hearing on the I amended petition of plaintiff, the answer of defendants, and the evidence.

The amended petition avers, in substance, that defendant corporation is duly organized and doing business under the general laws of the state of Ohio; that said park is a place of public iesort;that the amusements consist of a scenic railway, merry-go-round, and other minor attractions; that the scenic railway and merry-go round are operated by steam power, with a whistle and organ attached respectively; chat large crowds of disorderly persons congregate at the park ; that the scenic railway and merry-go-round, when operated, cause great noise and confusion ; that the same are operated every day in the week including Sunday, from about 10 a. m., until 11 p. m., thereby greatly interfering with the physical com fort and quiet of plaintiff, greatly annoying her, injuring her health and molesting her at night and in the peaceable and quiet occupancy of her home on Sundays; that her damages can not be measured in money; that she is irreparably injured, and that defendant, James A. Kirk, is the manager of said corporation. The answer denies that the operation of the amusements complained of, causes great noise and confusion and results in any injury to plaintiff’s health, or interferes with her rest at night, or the peaceable and quiet occupancy of her home on Sunday; denies that large crowds of disorderly people congregate at the park ; denies that the plaintiff is irreparably injured and has no adequate remedy at law.

The answer avers that suit is not brought in plaintiff’s own interest, but at the instance and expense of others; that plaintiff’s premises are one thousand feet distant from the park; that the merry-go round has been in operation for five years and the scenic railway for near one year; that plaintiff is a mere tenant from month to month, and that the park is at ail times conducted in a proper and orderly manner. The answer admits all other allegations of the petition.

The undisputed facts show. thatTheLakeside Park Hotel and Amusement Company, was duly incorporated under the general laws of Ohio, on the 7th day of May, 1890; that on the 23rd day of April, 1892, the corporation acquired title in fee simple to about seven acres of land, lying immediately east of the lands of the National Military Home, for the consideration of S20.000.00; that the amusements complained of and those similar in character, have ail been located and operated on said land for five years last past; that the charter from the state in so far as applicable to the issues before -the court, provides, “That said corporation is formed for the purpose of constructing, maintaining and operating a hotel, restaurant and place of amusement, with the power to purchase or lease lands therefor * * * and generally, to do and perform any and everything necessary to carry out the intent and purpose of Ihis Association ;’’ that the amusements in the park at the time this action was commenced, consisted of a scenic railway, merry-go-round, skating rink, shooting gallery, bowling alley, striking machine, a trip to Chicago, a happy family and other minor attractions, with lunch counter and soda water fountain connected therewith ; that no fee is charged for admission to the grounds; that ’all of these attractions are used and put in operation when called for by the patrons of the park, every day in the week, save the shooting gallery which is closed on Sunday ; that the park is thrown open to the public at about 10 a. m. and closed from 9 to 11 p. m., according to the number of visitors present.

The plaintiff asserts and undertakes to establish by proof, that the defendants so conduct and operate the amusements, as to constitute and maintain a private nuisance at the times stated in the petition,and com plains chiefly of the operation of the scenic railway, the merry-go round and the opening of the park to the public with its various amusements on the Sabbath day. Little, if any, stress is placed on the minor attractions to make out a case of mantaining a private nuisance, éxcept in so far as they contribute to the general noise and confusion.

The proof shows, that the scenic railway is about twelve hundred feet in length, including the loops and tunnel, built on wooden trestles and wooden road-bed, with iron tracks, which curve, ascend and descend frequently. The railway is equipped with small cars, which have iron trucks, with grip and brake attached, and a seating capactiy for eight persons each, and manned by a motorman. The tunnel through which the cars pass is oblong and about two hundred and fifty feet in length, with sides and ceiling built up in paper, imitating rock and mineral, with a large chamber in which there is a cyclorama representing mountain and marine scenery. The tunnel is lighted automatically with eleetirc lights, by the cars passing through and presents a beautiful and picturesque sight. The railway is operated in part by steam power; the cars descend the incline by gravitation and ascend by cable power, by means of a grip attached to the car, which automatically grabs or catches hold of the cable while in motion. There is also a steam whistle in the power house, used only as a danger signal in case of accident. For instance, if the grip fails to grab the cable the car is stopped by applying the brake; the motorman then pulls a rope attached to the whistle and it is blown one time. This means that all other cars must be instantly stopped, in order to prevent collisions. When the grip is adjusted to the cable, the motorman blows the whistle twice; this indicates that all is well and immediately all the cars start. The testimony shows that the whistle is blown only in case of accident, which occasionally occurs five or six times per day, and again it is a week or so before it becomes necessary to use it.

The merry-go-round is located in a partly enclosed building and consists of a circular platform, perhaps forty feet in diameter, upon which are stationary hobby horses and-goats, for the children to mount. It is-operated by steam power, and the platform revolvos around a large center pole at a moderate gait. A steam organ is also attached to the merry-go round which discourses music pleasing and familiar.

The plaintiff, as I have before said, claims'that the defendants are guilty of maintaining a private nuisance, by reason of their operation of the several amusements at the park after 9:30 p. m., and on the Sabbath day.

The plaintiff, in order to maintain the’ issues on her part, called fourteen witnesses, three men and eleven women (including herself,) all living within the vicinity of the park, from three hundred feet to one-quarter of a mile, two of whom, Gov. Thomas and Edward Hamilton, testify that they are never disturbed by the noise, but Gov. Thomas testifies that he can bear the noise when the wind is in the right direction, and from a religious stand-point, the-amusements are wrong, because they are unlawful and have a bad effect on the morals of the coming generation. Mrs. Fisher, to-use her own language, says, “that the noise disturbs my rest at nigh ; disturbs the quiet of Sunday,and disturbs me in the knowledge-that it is a place, conducted in such a way or at such hours as to produce a deteriouseffect upon the morals of the community.” The noise does not interfere with conversations in the house, in the sense that we cannot hear or understand each other. It is simply a disturbance that renders us-nervous.” Again she says: — The Sunday performance and the want of rest at night disturbs me most — disturbs me scarcely more from a Christian stand-point than the late and improper hours on other nights- and the immorality that results from those late hours and the congregating of young people.” Again, “Ido not expect to pay any attorney fees in this cases, as others in the interest of morality will pay them.” Again, “These crowds that annoy me at night and who make these noises and awaken me, are people who live in the immediate vicinity and employes of Mr. Kirk on their way home. ”

The other eleven witnesses who were called on behalf of plantiff, all testified that they were disturbed at night, awakened from their sleep and annoyed by the large Sunday crowds at the park, and that the noise, comes chiefly from the scenic railway and merry-go-round ; but none of them testify so strongly from a moral and religious standpoint as the plaintiff, with the possible exception of Mrs. White and Gov. Thomas. Thus it will be seen that twelve witnesses-testified as to physical disturbance.

The defendants called twenty-four witnesses, including defendant Kirk, five women and nineteen men, all living and doing business in the immediate vicinity of the park from one to five years, and located from fifty to fifteen hundred feet from the* amusements. They, without an exception, testified that they were never disturbed by any noise or confusion coming from the park; that they were never disturbed in their rest or sleep, nor in any manner affected in the peaceable and quiet enjoyment of their homes, at night time or on Sunday, and those who have visited the park on Sunday, found the people assembled there to be orderly and well-behaved, although of a mixed character.

The court and counsel for the parties, visited the park last Monday, and saw the scenic railway and merry-go-round in operation, but very few persons were present however. From a personal inspection and the evidence adduced, we find that the noise coming form the scenic , railway, is about the same as that coming from any other elevated railroad, and sounds very much like a' heavy wagon propelled rapidly over a bridge, or an electric street car passing rapidly over a street paved with granite. The whistle is about the same as we find used in factories, and on all steam engines, and can be heard for a mile or so. While we were standing at the residence of Mrs. Fisher, ten or twelve boys boarded a car, and several trips were made by them ; they were instructed to yell as loud as possible eia route, and the court is informed, and believes they obeyed orders manfully.

Mrs. Fisher’s residence is the north half of a double frame house, located ahout eight hundred feet north of the railway. Between her residence and the south half of the railway, there are a number of frame dwellings and the building known as the Battle of Gettysburg, which entirely obscures the south half of the railway, so that the cars can neither be seen nor heard. The northeastern portion of the railway is plainly visible from her residence, and the cries of the passengers could be heard, but not to the extent as described by the witnesses for plaintiff. The day was still, and perhaps the test was not a fair one. At the same time, the merry-go-round was in full operation, with the organ playing, and it was simply impossible to hear it. You can neither see nor hea1- it from the residence of plaintiff, and the court ventures the assertion, that it could not be heard four hundred feet away, last Monday. W7e think counsel for plaintiff who were present, will bear witness to the truth of this statement.

It would simply be a useless and unnecessary task for the court to undertake to review all of the authorities bearing on,this question. The text books and reports, both in England and America, are pregnant with decisions relating to the subject. We find after all, that each case largely depends upon the particular facts and circumstances surrounding it. There are a few fundamental principles underlying the entire structure of equity jurisprudence which we desire to call attention to, and with those we will be content.

First — -As to the right to invoke the aid of a court of chancery. “The eases which justify the interference of a court of chan-* eery, should be those of clear, incontestable, well-defined right. ” “The power to grant writs of injunction, is one of the extraordinary powers of a court of chancery, and should be only exercised to prevent injuries that would otherwise be irreparable. Walker v. R. R. Co., 8 Ohio, 39; Stewart v. R. R. Co., 14 Ohio, 358.

“For an injunction, the courts require that there should be no doubt in the case, and that the plaintiff must make out a clear and unexceptionable right. Courts will not exercise this necessary authority when the right is doubtful, or the facts not definitely ascertained. The right must be clear. Spangler v. Cleveland. 48 Ohio St., 536; Burham v. Kempton, 44 N. H., 92.

“The concurrent jurisdiction of courts of equity by the writ of injunction with courts of law in cases of private nuisances is ancient and well established. To warrant the interference, a strong case of apparent necessity must appear. As a general rule, it is necessary that the person seeking the aid of equity to restrain a private nuisance, should have first established his right at law, and where the right is doubtful and has not been established, the .relief will be withheld. High on Inj., sec. 740; McCord v. Hunt, 12 Ohio, 389; Stafford v. Lyon, 37 N. J. Eq., 94, and numerous cases cited.

Upon this question our own Supreme Court say “The ground upon which the interference of a court of equity is invoked, is, that the mischief to complainant’s property is irreparable, and that actions at law fnrnish no adequate relief.” “While this is an admitted ground of equity jurisdiction, courts of chancery will carefully abstain from interference where the injury will support an action at law, unless the party seeking such aid brings himself within the clear principles of. equitable relief. But in cases of this sort, equity will not interfere until the right and the facts have been established beyond doubt at law.” McCord v. Hunt. 12 Ohio, 389.

“The rule, however, requiring the right to be first established at law, is to be understood as applying only to cases where the right is itself doubtful, or in dispute.” Sprague v. Rhodes, 4 R. I, 301; Pa. R. R. Co. v. N. Y. & L. B. R. R. Co., 8 C. E. Green, 157.

“When the injury complained of is not per se a nuisance, but may or may not become so, according to circumstances, and when it is uncertain, indefinite, or contingent. or productive of only possible injury, equity will not interfere.” High on Inj., sec. 742, and numerous authorities cited under note 6.

Touching this question, Lord Brougham observes: “If the thing sought to be prohibited is in itself a nuisance, the court will interfere and stay irreparable mischief without waiting for the result of a trial. But where the thing sought to be restrained is not unavoidable and in itself noxious,but only something which may, according to circumstances, prove so, the court will refuse ! to interfere until the matter has been tried i at law. The distinction between the two j kinds of erection or operation, is obvious, and the soundness of that discretion seems undeniable, which would be very slow to interfere with the thing to be stopped. , While it is highly beneficial to one party, it ■ may very possibly be prejudicial to none, i The great fitness of pausing much before we interrupt men in those modes of enjoying j or improving their property which are prima i facie -harmless, or even praiseworthy, is ! equally manifest, and it is always to be , borne'in mind that the jurisdiction of this ■ court over nuisances by injunction at all, is ' of recent growth, and has not until very i lately been much exercised, and has at various times found great reluctance on the part of learned judges to use it even in cases where the thing or the act complained ; of, was admitted to be directly or immedi- i ately hurtful to the complainant. ” Earl of Ripon v. Hobart, 3 Ml. & K., 16.

Coming now to the Sunday feature of this action, Chief Justice Fuller, in the case of the World’s Columbian Exposition v. The United States, where it was sought to enjoin the opening of the gates of the World’s Pair on Sunday, because the same was in contravention of the acts of congress, and because of the great injury and grievous prejudice to the common public good and to the welfare of the people of the United Staies.says: “The office and juirsdiction of the court of equity, unless enlarged by express statute, are limited to the rights of property. The court is conversant only, with questions of property and themaintenanee of civil rights, and exercises no jurisdiction in matters merely political, illegal, criminal, or immoral. 6 U. S. C. C. A. R., p. 70. In re Sawyer, 124 U. S., 200; 8 Sup. Ct. R., 482; Cope v. Association, 99 Ills., 489; Sparhawk v. Union Pac. Co., 54 Pa. St., 401; High on Inj., 20.

In Sparhawk v. Union Pac. R. Co., 54 Pa. St., 401, we find a case where a bill was filed by pew holders m churches and owners of dwelling houses along the line of defendant’s street railway, to restrain the running of carson Sunday. The bill charged that by reason of defendant’s running its cars on Sunday, complainants have been and are and will be deprived of their rights of enjoying the Sabbath day as a day of rest and religious exercises free of all disturbanee from merely unnecessary and unauthorized wordly employment; that they have been, are and will be thereby deprived from enjoying peaceably and without interruption the worship of Almighty God in their accustomed places of public worship or in their own residences on the Sabbath day, and that the lawful peace of the said day is thereby destroyed and broken,and the rights to property which they possess in their said churches or places of worship and in their private residences are and will continue to be thereby infringed upon, and their said churches and residence deteriorated in value,

In passing upon the question, Thompson, J., saysIt seems to me that this is clearly but a charge of the violation of the provisions of the act of the Assembly of 1874, which interdicts wordly employment on the Sabbath day, and that it describes nothing but the consequences which are intended to be prohibited by that act. If this beso, then it is not a case of special injury, but only that which results from the public offense or wrong to all and every one in the community alike where the act is committed. It is not possible, I think, to discover the connection between the cause of complaint and a private injury excepting in and through the act as prohibited by the statuto. And if we are to regard it as a common law offense, the charge in the bill does no more than to describe the fruits of the offense. Rest and quiet on the Sabbath day, with the right and privilege of public and private worship unobstructed by any mere wordly employment, are exactly what the statute was passed to protect. The deprivation of these privileges is the same averred the complaint, and this bill is essentially therefore a bill to enforce by injunction a penal statute ; and to do that, is not our province, especially atthesuit of a private party. When a public injury results from a breach of the public law, the public wrong may be redressed by a private remedy, because the private remedy stops the wrong doer. Equity will not restrain an act which is illegal merely. The penal law to prevent wordly employment on the Sabbath has provided the machinery for punishing it, and to it the violation must be referred. One reason why equity cannot interfere is, that there is a remedy at law by statute which must be presumed to be adequate. The true rule in a charge of injury from nuisance is, that it be such as naturally and necessarily re-suits to all alike who come within their influence.”

Sec. 7032a, of the Revised Statutes of Ohio, provides, that: “Whoever on the first day of the week, commonly called Sunday, participates in or exhibits to the public, with or without charge for admittance, in any building, room, ground, garden, or other place in this state, any theatrical or dramatic performance of any kind or description, or anv equestrian or circus performance of jugglers, acrobats, rope dancing, sparring exhibiti-ns, variety shows, minstrelsy, living statuary, ballooning, or any base-ball playing, or any ten-pins, or other games of similar kind or kinds, or participates in keeping any low or disorderly house of resort, or shall sell, dispose of. or give away any ale, beer, porter, or spirituous liquors in any building appendant or adjacent theieto where any such show, performance or exhibition is given, or house or place is kept, he or she shall, on complaint ade within twentydays thereafter, be fined in any sum not exceeding one hunch'd dollars, or be confined in the county jail not exceeding six months, or both, at the discretion of the court.”

Van Skaik & Mcllhenny. Young & Young and F. W. Howell, for Plaintiff.

Gunckel, Rowe& Shuey, McMahon & McMahon, and J. P. Spriggs, for Defendant.

Complaint is made by the plaintiff, and testimony was introduced to establish the fact, that the park is a refuge for the assembling of disorderly people on Sundays and in the evenings. If such be the fact, ample remedy is provided by the above section to punish all wrong duers by appealing to the criminal courts, which are open and free to all. If defendants are guilty of keeping a disorderly place, all those who participate in so doing are amenable to the criminal side of this court, and on conviction can be fined one hundred dollars, or imprisoned for six months, or both, at the discretion of the court.

Sec. 7033 Rev. Stats., provides that:

“Whoever, being over fourteen years of age, engages in common labor on Sunday, (works of necessity and charity excepted,) shall, on complaint made within ten days thereafter, be fined not more than rive dollars, but this section does not excend to those who conscientiously observe the seventh day of the week as the Sabbath, nor shall it be construed so as to prevent families emigrating from traveling, water-men from landing their passengers, superintendents or keepers of toll bridges or toll gates from attending the same, or ferrymen from conveying travelers over waters.”

It is impossible for the defendants to operate these 'amusements on the Sabbath day without violating the provisions of the above section, which is known as the “Common Labor Act.”

The operation of the various amusements by the defendants is not a nuisance per se. We find that defendant corporation is legally authorized to establish and maintain a placo of amusements at the park. It may become a nuisance, however, by being improperly managed and conducted, or by operating the amusements at unseasonable hours. The testimony shows that the corporation has invested 357,000.00 and that there is a mortgage on the premises of $3,500.00.

We find that the amusements are innocent, participated in chiefly by children, and that they are neither sinful nor hurtful; no intoxicating liquors of any kind are either sold or given at the park nor within one and one-half miles thereof; the place is under the surveillance of the police department of Dayton, which under the present management is of itself a guaranty of peace and good order.

Ihe burden of proof is on the plaintiff to make out a case for a temporary restraining order as prayed for. Measuring the proof from a numerical stand-point, we find that it stands twelve to twenfy~four against her. Measuring if according to the weight, we find that it largely preponderates in favor of the defendants. We believe Mrs. Fisher to be an honest, well meaning woman, who thoroughly believes that it is the duty of the civil courts to strictly enforce the divine injunction “Remember the Sababth day to keep it holy.” We further believe that she is not acting altogether in her own interest, but in a measure for the benefit of the pub-lie. We believe that the keeping open of the park on Sundays is a shock to her moral sensibilities, and such a departure from her ideas of right and wrong, that it has largely controlled her action in this matter. But we by no means intend to say or claim that she has not told the truth or tnat she has not suffered physical discomfort in the use and occupancy of her property at times. But it is fundamental that she cannot vindicate others’ rights by process in her own name, nor employ civil process to punish wrongs to the publir. As is well settled in thecaesof Bloom v. Richards, 2 Oho St., p. 388, in the opinion delivered by Judge Thurman, under our form of government no code of morals or rule of religious conduct is recognized as a part of the organic law of the land. If we are not properly protected in the enjoyment of our personal and property rights under existing laws, appeal must be made to the legislative and not to the judicial branch of our government. It is the duty of the courts to administer the law as they find it,and not to make it.

An order may be taken in this case, restraining defendants from operating said amusements between the hours of 10 p. ra. and 8 a. m., to remain in force until the further order of the court.  