of counsel, and Alvin Gerlack and J. E. White, [quirement of due process is fully complied both of San Francisco, amici curiæ), for re- with. Littleton v. Fritz, 65 Iowa, 488, 22 spondents. N. W. 641, 54 Am. Rep. 19; State v. Jordan, 72 Iowa, 377, 34 N. W. 285; State v. Gilbert, Har-126 Minn. 95, 147 N. W. 953.

Civ. No. 2191:

Edward C. Harrison and Maurice E. rison, both of San Francisco, for appellant. J. A. Cooper, of San Francisco, for respond

ents.

[3] The Fourteenth Amendment to the federal Constitution does not affect or in any manner curtail the police power of the state (Barbier v. Connolly, 113 U. S. 27, 31, 5 Sup. Ct. 357, 28 L. Ed. 923), and since all owners hold their property subject to such police

LENNON, P. J. These actions were instituted against the defendants pursuant to the provisions of an act entitled "An Act declar-power and to such reasonable conditions as ing all buildings and places nuisances wherein or upon which acts of lewdness, assignation or prostitution are held or occur, or which are used for such purposes, and providing for the abatement and prevention of such nuisances by injunction and otherwise." Stats. 1913, pp. 20, 22.

In the case of People of the State of California v. Casa Co. et al., the trial court made its findings in substantial accord with the allegations of the complaint, and to the effect that the designated building had been and was being used and occupied for the purposes of lewdness assignation, and prostitution, and that because thereof the said building was a public nuisance. Accordingly judgment was entered decreeing that said building and each and every part thereof be effectively closed against its use for any purpose, and so kept closed for a period of one year, unless sooner released in the manner provided by law.

may be deemed by the governing authority essential to the public safety, comfort, and health, the real question to be determined is whether or not the act is a valid exercise of the police power by the Legislature.

[4] Appellants contend that the provision of the statute in question permitting the building to be closed and kept closed against its use for any purpose for one year unless sooner released in the manner provided by law is unduly harsh, unreasonable, and oppressive, and that it is in effect a penalty. In answer to this contention we need only point out that the states of Nebraska, Washington, Minnesota, and Illinois all have red light abatement statutes similar in substance and form to the act under discussion, and in each of these states this provision of the act has been held constitutional and valid against precisely the same contention made here. English v. Fanning, 96 Neb. 123, 147 N. W. 215; State v. Emerson, 90 Wash. 565, 155 Pac. 579, L. R. A. 1916F, 325; State v. Gilbert, 126 Minn. 95, 147 N. W. 953; People v. Smith, 275 Ill. 256, 114 N. E. 31, L. R. A. 1917B, 1075.

the provisions of section 6 of the act in regard to punishment for contempt are void because they are in the nature of special legislation and in conflict with section 1218 of the Code of Civil Procedure, fixing a penalty for contempts generally. In the first place, appellants are not aggrieved by this section, inasmuch as no contempt was alleged or found to have been committed, and, in the second place, this provision is not a necessary or inseparable part of the act, and may therefore be entirely eliminated, and the remainder of the statute be treated as valid. Davidson v. Von Detten, 139 Cal. 469, 73 Pac. 189; State Commission v. Chicago Co., 275 Ill. 555, 114 N. E. 325, Ann. Cas. 1917C, 50.

The appeal is from the judgment upon the judgment roll alone, and the points made in support of the appeal are directed solely to the constitutionality of the act in question. [1, 2] Appellants contend that the act provides for a judgment which may deprive a [5] It is unnecessary to consider the man of his property in consequence of mis-point made by appellants to the effect that demeanors committed thereon without his knowledge, connivance, or consent, and there fore that it violates the Fourteenth Amendment to the federal Constitution. This point is not well taken. Every owner of property who leases it or puts another in possession of it owes to the public a certain degree of diligence, and proof of the general reputation of the place is sufficient to impute to him knowledge. State v. Gilbert, 126 Minn. 95, 147 N. W. 953. Furthermore, the suppression of a nuisance is essentially a proceeding in rem, operating upon the property used in the maintenance of the nuisance, and "while, therefore, the owner having no actual knowledge of the character of the business carried on in his building might personally be bound for the costs, the building and furniture may nevertheless be proceeded against and subjected to the forfeitures prescribed by the statute." People v. Barbiere, 166 Pac. 812. The act does not undertake to provide for a judgment enforcing and insuring abatement of the nuisance. otherwise than as against persons who are properly joined as defendants in the action and brought in by proper process and afforded an opportunity

this appeal are fully discussed and decided This point and the other points raised on adversely to appellants' contentions in a recent decision of the appellate court of the Third district in the case of People v. Barbiere, 166 Pac. 812, and we are satisfied with the reasoning of, and the conclusion arrived at. by Mr. Justice Hart in that case, and concurred in by his associates.

The case of Chown v. Alexandre et al.

taining defendants' demurrer to a complaint,, fortifies the presumption that the Legislasimilar in purpose and allegations to the ture intended thereby to provide a remedy case previously considered. for the prevention and abatement of a recognized evil which would in its nature be a civil proceeding rather than a criminal prosecution (Pen. Code, §§ 315, 316; State v. Gilbert, 126 Minn. 95, 147 N. W. 953).

[6] The only additional point raised in this case involves the constitutionality of the act under consideration to the extent that it provides for and permits the institution and maintenance of the action by an individual citizen in his own name without a showing that he is specially damaged.

[10, 11] The jurisdiction of courts of equity to restrain and enjoin common nuisances affecting the public generally has never been [7] In this behalf it is argued that a gen- denied, and is not here disputed. But in this eral law can be made applicable to the pres- connection it is argued that the statute is ent case, and that therefore the act in ques-invalid because it authorizes an action to tion is objectionable as special legislation. abate a nuisance to be brought by an inIt is well settled that the Legislature has dividual citizen without a showing that he power to determine whether a general law is especially damaged. The reason for the can be made applicable.to any given case rule in this behalf was to prevent a multiand to make different laws for different plicity of suits, but that is a mere matter of classes of persons, and we may not interfere legislative discretion, and questions of policy with its determination upon that question or expediency in legislation are for the lawunless the classification is palpably arbitrary. making power itself, and not for the courts People v. Mullender, 132 Cal. 217, 221, 64 to determine. Littleton v. Fritz, 65 Iowa, Pac. 299. It has been decided that the clas- 488, 22 N. W. 641, 54 Am. Rep. 19. sification is justifiable and in furtherance of the public policy of the state to suppress houses of prostitution. Pon v. Wittman, 147 Cal. 280, 292, 81 Pac. 984, 2 L. R. A. (N. S.) 683.

[12] It is well established that the state may confer the right to bring an action to abate a public nuisance upon a private individual in addition to his existing right to bring such actions where there is a spe[8] It is contended that, inasmuch as the cial injury to him (State v. Fanning, 96 act provides not merely for the abatement of Neb. 123, 147 N. W. 215; Littleton v. Fritz, the nuisance described, but also for the re- supra), and in this state this power is moval and sale of all the personal property expressly conferred by section 369 of the used in the maintenance of the nuisance and Code of Civil Procedure, which states that for the effectual closing for one year of the a person expressly authorized by statute may building or place against its use for any pursue without joining with him the person for pose, unless sooner released in the manner whose benefit the action is prosecuted. provided by law, that the act is penal in its nature, and that therefore a proceeding under it constitutes a prosecution within the meaning of section 20 of article 6 of the state Constitution, and consequently must be conducted in the name of the people of the state.

[13] The point urged by amicus curiæ to the effect that the act is in the nature of a bill of attainder is without merit. The purpose of attainder at common law was to punish and its consequences were forfeiture and corruption of blood. Jones' Blackstone, vol.

That the word "prosecution" in section 202, § 430. The object of the act in question is

of article 6 of the Constitution is used in a limited sense, viz. as signifying only prosecutions of a criminal character is not questioned, but it is insisted that, while the action is in form a civil action in equity to abate a nuisance, in substance it is a criminal prosecution. We do not so construe it. The purpose of the statute as stated in its title is "the abatement and prevention of such nuisances by injunction and otherwise," and, we think, the provisions of the statute merely effectuate this purpose.

not to punish; its purpose is to effect a reformation in the property itself. Furthermore, there is no forfeiture of property. The closing of the place for one year with the privilege of sooner releasing it in the manner provided by law is merely a means of abating the nuisance, and that it is a reasonable method for enforcing the judgment of abatement has been decided in several jurisdictions where similar enactments exist. People v. Smith, 275 Ill. 256, 114 N. E. 31, L. R. A. 1917B, 1075; State v. Fanning, supra.

It follows that the judgment in the case of People v. Casa Co. is affirmed, and the judgment in the case of Chown v. Alexandre et al. is reversed.

[9] Every presumption is in favor of the constitutionality of the statute (Stubbe v. Adamson, 220 N. Y. 459, 116 N. E. 372, 376), and the fact that the criminal aspect of the maintenance of houses of prostitution was already fully covered by existing statutes We concur: when the statute in question was enacted | ARDS. J.

KERRIGAN, J.; RICH

DEY V. MCALISTER, Superior Court Judge. said court until such time as the Supreme (No. 1620.) (Supreme Court of Arizona. Jan. 4, 1918.) 1. MANDAMUS 1-PURPOSE WHEN ISSUED. The function of a writ of mandate is to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust, or station, and issues when the party has no other legal remedy, and the duty of which performance is sought is clear and indisputable.

MOUNCE et al. v. GARRETT. (Supreme Court of Arizona. Dec. 31, 1917.) 1. APPEAL AND ERROR 786-DISMISSAL PROCEEDINGS FRIVOLOUS or for Delay. Where, after an appeal was perfected, no subsequent steps were taken to prosecute the apPara-peal to effect, the appeal will be dismissed, as taken for delay.

ANCE.

Purchaser of land abutting strip deeded to city takes with notice that the offer so made by his grantor to the city was contingent on acceptance. STREETS REVOCA

4. DEDICATION

TION.

29

A purchaser of land abutting strip deeded by his grantor to city for alley takes with notice that if not accepted within reasonable time STREETS his grantor may revoke.1 ACCEPT5. DEDICATION

olous appeal. The motion is not opposed. 3. DEDICATION
With the motion is filed the certificate of the
clerk of the superior court, showing, among
other things, that on the 19th day of April,
1917, appellant perfected his appeal from a
judgment entered in favor of appellee for the
sum of $250, with interest and costs, and
that subsequent thereto no steps whatever
have been taken by appellant to prosecute
his appeal to effect. This appeal appears to
have been taken solely for delay, and on the
authority of Willis v. Ivy, 16 Ariz. 120, 141
Pac. 570, Nienstedt v. Dorrington, 16 Ariz.
121, 141 Pac. 569, and Baca v. Noyes-Norman
Shoe Co., 18 Ariz. 386, 161 Pac. 884, it is or-
dered that, upon appellee paying to the
clerk of this court the cost required by law
therefor, said appeal be docketed in this
court, and the same dismissed.

[2] It is further adjudged that a sum not exceeding 10 per cent. of the amount of the judgment appealed from be and the same is hereby fixed at $25, which amount is awarded to appellee as damages for a frivolous appeal. Appellee recovers his costs in this court.

. CUNNINGHAM and ROSS, JJ., concur.

WALKER v. WALKER. (No. 2265.) (Supreme Court of Nevada. Jan. 8, 1918.) On a petition for rehearing. Petition denied.

For former opinion, see 164 Pac. 653.

ANCE.

29

Where a purchaser from the original owner took after deed to city of land for alley which was never accepted, and the grantor by another conveyance granted the strip, and the grantee procured judgment quieting title, the first purchaser could not assert that the strip was an alleyway.2

Appeal from District Court, Salt Lake County; Geo. G. Armstrong, Judge.

Action by the William J. Lemp Brewing Company against P. J. Moran, Incorporated, Judgment for defendant, and plaintiff appeals. Affirmed.

Wm. H. Leary and J. M. Lanigan, both of Salt Lake City, for appellant. Pierce, Critchlow & Barrette, of Salt Lake City, for respondent.

CORFMAN, J. This action was brought by the plaintiff to determine its rights to a strip of ground one rod wide and two rods long, situate in block 7, plat A, Salt Lake City survey.

Block 7 consists of eight city lots, numbered one to eight, both numbers inclusive. In the year 1889 John F. Heath was the SANDERS, J. The application of respond-owner in fee of certain portions of said ent for a rehearing in the above-entitled block, and while such owner, on the 8th day cause is denied. On motion of the appel- of May of said year he and his wife, by. lant it is ordered that the concluding para-deed duly executed and acknowledged, deedgraph of the opinion of the court, indicated to Salt Lake City, in trust for public use, ing the order of reversal to be made herein, certain streets and alleys through their property in said block, including the strip inbe amended so as to read as follows: We conclude that the court erred in strik-volved in this action. Said deed was recording appellant's answer and sustaining re-ed in the office of the county recorder of spondent's demurrer thereto, and such order, Salt Lake county. The strip in question was and so much of the judgment as depends also marked upon the ground by fence lines on the east and west sides and closed by a thereon, is hereby reversed. fence to the south so as to make it a blind alley. Subsequently, without reference to the strip of land in question as an alley, or otherwise, Heath, by deed dated September 12, 1889, conveyed a part of his holdings in

MCCARRAN, C. J., and COLEMAN, J.,

concur.

WILLIAM J. LEMP BREWING CO. v. P. J. said block, nine by ten rods, described by

MORAN, Inc. (No. 3078.)

(Supreme Court of Utah. Dec. 3, 1917.) 1. DEDICATION 15, 31, 34-STREETS-INTENT ACCEPTANCE.

Dedication may be express or implied, but the intention to dedicate must exist, and there must be some form of acceptance within a reasonable time.

STREETS ACCEPT

Deed by landowner to city of land for alley when not accepted is a mere revocable offer, though recorded.

metes and bounds, lying immediately west of said strip and abutting on Third West and Eighth South streets, to William J. Lemp, a predecessor in interest of the plaintiff. Afterwards, by deed dated June 26, 1909, Heath conveyed the strip of land in question, with other lands in said block, to

1 Sowadzki v. Salt Lake County, 36 Utah, 127, 101 Pac. 111; Schettler v. Lynch, 23 Utah, 305, 64 Pac. 955.

2 Sowadzki v. Salt Lake County, 36 Utah, 127, 104 Pac. 111.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The plaintiff here was not made a party to said action.

William J. Barrette, a predecessor in interest of the defendant, and therefore the respective parties to this action deraign their The plaintiff herein brought its action and title to lands in said block, including the in its complaint alleged ownership for right strip of land involved herein, from one com- of way purposes in the strip in question, as mon source. To better illustrate the respec-stated in its brief filed in this court, "untive holdings of the parties in said block, der the theory that, where an owner plats with respect to said strip of ground, we have a certain tract of his property, records the the following plat: plat, marks the streets and alleys upon the

It appears from the record that Salt Lake | ground, and then sells to a purchaser who City, as a municipality, did not accept the has knowledge of those facts, and who pays trust sought to be imposed upon it under the a higher price for the lot he buys than he deed made by Heath in 1889, designating the otherwise would have paid if the property strip of ground in question as an alley, and, had not been platted, the purchaser obtains so far as known, the same was never used an easement for a private right of way over by the public, nor by the plaintiff, nor its the streets and alleys abutting upon his lot predecessors in interest, as an alley, or and the fee to one-half of the same." The otherwise. In 1911 P. J. Moran, the then answer of the defendant denied ownership, owner of the strip, and the immediate gran-or any right whatever, in the plaintiff, and tor of the defendant, brought an action in by way of counterclaim alleged defendant's the district court of Salt Lake county against ownership in fee; that the claims of plaintiff Salt Lake City to quiet the title to said ground in himself, and in said action, after issue joined, and a hearing upon the merits, it was decreed that the plaintiff, P. J. Moran, was the owner in fee of said ground; that the defendant, Salt Lake City, had no estate, right, title, or interest in or to said strip or alley, either in its own behalf or as trustee for the public use, or otherwise, or at all; that all adverse claims of Salt Lake City in its own behalf, and in trust for the public, and all persons claiming, or to claim, through or under said city, as trustee

are without right, etc., and prayed that its title be quieted as against the claims of the plaintiff. The trial court found the issues for the defendant. On appeal the plaintiff assigns numerous errors as having been committed by the trial court, and the defendant has made many cross-assignments.

There is very little conflict in the testimony, and the salient facts brought out at the trial were, substantially, as we have heretofore stated. The one controlling question sought to be litigated between the parties, and ultimately to be determined, how