Proceeding by petition in equity, by E. M. Cobb, appellee, against Alfred Schmidt and Titus Schmidt, trading as Schmidt Bros., appellants. The petition was filed in the district court of Dubuque county, Iowa, September 4, 1884, and had for its object the abatement of an alleged nuisance maintained by the appellees in the form of a saloon in the city of Dubuque. The suit was instituted under the following sections of the Amended Code of Iowa:
'Sec. 1526. Any citizen of the state, except hotel-keepers, keepers of saloons, eating-houses, grocery-keepers, and confectioners, is hereby permitted, within the county of his residence, to manufacture or buy and sell intoxicating liquors for mechanical, medicinal, culinary, and sacramental purposes only: provided, he shall first obtain permission from the board of supervisors of the county in which such business is conducted,' etc.
'Sec. 1540. If any person not holding such permit, [viz., to buy and sell intoxicating liquors for the purposes set out in section 1526,] by himself, his clerk, servant, or agent, shall directly or indirectly, or by any device, sell, or in consideration of the purchase of any other property give, to any person any intoxicating liquors, he shall for the first offense be deemed guility of misdemeanor,' etc.
'Sec. 1542. No person shall own or keep, or be in any way concerned, engaged, or employed in owning ork eeping, any intoxicating liquors, with intent to sell the same, within this state, or to permit the same to be sold therein in violation of the provisions hereof; and any person who shall so own or keep, or be concerned, engaged, or employed in owning or keeping, such liquors with any such intent, shall be deemed for the first offense guilty of a misdemeanor.' (The offender is then subjected to cumulative penalties, the maximum being $500 fine, or six months in the county jail, or both.)
'Sec. 1543. In cases of violation of the provisions of either of the three preceding sections, or of section fifteen hundred and twenty-five of this chapter, the building or erection of whatever kind, or the ground itself, in or upon which such unlawful manufacture or sale, or keeping with intent to sell, use, or give away, of any intoxicating liquor, is carried on or continued or exists, and the furniture, fixtures, vessels, and contents, is hereby declared a nuisance, and shall be abated as hereinafter provided; and whoever shall erect or establish, or continue to use, any building, erection, or place, for any of the purposes prohibited in said sections, shall be deemed guilty of a nuisance, and may be prosecuted accordingly, and upon conviction shall pay a fine of not exceeding $1,000, and costs of prosecution, and stand committed until the fine and costs are paid; and the provisions of chapter 47, tit. 25, of this Code shall not be applicable to persons committed under this section. Any citizen of the county where such nuisance exists, or is kept or maintained, may maintain an action in equity to abate and perpetually enjoin the same; and any person violating the terms of any injunction granted in such proceedings shall be punished, as for contempt, by a fine of not less than five hundred nor more than one thousand dollars, or by imprisonment in the county jail not more than six months, or by both such fine and imprisonment, in the discretion of the court.'
The 'petition' as amended is as follows:
'The plaintiff, agent of the Citizens' Law and Order League of Dubuque, complaining, shows to the court and avers as follows:
'Paragraph 1. That he is a citizen of Dubuque county, state of Iowa.
'Par. 2. That defendants, Schmidt Brothers, a firm composed of Albert Schmidt and Titus Schmidt, at the city and county of Dubuque, at the Iowa brewery, so called, situated upon Couler avenue, in said city, and upon lot number 5, in Brewery addition, as platted and recorded with Dubuque deeds, have established a saloon for the keeping and sale of intoxicating liquors, towit, whisky, gin, wine, and beer, at retail, as a beverage, in violation of law; and are now keeping, and employed and engaged in keeping, said intoxicating liquors in said saloon, with the intent to sell the same, and with the intent to permit the same to be sold therein contrary to the provisions of section 1542 of the Code of Iowa, as amended and substituted by an act of the general assembly of the state of Iowa, approved April 3, 1884.