ty, before the rights of the parties can be finally determined. We can imagine a case in which a tenement might be alleged to be a nuisance by reason of its use for the unlawful sale of intoxicating liquors for medicinal purposes. Under the rules of practice in equity, it can hardly be contended that the court would be called upon to issue an injunction in such a case, until the existence of the nuisance had been established at the final hearing. On the other hand, we can imagine a case in which a tenement used for the illegal sale of intoxicating liquors might be so situated and so kept that every day's continuance of it would inflict serious injury upon the people in its vicinity. In such a suit a court might well take measures to abate the nuisance upon a preliminary hearing. In the case at bar the respondents, for the purposes of the hearing, admitted that the allegations of the petition were true. By this admission the principal reason for not granting an injunction before the final hearing was eliminated from the case. Usually there is a question of fact in dispute, of a kind which, at the request of either party, is commonly submitted to a jury. Indeed, it can be argued with much force, but whether effectually it is unnecessary now to decide, that upon this question as to the use made of the property, the parties at the hearing upon the merits have a constitutional right to a trial by jury. See Merchants Nat. Bank v. Moulton, 143 Mass. 543, 3 New Eng. Rep. 734. The respondents having conceded facts which, if proved at the final bearing, will require a decree in favor of the petitioners, it was within the power of the presiding judge, in the exercise of his discretion, to order a preliminary injunction. Injunction to issue. of law may be detrimental to the morals of a community, but the place where they are sold or kept is not thereby commonly rendered physically dangerous to the health or safety or offensive to the senses of the persons who dwell near it, and the statute applies to any keeping of intoxicating liquors in any particular building, place, or tenement with the intention of illegally selling them anywhere within the Commonwealth. Com. v. Gillon, 148 Mass. 15. The jurisdiction given by the statute is jurisdiction in equity; the only fact required to be alleged in the information is that the buildingplace, or tenement described, "is used for the illegal keeping or sale of intoxicating liquors;" the only remedy given is "to restrain, enjoin, or abate the same as a common nuisance;" and the only process provided is that "an injunction for such purpose may be issued by any justice of either" the supreme judicial court or the superior court. There is no provision for the destruction or the forfeiture of the building, place, or tenement, or of any other property, or for shutting up the building or tenement, or for excluding any person from the possession; and it can hardly be contended that any process under this statute could be issued for destroying a building or tenement or for changing the title or physical condition of a building, place, or tenement. Buildings, places, and tenements used for the purposes described in this statute have for many years been declared to be common nuisances by other provisions of statute, and it has never been considered that they could be destroyed except in cases falling within the express authority given by Pub. Stat. chap. 101, § 10; Pub. Stat. chap. 107, §§ 6-9. The injunction issued in this case, and probably the only injunction that could be issued, is one enjoining the respondent from using or permitting to be used the building, place, or tenement for the illegal keeping or sale of intoxicating liquors. The Public Statutes prohibit such use as a crime, and the only effect of the injunction is to subject the respondent to the process used for punishing persons guilty of violating injunctions, in addition to, or in substitution for, criminal process. The Legislature apparently thought that a remedy in equity would be more speedy, or more certain, or more efficient than that by complaint or indictment. The present case raises the question of the constitutionality of Stat. 1887, chap. 380, only so far as it relates to the use of a building, place, or tenement for the illegal keeping or illegal sale of intoxicating liquors. The stat- The issuing of the injunction of itself adds ute plainly provides for a public prosecution, nothing to the prohibition of the statutes, but to be instituted either by a district attorney or the intention plainly is to call into use the peby ten or more legal voters for the purpose of culiar process employed by courts of equity in preventing a violation of the statutes regulat-punishing persons guilty of willful violations ing the sale of intoxicating liquors. The statute was not enacted for the protection of private rights. In proceedings under it, it is immaterial whether the use makes the building, place, or tenement dangerous or offensive to the neighbors or to the inhabitants generally. The keeping or sale of intoxicating liquors may be so secret as to be unknown to them, or they may desire that intoxicating liquors be kept or sold there, yet these facts would not be a defense because the statute is enacted for the purpose of enforcing the public policy of the Commonwealth in regard to the keeping and sale of intoxicating liquors. The sale or keeping for sale of intoxicating liquors in violation of injunctions. The efficacy of the statute, apart from the fact that the prosecution may be beyond the control of the district attorney, depends wholly upon the proceedings that may be taken for punishing violations of injunctions. There can be no decree for damages, or for a penalty, or directly affecting the title or condition of property. It is not contended that the statute was intended to secure to a respondent a trial by jury in a hearing upon a charge that he had violated an injunction issued by the court, and it is the well-known practice of courts of equity to hear and determine such a charge without a jury. If the proceedings under the statute are to follow the In the case of Mugler v. Kansas, the writs of error were to the Supreme Court of the State of Kansas, and the Supreme Court of the United States was necessarily confined to the federal questions involved in the suits. analogy of bills in equity brought to enjoin | torney-General, county attorney, or any citithe creation or continuance of a private nui- zen to maintain an action in the name of the sance, it must have been the intention of the State; and it provided that if, by the judgment Legislature that it should be within the power of any court having jurisdiction, such place of a justice of either of the courts mentioned was found to be a nuisance, the sheriff, etc., to issue an interlocutory injunction and to pun- "shall be directed to shut up and abate such ish the respondent if he violated it; and it is place by taking possession thereof and destroy well known that courts of equity do not try ap-ing all intoxicating liquors found there, toplications for an interlocutory injunction with gether with all signs, screens, bars, bottles, the aid of a jury. Indeed there are many in- glasses and other property used in maintaining dications that the principal reason why the said nuisance," and that an injunction might statute was passed was to avoid a trial by jury, issue at the commencement of the action withand if the information is not regarded as essen-out giving a bond, and that any person violattially a criminal prosecution, it is difficult to ing the terms of any injunction granted in such see how the respondent is entitled as of right a proceeding should be punished as for conto a trial by jury at any stage of the proceed-tempt by a fine or imprisonment or both. The ings, unless the suit is considered as involving question was not much considered in that a controversy concerning property within the case, if it were considered at all, whether that meaning of article 15 of the Declaration of statute was inconsistent with the Constitution of Rights. But as no decree can be entered which Kansas, and the decision in effect is that the directly affects property, it may be doubted proceedings authorized by it were not inconwhether it can be considered as involving such sistent with the Fourteenth Amendment of a controversy, and the proceeding was not in- the Constitution of the United States. tended for the vindication of private rights of property whether belonging to one or to many persons. The fact that a court may grant a trial by jury upon the issue whether the building, place, or tenement was used by the respondent at the time the information was filed, Kansas v. Ziebold was an information against for the illegal keeping or sale of intoxicating Ziebold and his co-partner brought in the state liquors, does not remove the difficulty, for a court, and it was removed to the circuit court finding upon this question is not followed by of the United States by the defendants, on any decree which directly affects the person of what ground does not appear. That court disthe defendant or the condition of the property. missed the information on hearing and the A finding upon this question is a preliminary State of Kansas appealed to the Supreme Court to the issuing of a perpetual injunction, and of the United States. In that case it was comthe punishment is imposed when the defendant petent for the Supreme Court of the United has been found guilty of violating the injunc- States to decide whether the statute of the State tion. Property is often forfeited as a punish- of Kansas was inconsistent with the Constitument for crime, and suits instituted for that tion of that State, but in deciding this it would purpose are regarded as criminal or penal. follow the decision of the Supreme Court of Property is sometimes destroyed because its that State, if that court had decided it. It does nature or condition is such as to make it dan- not appear that the precise question involved gerous or offensive to the community, and suits in that case had been decided by the Supreme for the destruction of such property are not Court of Kansas, but the opinion of the Supreme necessarily either criminal or penal. I think Court of the United States cannot be considered there is no doubt that if the proceedings under as a careful determination of the question of this statute are intended to prevent the repeated the conformity of the statute with the Consticommission of a criminal act by the punish-tution of that State. See Baldwin v. Kansas, ment or the threatened punishment of a person charged with having committed it, the procedure provided by the statute is inconsistent with article 12 of the Declaration of Rights. Fisher v. McGirr, 1 Gray, 1, 22, 26; Sullivan v. Adams, 3 Gray, 476; Jones v. Robbins, 8 Gray, 329; Brown v. Perkins, 12 Gray, 89; Nolan's Case, 122 Mass. 330; Com. v. Horregan, 127 Mass. 450. The case most relied on by the complainants is Kansas v. Ziebold, reported with Mugler v. Kansas, 123 U. S. 623 [31 L. ed. 205]. The question there considered was whether § 13, chap. 128, of the Statutes of Kansas of 1881, as amended by the Statute of March 7, 1885, was in violation of the Fourteenth Amendment of the Constitution of the United States. See State v. Crawford, 28 Kan. 726, 743; Schmidt v. Cobb, 119 U. S. 286 [30 L. ed. 321]; Kidd v. Pearson, 128 U. S. 1 [32 L. ed. 346]. That section as amended declared that every place where intoxicating liquors were sold, manufactured, etc., in violation of the Act, was a common nuisance, and it authorized the At 129 U. S. 53 [32 L. ed. 641]; Spencer v. Merchant, 125 U. S. 345 [31 L. ed. 763]; Bucher v. Cheshire R. Co. 125 U. S. 555, 583 [31 L. ed. 795, 798]; Barbier v. Connolly, 113 U. S. 27 [28 L. ed. 923]; Schmidt v. Cobb, supra; State v. Whisner, 35 Kan. 271. The phrase "due process of law," contained in the Fourteenth Amendment of the Constitution of the United States, has not been construed to mean that parties shall be entitled to a jury trial in civil suits at common law, or that a person shall be tried for a felony, or a capital crime, only on presentment of a grand jury, and it is doubtful even if it would be held that the Amendment secures a trial by jury in criminal cases. The clause of that Amendment we are considering is a restraint on all the States of the United States, and the Supreme Court of the United States has taken notice that there are considerable diversities in the jurisprudence of the different States. That court says, in Walker v. Sauvinet, 92 U. S. 90, 93 [23 L. ed. 678, 679]: "This requirement of the Constitution is met, if the trial is held ac . cording to the settled course of judicial pro- | ty jurisdiction in these three classes of cases is ceedings. Due process of law, is pro- an exception to the rule cess due according to the law of the land. This process in the States is regulated by the law of the States." that a court of equity has no jurisdiction in matters of crime." In Atty-Gen. v. Tudor Ice Co. 104 Mass. 239, this court says that sitting in equity it "does not administer punishment or enforce forfeitures for transgressions of law; but its jurisdiction is limited to the protection of civil rights, and to cases in which full and adequate relief cannot be had on the common-law side of this court, or of the other courts of this Commonwealth." In Dent v. West Virginia, 129 U. S. 114, 124 The court also says that "the only cases in [32 L. ed. 623, 626], that court says: "It is suf- which informations in equity in the name of ficient for the purposes of this case to say that the Attorney-General have been sustained by legislation is not open to the charge of depriv- this court are of two classes: the one is of pubing one of his rights without due process of lic nuisances which affect or endanger the publaw, if it be general in its operation upon the lic safety or convenience and require immesubject to which it relates; and is enforceable diate judicial interposition, like obstructions of in the usual modes established in the adminis- highways or navigable waters; the other is of tration of government with respect to kindred trusts for charitable purposes, etc." See Attymatters, that is by process or proceedings | Gen. v. Jamaica Pond Aqueduct Corp. 133 Mass. adapted to the nature of the case. The great 361; Atty-Gen. v. Consumers Gas Co. 142 Mass. purpose of the requirement is to exclude every-417, 2 New Eng. Rep. 816. thing that is arbitrary and capricious in legislation affecting the rights of the citizen." Apparently any mode of procedure duly established by a State which provides for an impartial trial and does not violate the fundamental principles of general jurisprudence would be due process of law within the meaning of that Amendment. A different construction has been given by this court to the phrase "the law of the land," contained in article 12 of our Declaration of Rights; and Kansas v. Ziebold is not an authority upon the meaning of our Constitution. See Hurtado v. California, 110 U. S. 516 [28 L. ed. 232]; Jones v. Robbins, and other Massachusetts cases cited supra. It will hardly be contended that intoxicating liquors can be destroyed in this Commonwealth because they are kept for sale in violation of law, unless this fact has been found by a jury. Fisher v. McGirr, and Brown v. Perkins, supra. See Ely v. Niagara Co. 36 N. Y. 297; Gray v. Ayres, 7 Dana (Ky.) 375; Welch v. Stowell, 2 Doug.(Mich.)332; Rex v. Pappineau, 1 Strange, 686. In Mugler v. Kansas, supra, and in Littleton v. Fritz, 65 Iowa, 488, a good deal of reliance was placed upon the jurisdiction of courts of equity over informations filed by the AttorneyGeneral to enjoin public nuisances, and it is said that this jurisdiction extends not only to purprestures, but also to public nuisances, strictly so called. In Littleton v. Fritz, it was conceded, for the purposes of the decision, that at the time of the adoption of the Constitution of Iowa courts of equity declined to entertain suits to restrain and abate public nuisances in cases where rights of property were not involved. No case has been cited where, under the general jurisdiction of a court of equity, an injunction has been granted in behalf of the public to restrain a person from selling intoxicating liquors in violation of statute, or from doing similar acts which have been prohibited on general considerations of public policy. So far as appears, courts acting under their general equity powers have refused to entertain suits brought for this purpose. State v. Uhrig and State v. Crawford, supra. The Massachusetts Statute of 1887, chap. 380, was not passed for the abatement of a nuisance by destroying or changing the character or condition of tangible property, or by removing obstructions to the exercise of a public right. Its purpose is, I think, to prevent the illegal sale of intoxicating liquors by punishing by fine or imprisonment, or by both, without limit, in the discretion of the court, any person who sells or keeps such liquors for sale after he has been enjoined by the court. The prevention of crime by the punishment of persons found guilty of an offense against a general law is the end aimed at. The keeping or selling of intoxicating liquors without a license was a wellknown offense when our Constitution was adopted, and the procedure for punishing it, or for forfeiting the liquors, was also well known. Articles 12 and 15 were inserted in the Declaration of Rights as a protection to every individual in his life, liberty, and property. If a statute had given jurisdiction in equity to hear, without a jury, an information like this, and had authorized the court, on finding the respondent guilty, to punish him in its discretion by fine or imprisonment or both, in what substantial respect would such a statute differ from this? The Legislature cannot do indirectly what it cannot do directly. If the Legislature by statute can authorize a court to enjoin any person from illegally keeping or sel In State v. Uhrig, 14 Mo. App. 413, this jurisdiction was examined, and the court says that it had been exercised only in three classes of cases: first "to restrain purprestures of pub-ling intoxicating liquors in any specified place lic highways or navigations;" second, "to restrain threatened nuisances dangerous to the health of the whole community;" third "to restrain ultra vires acts of corporations injurious to public right;" and that the exercise of equi within the Commonwealth, why cannot it authorize a court to enjoin any person from illegally keeping or selling intoxicating liquors any where within the Commonwealth; and if this can be done, why can it not authorize a court to enjoin any person from doing any illegal or criminal act anywhere within the Commonwealth, and to try without a jury any person so enjoined, on a charge of having violated the injunction, and to punish him by fine and imprisonment without limit, if the court find him guilty? contract it is sufficient, whatever may be the form of the contract, that both parties understand and intend that one party shall not be bound to deliver the merchandise and the other to receive it and pay the price, but that a settlement shall be made by the payment of the difference between the contract price and the market price of the merchandise at that time. Except for constitutional limitations the Legislature could deal with all crimes by way of 2. A contract that the defendant should injunctions in equity. Indeed, if this jurisdic- There is nothing novel about the present suit except the procedure. Statutes against illegally selling or keeping for sale intoxicating liquors from the earliest times have been enforced by criminal complaints or indictments or by penal actions. Such statutes were never enforced in equity anywhere when the Constitution was adopted. I think that the statute under which the present proceedings were brought is inconsistent with article 12 of the Declaration of Rights. Justices Devens and William Allen concur in this dissent. William P. HARVEY et al. v. Z. Taylor MERRILL et al. (....Mass.......) 1. To make a contract for the purchase and sale of merchandise a wagering NOTE.-Wagers, and wagering contracts. By the common law of England, wagers respecting indifferent matters were lawful; but the common law on this subject has never been supposed to be in force in certain States. Love v. Harvey, 114 Mass. 80. See Ball v. Gilbert, 12 Met. 399; Lewis v. Littlefield, 15 Me. 233; Perkins v. Eaton, 3 N. H. 152; Hoit v. Hodge, 6 N. H. 104; Collamer v. Day, 2 Vt. give orders from time to time to the plaintiff for the purchase and sale, on account of the defendant, of equal amounts of pork to be delivered in the future; that the plaintiff should, in his own name, make these purchases and sales on the board of trade, and should, at or before the time of delivery, procure these contracts to be set off against each other according to the usages of that board; that the defendant should not be required to receive any pork and pay for it or to deliver any pork and receive the pay for it, but should only be required to pay to the plaintiff or entitled to receive from him the differences between the amounts of money which the pork was bought for and was sold for, and that the defendant should furnish a certain margin and should pay the plaintiff his commissions, is a wagering cor tract. Brokers who knowingly make con tracts that are void and illegal as against public policy, and advance money on account of them at the request of their principal, cannot recover it or their commissions. 4. Contracts which are void at common law because they are against public policy, like contracts which are prohibited by statute, are illegal as well as void. (September 5, 1889.) CONTRACT to recover commissions alleged to have been earned by plaintiffs as brokers. for defendants, and amounts alleged to have been paid by plaintiffs as losses on orders for purchases and sales alleged to have been made on account of defendants. At the trial in the Supreme Judicial Court before Holmes, J., the verdict was for the plaintiffs for $23,042.84, and the defendants excepted. Exceptions sustained. Other facts are stated in the opinion. Messrs. Robert M. Morse, Jr., and William S. Knox, for defendants: It has been repeatedly held in this State that. all wagers are unlawful and void at common law, and that the court will not lend its assistance to either party to enforce them. Amory v. Gilman, 2 Mass. 1; Ball v. Gilbert, 12 Met. 397; McKee v. Manice, 11 Cush. 357; Sampson v. Shaw, 101 Mass. 145; Love v. Harvey, 114 Mass. 80; Fisher v. Hildreth, 117 Mass. 558. If, under guise of a contract to deliver goods. at a future day, the real intent is to speculate in the rise or fall of prices, and the goods are not to be delivered, but one party is to pay to the 144; West v. Holmes, 26 Vt. 530; Stoddard v. Martin, 1 R. I. 1, 2; Wheeler v. Spencer, 15 Conn. 28, 30; Edgell v. M'Laughlin, 6 Whart. 176; Rice v. Gist, 1 Strobh. L. 82; Bigelow v. Benedict, 70 N. Y. 202; Harris v. Tumbridge, 83 N. Y. 92; 3 Kent, Com. 277, 278; Metcalf, Cont. Heard's ed. 277. The courts in New Jersey, Delaware, and Illinois. hold that wagers on indifferent questions are not prohibited in those States. Trenton Mut. L. & F. other the difference between the contract price | parties to this action was made, and where the and the market price of the goods at the date transactions were carried on, it has been held fixed for executing the contract, the whole in several cases like the present that the brokers transaction is nothing more than a wager, and cannot recover. is null and void. Irwin v. Williar, 110 U. S. 499 (28 L. ed. 225); Ex parte Young, 6 Biss. 53; Pickering v. Cease, 79 Ill. 328; Lyon v. Culbertson, 83 Ill. 33; Cassard v. Hinman, 1 Bosw. 207, 6 Bosw. 8; Brua's App. 55 Pa. 294; Waterman v. Buck land, 1 Mo. App. 45; Rudolf v. Winters, 7 Neb. 125; Suartz's App. 3 Brewst. 131; Gregory v. Wendell, 39 Mich. 337, 40 Mich. 432; Yerkes v. Salomon, 11 Hun, 471; Cockrell v. Thompson, 85 Mo. 510; Melchert v. Am. Union Tel. Co. 11 Fed. Rep. 193. Grizewood v. Blane, 11 C. B. 538. Beveridge v. Hewitt, 8 Ill. App. 467; McCormick v. Nichols, 19 Ill. App. 334. Where the bankrupt had been buying and selling wheat through brokers, and the intention of the parties was that the transactions should be settled by the payment of differences, the broker should not recover for the amounts paid by them. Re Green, 7 Biss. 338; Steers v. Lashley, 6 T. R. 61; Rosewarne v. Billings, 15 C. B. N. S. 316. Under our legislation there can be no such This is the law of England since the Statute thing as a valid wagering contract in this State, of 8 and 9 Vict. chap. 109, § 18. and he who advances money or other property to either of the contracting parties, to be used for such purpose, is equally guilty with the parties to the wager, and no action will lie against the borrower to recover it back. If the plaintiffs, members of the board of trade, did not substitute for the original contracts made by them in behalf of defendants other equivalent contracts, they could not recover of defendants for moneys paid by them in executing their orders. Higgins v. McCrea, 116 U. S. 671 (29 L. ed. 764). In Durant v. Burt, 98 Mass. 167, there was no pretense that the broker had entered into any arrangement with his principal to do any illegal acts. See Jones v. Ames, 135 Mass. 431. Cothran v. Ellis, 14 West. Rep. 574, 125 Ill. 496. When the broker is privy to the unlawful design of the parties, and brings them together for the very purpose of entering into an illegal agreement, he is particeps criminis, and cannot recover for services rendered or losses incurred by himself on behalf of either in forwarding the transaction. Irwin v. Williar, 110 U. S. 499 (28 L. ed. In Illinois, where the contract between the 225); Thacker v. Hardy, L. R. 4 Q. B. Div. 685. Ins. Co. v. Johnson, 24 N. J. L. 576; Dewees v. Miller, 5 Harr. (Del.) 347; Morgan v. Pettit, 4 Ill. 529. In Texas and California all wagers are recoverable except such as are prohibited by statute, or are against public policy, or tend to affect the interest, character, or feelings of third parties. A wager on a horse-race is recoverable in those States. Johnson v. Fall, 6 Cal. 359; Kirkland v. Randon, 8 Tex. 10; Bass v. Peevey, 22 Tex. 295. See Misner v. Knapp, 13 Or. 135. Anything which induces men to risk their money or property, without any other hope of return than to get for nothing any given amount from another, is gambling. Waugh v. Beck, 5 Cent. Rep. 539, 114 Pa. 422. That wagering contracts are illegal and void, see Preston v. Cincinnati, C. & H. V. R. Co. 1 L. R. A. 140 note, 36 Fed. Rep. 54; Sprague v. Warren (Neb.) 3 L. R. A. 679, note. Contracts for future delivery; rule in various States. Arkansas. The Act of March 30, 1883, to prohibit dealing in futures, is not in restraint of trade. It does not prevent contracts for future delivery when entered into in good faith and with an actual intention of fulfillment, but is intended to suppress mere speculations upon chances, where the grain, cotton, or stocks dealt in exist only in imagination, and where no delivery is contemplated, but the parties expect to settle upon the difference in the market. Fortenbury v. State, 47 Ark. 188. The written contracts for future purchase and delivery are not conclusive upon the question of good faith. The real question always is, Did the parties intend an actual, bona fide sale, or a wager? Ibid. One who acts as a broker in dealing in futures is particeps criminis and punishable as principal. Ibid. An indictment for dealing in futures, in the language of the statute, is sufficient. Ibid. Georgia. Contracts for the purchase and sale of cotton futures are gaming contracts, and immoral, illegal, and contrary to public policy; and all evidences of debt executed on such a consideration are void in the hands of any person, even though it be a bona fide purchaser before due and without notice. Augusta Nat. Bank v. Cunningham, 75 Ga. 366. Iowa. Contracts for the future delivery of grain, where a delivery in fact is contemplated, are legitimate, even though the parties may at the same time contemplate the possibility of a settlement by a payment of the differences between the contract price and the market price without the delivery of the grain. Tomblin v. Callen, 69 Iowa, 229. Maryland. A contract to purchase shares of stock, without the intention to deliver, is a gambling contract; and, the contract being for the purchase of stocks, bonds, and grain in other States, deliveries to be made in Pennsylvania, the law of Pennsylvania would govern an action by the broker for money advanced. Stewart v. Schall, 3 Cent. Rep. 509, 65 Md. 289. Where a contract between principals is a mere wagering one, the broker cannot recover for services, money advanced, interest on sales, the purchase of stock, etc. The fact that the broker acted only in negotiating the contract, and is not suing to enforce the original contract, but only for services, etc., makes no difference. Ibid. Mississippi. A contract of sale for the future delivery of cotton is binding, unless it be shown that it was the intention of both parties thereto that there should be no actual delivery, but only a settlement by the payment of the difference between the contract |