Opinion of the Court-Sullivan, J., Dissenting.

It appears, therefore, that the saloon involved in this action has a lawful right to exist so long as it is run properly within the terms of the law, but that all acts and things done or permitted outside of the regular and proper operation of the saloon and the natural results therefrom, that cause a public nuisance specially affecting the plaintiff, may and should be abated.

The judgment of the district court is reversed, and the case is remanded with directions to the trial court that such court enter a judgment authorizing and permitting the defendant to conduct the saloon referred to in the pleadings and to sell intoxicating liquor therein in the manner allowed by his license and the law applicable thereto. But that he be enjoined from operating said saloon in any manner other than that authorized by law and the license granted him by Power county; from running said saloon in a disorderly manner; from urging, inducing or compelling persons purchasing liquor from him to convey the liquor outside the building into American Falls, or to drink the same upon the highways, byways or in the streets, alleys or public or private buildings of said town; from allowing women or minors in said saloon; from selling liquor to intoxicated persons or minors; from allowing children to resort to said saloon for any purpose; and that in case he does not comply strictly with the foregoing terms of said injunction while engaged in so conducting said saloon, that he shall not operate or maintain said saloon at all.

Each party to pay one-half the costs on appeal.

SULLIVAN, J., Dissenting in Part and Concurring in Part. (1) I am unable to concur in the conclusion reached by Judge Davis, to the effect that the village is a proper party plaintiff in this action. Under the law the village is not authorized to maintain an action to abate a public nuisance, such a one as is alleged in the complaint, since it clearly appears that the nuisance, if one exists, affects all of Power county and several other counties in southeastern Idaho, and is not located within the corporate limits of the Village of

Opinion of the Court-Sullivan, J., Dissenting.

American Falls. Under the provisions of sec. 3666, Rev. Codes, a public nuisance may only be abated by "public body or officer authorized thereto by law." We have no statute whatever authorizing a village to bring an action for the abatement of a nuisance such as the one alleged in this case, outside of its corporate limits. Under the 4th section of the local option act (Sess. Laws 1911, p. 30), the prosecuting attorney of any county is authorized to bring an action in the name of the state to abate and perpetually enjoin the common nuisance of selling liquor in a prohibition district. Since the trial court found that said Power county was a prohibition district, it is clear under the law that the village had no right to maintain the action, as it should be brought by the prosecuting attorney in the name of the state. After the trial court had concluded that said Power county was "dry," it was error for it not to dismiss the case and permit the prosecuting attorney of said county to institute the action authorized by said section 4 of the local option act.

(2) I cannot concur with Judge Davis in holding that said Power county, having been created out of parts of "dry" counties and a part of a "wet" county, that the territory taken from the said "dry" counties remains "dry" and the territory taken from the "wet" county remains "wet." Under the provisions of our local option statute, no county can become "dry" except by a majority vote of all the people of such county. That law does not provide for a county part "wet" and part "dry," under any conditions or circum

stances.

(3) I concur in the conclusion reached by Judge Davis that the judgment of the trial court must be reversed and that a judgment should be entered in favor of the defendant permitting him to conduct his saloon under the laws of the state. Of course, if he is conducting his business in a way and manner not authorized by law and is creating a public nuisance, he may be enjoined from those specific acts which he is not authorized to do under the intoxicating liquor and other laws of this state, by the state or persons authorized by law to bring an action for that purpose.

Points Decided.

AILSHIE, C. J., Concurring in Part and Dissenting in Part. I agree with Judge Davis that the city of American Falls can maintain this action, and I agree with Justice Sullivan that when a new county is created by act of the legislature, it becomes a "wet" county or a "dry" county in its entirety and not in spots. The legislature has a right to say whether the new county will be wet or dry until an election takes place under the local option law, but if the legislature fails to provide which it will be, then, under the general law, it would be subject to the license system.

I dissent from a reversal of the judgment. The record brought before us shows that the appellant was maintaining a nuisance, and the trial court has the right and power to abate a nuisance. A lawful business may degenerate into a nuisance or be so conducted as to become a nuisance, and the same may be true of a business conducted on mere sufferance of the state.

(September 19, 1914.)

In re DRAINAGE DISTRICT No. 1 of CANYON COUNTY.

[143 Pac. 299.]

CONSTITUTIONAL LAW-JOURNALS OF THE HOUSE-EVIDENCE-PASSAGE OF BILLS-WHAT JOURNAL ENTRIES MUST AFFIRMATIVELY SHOWPRESUMPTION.

1.

Under the provisions of sec. 15, art. 3, of the constitution, it is provided that no bill shall become a law unless the same shall have been read on three several days in each House previous to its final passage; provided, however, in case of urgency two thirds of the House where such bill may be pending may, upon a vote of the yeas and nays, dispense with that provision.

2.

Under the provisions of sec. 13, art. 3, each House is required to keep a journal of its proceedings, and the yeas and nays of the members of each House on any question may be, at the request of three members, entered on the journal.

3. The journal entries made by either House may be resorted to as evidence to prove either the regularity or the irregularity of the passage of a law.

Argument for Appellant.

4. It will not be presumed in any case from the mere silence of the journals that either House has exceeded its authority or disregarded a constitutional requirement in the passage of legislative acts, unless where the constitution has expressly required the journals to show the actions taken, as, for instance, where it requires the yeas and nays to be entered.

5. Unless the journal shows affirmatively that the legislature has failed to comply with each step required to be taken in the passage of an act under the provisions of the constitution, the presumption is that the legislature did comply with all of such provisions.

6. The case of Cohn v. Kingsley, 5 Ida. 416, 49 Pac. 985, 38 L. R. A. 74, modified.

APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge.

Action to determine the validity of what is known as the "Drainage Law." Judgment reversed.

H. S. Kessler, for Appellant.

The present members of this bench have not hesitated to express disapproval of the majority opinion in the CohnKingsley case. (Swain v. Fritchman, 21 Ida. 783, 125 Pac.

319.)

The omissions in the journal that have been held fatal to any bill have been omissions of facts which the constitution expressly requires should be entered in the journal. The true rule and the one now almost universally accepted by those authorities which recognize the journal as evidence was stated by Judge Cooley in Cooley's Const. Limitations, 7th ed., p. 193.

"Unless expressly so stated the journal is not required to show that a bill was read at the times and in the manner prescribed by the constitution." (Mass. Mut. Life Ins. Co. v. Colorado Loan & Trust Co., 20 Colo. 1, 36 Pac. 793; Weyand v. Stover, 35 Kan. 545, 11 Pac. 355; In re Ellis, 55 Minn. 401, 43 Am. St. 514, 56 N. W. 1056, 23 L. R. A. 287; New Hanover County v. De Rossett, 129 N. C. 275, 40 S. E. 43; Commissioners of Stanley Co. v. Snuggs, 121 N. C. 394, 28 S. E. 539, 39 L. R. A. 439; Mumford v. Sewall, 11 Or. 67, 50 Am. Rep. 462, 4 Pac. 585; Illinois v. Illinois Cent. Ry. Co., 33 Fed.

Argument for Respondents.

730, affirmed in 146 U. S. 387, 13 Sup. Ct. 110, 36 L. ed. 1018; Hollingsworth v. Thompson, 45 La. Ann. 222, 40 Am. St. 220, 12 So. 1; Rash v. Allen, 1 Boyce (Del.), 444, 76 Atl. 370; Ridgely v. Mayor, 119 Md. 567, 87 Atl. 909; Webster v. City of Hastings, 59 Neb. 563, 81 N. W. 510; People v. Leddy, 53 Colo. 109, 123 Pac. 824; State v. Erickson, 39 Mont. 280, 102 Pac. 336; notes in 40 L. R. A., N. S., 1; 20 Am. & Eng. Ann. Cas. 350; 36 Cyc. 950.)

John C. Rice, for Respondents.

It is conceded that the district court correctly followed the law as laid down by this court in the case of Cohn v. Kingsley, 5 Ida. 416, 49 Pac. 985, 38 L. R. A. 74, but this court is now asked to overrule that case. In cases of this kind it is uniformly held in this state that journals of the two Houses of the legislature are not only proper, but are conclusive evidence of the facts therein shown. (Burkhart v. Reed, 2 Ida. 503, 22 Pac. 1; Clough v. Curtis, 2 Ida. 523, 22 Pac. 8; Blaine County v. Heard, 5 Ida. 6, 45 Pac. 890; Brown v. Collister, 5 Ida. 589, 51 Pac. 417.)

This principle is quite generally adhered to by the courts of the different states of the Union. (Union Bank of Richmond v. Commissioners of Oxford, 119 N. C. 214, 25 S. E. 966, 34 L. R. A. 487.)

"A cardinal rule in dealing with written instruments is that they are to receive an unvarying interpretation, and that their practical construction is to be uniform. A constitution is not to be made to mean one thing at one time, and another at some subsequent time when the circumstances may have so changed as perhaps to make a different rule in the case seem desirable." (Cooley's Const. Lim., 6th ed., p. 68; McCulley v. State, 102 Tenn. 509, 53 S. W. 134, 46 L. R. A. 567; Baker v. Lorillard, 4 N. Y. 261.) Since the decision was announced in the case of Cohn v. Kingsley, both Houses of the legislature of this state have accepted the construction of the constitution there laid down as binding, and have re-enacted practically all statutes passed prior to that decision in order