116 Ky. 212 | Ky. Ct. App. | 1903
Opinion or the court by
Reversing.
This equitable action was instituted in the Jefferson circuit court, common pleas division, by the appellant, the Commonwealth of Kentucky, on relation of the Attorney ■General, against the appellees, Terry McGovern and others, to prevent the holding of a prize fight advertised to take place on the 22d day of September, 1902, in the Auditorium, a large theatre situated in the city of Lousiv-ille. Terry McGovern and Young Corbett were to be the combatants, .and their managers and the owner of the Auditorium were made parties to the action.
It is averred in the petition, in substance, that tbe prizefight was to be given under the auspices of the Southern Athletic Culb of which the appellee Robert Gray is the sole stockholder and manager; that the Auditorium has a seating capacity of 4,000, and that the prices of tickets for admission into that building to witness the prize-fight vary from $5 to $20 a seat; that the fight was to take place according to the Marquis of Queensbury mies, and the fighters were to receive $10,000 between them. It is further averred that the prize-fight, if allowed to take place, would bring to the city of Louisville a great number of sporting men, disorderly persons, and criminals, and that the persons so drawn to the city would constitute a lawless, turbulent and dangerous assembly of many thousands of people, and would produce breaches of the peace and other violations of the law, which would have a demoralizing effect upon the good order and well-being of the community, and
Thereafter, upon the pleadings and proof, in the form of affidavits and depositions, the judge of the court in which the action was then pending issued a temporary injunction, as prayed, and upon the day following its issual a motion was made by the appellees before one of the judges of this couxt to dissolve the same, and that judge and five of his associates, members' of this court whom he called in consultation,, rendered the following opinion:
“This motion was made before the Chief Justice, who by consent of the applicants transferred the hearing of the motion to Judge White, who invited the whole court, except Judge Paynter (absent) to hear the application with him. The majority of the court who heard the application to dissolve the injunction of Judge Field are of the opinion that the contest which has been enjoined „is a prize-fight, and that it is not material whether the victor in the contest is to> receive more of the reward offered than the vanquished. The court is divided equally upon the question of whether the chancellor has preventive power under the Kentucky Statutes to restrain the holding of such contest; Chief Justice Guffy and Judges White and Burnam holding-in the negative, and Judges DuRelle, Hobson and O’Rear holding the affirmative. The motion to dissolve is therefore denied.”
No one can doubt that the contest between appellees McGovern and Corbett, if it had taken place as advertised, would have been a fight. Indeed, it is clear from the evidence furnished by the record that they are prize-fighters and that the fight was to be one of unusual endurance and extreme brutality, a very feast of blood, to be enjoyed to the full by the thousands who were expected to wetness it. From the mass of testimony in regard to the bloody character of such contests found in the record we have but to mention the following:
Lambertson, the sporting editor of a Cincinnati newspaper, in describing a fight of this kind which he witnessed at the Auditorium, said it appeared to him the men were “hitting each other just as hard as they could.”
Harris, the manager of McGovern, in speaking of his manner of fighting, says: “There is ‘no make-believe” about it; that, when he goes into a contest of this kind, he ‘goes in to win;’ that he strikes ‘just as hard as he can/ and that this' is the way with every such contest, unless it is a ‘fake.’ ”
Gearhart, a professor of boxing in the city of Louisville, testified that he had seen a great many contests under the Marquis of Queensbury rules, and that they are brutal; and, upon being asked if it was customary for the contestants to try to knock each other out in such contests, he said: “The contestants do generally, if, they are fighting under the Marquis of Queensbury rules, endeavor to knock each
A physician, Dr. Gossett, testified to having professionally attended a man named Handler, after his fight with Bill Harrahan at the Auditorium ■ in November, 1901, and of his condition said: “His upper, lip was cut in two places— one side clear through to the teeth, completely severed, and the other side was nearly through. His upper lip was swollen about three or four timas its normal thickness, and one eye was completely closed and swollen very much. Both lids were swollen about an inch in thickness, due to the extravasation of blood. He could not open one of his eyes. The other was very nearly as bad. He had a cut over one eye, about an inch and .a half in length, in which we had to take three or four .sutures. We took six or eight sutures in his lip. His face was very much bruised; looked like a piece of raw beef. Blood was oozing from different parts of it. . . . When I first saw him, the feeling I had was of sickening” disgust.”
Another witness, Mr. Lewis Humphrey, testified that he saw the fight between ,Ryan and West for the championship of the middle-weights of the United States, which occurred in the Auditorium in the city of Louisville on March 4, 1901. They fought with five-ounce gloves and under the Marquis of Queenshury rules. The fight was under the auspices of the Southern Athletic Club, of which the appellee
The combats described by the witnesses' were conducted according to the Marquis of Queensbury rules. It is admitted that the prize-fight, to prevent which the injunction in this case was sought, was to be fought under the same rules. A copy of these rules is made a part of the record in this case, and we here quote from that copy the following:
“Sixth. When the contestant has fallen to the ring floor through the medium of a blow or weakness, he must arise, unassisted, within a period of ten seconds. His opponent must meanwhile retire to his corner, and not resume fighting until the fallen man has regained his feet. Should the latter fail to recommence the battle within the specified ten seconds, the referee shall award the victory to the other contestant. When a contestant is on the floor, the count shall be made by the official timer of the club, either from an electric, ¡clock or his watch. He shall call off each second by striking the gong.
“Seventh. A contestant, on one knee, or hanging on the ropes in a helpless condition with his toes off the floor, shall be considered down, and, if struck while in that position, must be awarded the decision by the referee.”
The'brutal frankness of the language contained in these rul.es manifests, without the aid of extrinsic evidence, the character of the fighting provided for therein, and the cruelty of the punishment that may be inflicted thereunder.
The fact that the reward in this case was to be equally divided between the combatants can not legalise the trans
Nor will the use of gloves by the combatants m a prizefight make such a combat any less an offense in the eyes of the law. The Supreme Court of Louisiana in the case of State v. Olympic Club, 47 La. Ann., 1095, 17 South., 599, said of such a contest as the one under ¡consideration: “The glove contests permitted in defendant’s club are advertised extensively and are generally known as ‘prize-fights.’ The fighters are under contract with each other, with the, club, and under obligations to spectators and betters, to fight to a finish; that is, usually until there is what is called a ‘knock-out.’ There can be no reasonable objection to boxing as generally understood. It is a manly, healthful, and vigorous training, and encouraged in some of our most respectable institutions; and interference with it by • legislative power would be a great stretch of authority, bordering upon an infringement of personal liberty. And even boxing without gloves for a display of skill and for pastime, when there is no breach of the peace, and no intentional injury to
It now remains to be seen whether a court of equity has jurisdiction to prevent by injunction a prize-fight. Kentucky Statutes (1899), sections 1281-1288, inclusive, prohibit prize-fighting, make it a felony to engage in prize-fighting, a misdemeanor to aid or abet in bringing on a prize-fight, or to bet on or voluntarily witness such a fight, and also a misdemeanor for any one to permit the use of his land's for a prize-fight.
Section 1289 provides: “It shall -be the duty of all judges of courts, justices of the peace, mayors of cities, trustees of towns, and other conservators of the peace, all sheriffs, constables, marshals, and other public officers, on being informed or having reason of their own knowledge to believe that such a fight is about to take place, or that there .is graining or preparation in any place, within their jurisdiction, for such fight, to suppress and prevent the sanie,’ and -for this purpose they shall arrest the offending parties, or have them arrested, or hold them to security for their good behavior, and also commit them to prison, if they do not give bail for their appearance at the next circuit court to answer the charge; and in order to suppress and prevent the same, they shall exercise all the powers vested in them for the prevention of crimes and misdemeanors;- and any
We are told by Judge Story, in his excellent work on Equity Jurisprudence (volume 2, section 921): “In regard to public nuisances, the jurisdiction of courts of equity seems to be of very ancient date, and has been distinctly traced back to the reign of Queen Elizabeth. This jurisdiction is applicable, not only to public nuisances, strictly so called, but also purprestures upon public rights and property.” Again, in section 924, it is said by the same author: “The ground of this jurisdiction of courts of equity in cases of purprasture, as well as of public nuisances, undoubtedly is their ability to give a more complete and perfect remedy than is, attainable at law, in order to prevent irreparable mischief,' and also to suppress oppressive and vexatious litigation.” Continuing the discussion, the learned writer announces further that: “The courts (of equity) can not only prevent nuisances that .are threatened, and before irreparable mischief ensues, but arrest and abate those in progress, and by perpetual injunction protect the public against them in the future, whereas courts of • law can only reach existing nuisances, leaving future acts to be the .subject of new prosecutions or proceedings. This is a salutary jurisdiction, especially where a nuisance affects the health, morals, or safety of the community. Though not frequently exercised, the power undoubtedly exists in courts of equity thus to protect the public .against injury.”
In Pomeroy’s Equity, 3d vol., section 1349, it is said: “A court of equity has jurisdiction to restrain existing or .threatened nuisances by injunction at the suit of the Attorney General in England, and at the suit of the State or
In 21 Am. & Eng. Ency. of Law, 703, it is likewise said: “A court of equity has discretionary jurisdiction to enjoin the creation or erection of either a public or private nuisance or a purprasture. This jurisdiction is founded upon the ability of equity to prevent irreparable mischief and vexatious litigation and to furnish a more complete remedy than can be had at law. The remedy by, indictment for a public nuisance is not an adequate remedy at law, precluding the remedy by injunction; nor is tba right of a private person to call upon the public authority to abate the public nuisance, after its erection, such a remedy.”
In Attorney General v. Jamaica Pond Aqueduct Corp., 133 Mass., 361, an injunction Was granted, to restrain the lowering of the waters of a pond, on the ground that it would be injurious to the public health. In concluding its opinion, the court said: “Indeed, it may be affirmed that in no well-considered case has the power of a court of equity to interfere by injunction in cases of public nuisances been denied; the. only denial being that of a necessity for exercise of that jurisdiction under the circumstances of the particular case.”
In Mugler v. Kansas, 123 U. S., 672, 8 Sup. Ct., 273, 31 L. Ed., 205, suit was brought by the State to enjoin the operation of a distillery, which was forbidden by its laws, on the ground that it was a public nuisance, injurious to the morals of the community. The court, after referring to the rule herein quoted from Story’s Equity, adopted it without reservation. The same doctrine is adhered to in People v. City of St. Louis, 48 Am. Dec., 339, and Attorney General v. Railroad Cos., 35 Wis., 425.
We find by the foregoing authorities that the jurisdiction
We are not inclined to believe that the language of the act, supra, “shall exercise all the powers vested in them for the prevention of crimes and misdemeanors,” confers upon any of the officers named therein new powers of any kind; but it does require of all ministerial officers of the State peculiar and extraordinary alertness, activity, and zeal in the exercise of all the powers with which they are vested in the matter of preventing and suppressing prizefights, and any willful failure of duty on their part will subject them to a fine of $500 and the forfeiture of office. The same provision of the statute requires that “all judges of courts,” in the performance of the duties enumerated in the statute, “in order to suppress and prevent” prizefights, shall exercise all the powers vested in them for the prevention of crimes and misdemeanors. It will be observed that the language, supra, not only embraces judges of courts of purely criminal jurisdiction, but also includes all judges of courts. Therefore, the command reaches judges of common-law and equity jurisdiction, and no such express command is laid by the Kentucky Statutes upon all judges with reference to any other crime or misdemeanor
The question presented for the consideration of the judge of the Jefferson circuit court, when the injunction was applied for in this case, was whether or not the powers that might be invoked under the criminal jurisdiction of the courts were adequate to the suppression of the prize-fight about to come off, and, if not, what further powers might be exercised by him? As the statute fequired of him the exercise of all the powers of which he was possessed, and the right to employ, the writ of injunction being one of those powers, it was his duty to grant it to the extent of preventing the use of the Auditorium for the holding of the prize-fight, if in the exercise of a sound discretion the facts before him justified such relief, in aid of the jurisdiction of the criminal courts. In granting the injunction to the extent indicated, the chancellor only exercised the jurisdiction that was exercised in draining the pond, and in suppressing the distillery, in the Massachusetts and Kansas, cases, supra.
In none of the cases, supra, was there any question of property or pecuniary right involved; nor need there be any property right involved, so far as the State is concerned, in the maintenance of the puhlic health, morals, or safety.
Is1 the use of land or a building for the maintenance of prize-fighting a public nuisance? In Wood on Nuisances (3d Ed.) section 68, the author says.: “A public exhibition of any kind that tends to the corruption of morals, or to a disturbance of the peace or of the general good order or welfare of society, is a public nuisance. Under this, head are included all puppet shows, legerdemain, and obscene pictures, and all exhibitions, the natural tendency of which is to pander to vicious tastes, and to draw together the vicious and dissolute members of society.” That a prizefight is an exhibition of the character here described, and consequently a public nuisance, there can be no doubt; and, if so, the use of a theater for prize-fighting is such a nuisance. Therefore the Legislatures of many of the States have enacted laws for their suppression, realizing, no doubt, that the remedies afforded by the general laws were not adequate to that end; and the courts have been uniform in upholding the statutes thus enacted. Thus, in Sullivan v. State, 67 Miss., 352, 7 South, 276, the Supreme. Court of Mississippi said: “We think, however, that the evil sought to be protected against by the statute is the debasing practice of fighting in public places, or places to which the public, or some part of it, is admitted as spectators.”
Such a meeting as would have been held in the Audilorium, in Louisville, to witness the prize-fight between
We conclude, therefore, that while a court of equity may not grant an injunction against the principals who were expected to engage-in the fight in question, nor those connected with them as managers, trainers, etc., because the process of the criminal courts and the powers of conservators of the peace in the city of Louisville are, or ought to be, adequate to the prevention of the prize-fight, by the arrest and prosecution of the parties concerned, yet it was proper for the lower court to enjoin the owner, proprietor and managers of the Auditorium' theater from permitting the holding of a prize-fight therein, and from allowing there-, in any future exhibitions of the same character, upon the ground that such a use of the building would constitute a
As already suggested, not the least of the evils connected with the holding of the prize-fight would be the presence of the immense crowds of lawless and turbulent men from all quarters. An injunction against the use of. the building advertised as the place of the. fight would go far toward preventing the assembling of this crowd, and thereby avert incalculable mischief, which could not well be averted by the criminal courts; or their ministerial officers, after the meeting. of the audience at the place of the combat, or in the act of assembling; for, although every person who attends a prize-fight by that act violates the law, it would be impossible for the officers of the law to arrest any considerable number of them under such circumstances.
We do not regard this case as analogous to that of Neaf v. Palmer, 103 Ky., 496, 20 R., 176, 45 S. W., 506. In the latter case the. action was brought by several property owners to enjoin the maintenance of a bawdy house upan the property of another. In passing upon the questions involved, this court said, in part: “It is not alleged that there are offensive sights or sounds about the obnoxious premises, but only that the property is made less valuable in the vicinity, and that the moral atmosphere is tainted and pestilential. The injury is wholly consequential. It seems to us, under these circumstances, criminal courts had
There was nothing in the case, supra, to indicate that the bawdy house complained of could not be suppressed by the ordinary methods appertaining to the criminal court, and, the damages resulting to the plaintiff’s property from the existence of the bawdy house being wholly consequential and speculative, it would, of course, have been improper in that case to employ the writ of injunction in aid of the mere property rights of the individual. Bu-t in the case at bar the complainant is the State — the sovereign — which is seeking by a writ of injunction to prevent a great evil, affecting the people of the city of Louisville,, and the entire State as well, and which threatens irreparable injury to the public morals because of its cruelty, inhumanity, and debasing associations, and danger to the public safety because of its bringing together the lawless and turbulent elements of society from all quarters. Upon such a state of facts, and with the commands of the statute directing him to employ all his powers to avert the threatened evil, it was, in our opinion, no stretch of authority for the chancellor to employ the aid of the writ, of injunction in such an emergency, to the extent, at 'least, of preventing the use of real property for the holding of the prizefight. Nor do we think that the right of the chancellor to so 'employ the writ of injunction in this case is dependent upon the fact that a property right be involved. It may '¡be justified upon the higher ground that the morals and ■safety of the public are involved, and that the public good is of the first consideration.
If the element of continuity were needed in this case to authorize the injunction, it is shown by the record to exist; .for several witnesses testify to having attended contests ¡similar to this in the Auditorium, and the advertisement
Being of the opinion that the chancellor erred in dismissing the petition, and in refusing to perpetuate the injunction, in this case, to the'extent of restraining the owners and managers of the Auditorium from permitting the use of that building for the holding of the prize-ñght between appellees, McGovern and Corbett, the judgment is reversed, and cause remanded, with directions to set aside the order dismissing the petition, and to enter in lieu thereof the necessary decree perpetuating the injunction to the extent herein indicated.
Whole court sitting.