Respass v. Comth. ex rel. Atty. Gen'l

131 Ky. 807 | Ky. Ct. App. | 1909

Opinion of the Court by

Judge Hobson

Affirming.

These three oases present identically the same questions and will he determined together. They are each a proceeding instituted by the Attorney General by a petition in equity in the Kenton circuit court. In one of the cases these facts are set out; The defendants own and are in possession of a certain house and lot in Covington, Ky., in which they operate and conduct a gambling house or poolroom-, where money or other things of value are bet and won or lost on horse races, and where tickets, pools, o-r chances on horse races run or to be run at the various race courses in the State of Kentucky and in the United States and Canada are bought and sold; the owners ■of the property renting it to their eodefendants for the purpose named and suffering them to use it for that purpose. The premises are located immediately adjoining the entrance to the Covington & Cincinnati Suspension Bridge. All street cars entering the city of Covington pass within 100 feet of the place, many thousand people are required to pass by the premises on their way to and from the city of C'incinanti, and strangers coming to the city are required to pass by the place and to come in contact with the frequenters of the gambling house or poolroom. The unlawful and criminal business conducted by the defendants attract to the place and its vicinity, from Cincinnati and other places, a large number of criminals, gamblers, low ánd dissolute characters, sporting men, dissolute women, and disorderly and idle persons without lawful means of support. The presence of these persons in the streets of Covington has a demoralizing effect on the good order and moral welfare of the community, constituting a public nuisance, and an ever-present menace to the morality and well-being of the community. The-nuisance has continued in the place for many years despite the processes of the criminal court. From year to year, for many years, the person or persons operating the gambling house have been convicted and fined from time to time in the Kenton circuit court, and thereupon, to obviate the effect of the judgment or judgments, the business of operating the gambling house at that place has been transferred to- the name of some person or persons other than the one so convicted, and so the nuisance has been steadily maintained, despite the processes of the criminal court, and will be maintained in future, to the great and irreparable injury of the people of the city of Covington and the Commonwealth of Kentucky. In the other two cases similar facts are shown. On these facts an injunction was prayed, restraining the defendants from maintaining the nuisance on their premises. The court granted the injunction as prayed, and the defendants appeal.

Two questions are made on the appeal: First, the Attorney General was without authority to institute the proceedings; second, the chancellor was without power to grant the relief given.

1. The office of Attorney General comes to us with the common law. The Attorney General at common law, as the chief law officer of the State, was allowed to institute proceedings of this sort when the interest of the State demanded it. There are numerous cases in England and in this country where the authority of the Attorney General to maintain such an action has been upheld; and it must be presumed that, when the office was created in Kentucky, it was contemplated that the officer should have all the powers then recognized as belonging to it, except so far as these powers were limited by statute. It cannot be presumed that, in creating the State government and in creating the law department, it was contemplated that the head of the law department should not have such authoirty as was exercised by the Attorney General at common law. He and he alone has authority to institute such a proceeding. See Attorney General v. Shrewsbury Bridge Co., L. R. 21 Ch. Div. 752; Attorney General v. Cockermouth Local Board, L. R. 18 Equity, 172; Attorney General v. Berning R. R. Co., 3 McNaghten & G. 453; Georgetown v. Alexandria Canal Co., 12 Pet. 91, 9 L. Ed. 1012; People v. Oakland Water Company, 118 Cal. 234-239, 50 Cal. 305; People v. Vanderbilt, 26 N. Y. 293; Attorney General v. Wood, 108 Mass. 436, 11 Am. Rep. 380, and eases cited. This question was before us in Commonwealth v. McG-overn, 116 Ky. 212, 75 S. W. 261, 66 L. R. A. 280, 25 Ky. Law Rep. 411, and, although it is not referred to in the opinion, it is necessarily concluded by the judgment, which sustained the proceeding and directed a judgment to be entered as prayed by the petition.

2. It is earnestly insisted that the chancellor cannot exercise the powers of a grand or petit jury, that he has no jurisdiction to enjoin a crime, and that the defendants cannot be deprived of their constitutional right to a trial by jury. The court of chancery has from its beginning had jurisdiction to regulate the use of property. The law requires each man to so use his property as not to injure the lawful rights of others, and when the owner of property unlawfully infringes upon the rights of others the court of chancery, to prevent irreparable injury, may grant relief by way of injunction. The power of the court of chancery.in this class of cases is not affected by the fact that the act of the defendant which is complained of may be also a crime. The chancellor will not enjoin the mere commission of a crime; but, when property is used in such! a way as to become a nuisance, the continuance of this nuisance, may be enjoined. There is a manifest distinction between enjoining an individual from committing a crime and enjoining the owner of property or its possessor from allowing his property to injure others. In the latter-case the chancellor only regulates the use which may be made of the property, restraining the defendants from so using their property as to make it a nuisance to others. If the use of the property is such as to require that it should be restrained by injunction, the chancellor’’s jurisdiction is not affected by the fact that this use may be also a criminal offense. The remedy in equity is purely preventive. The chancellor does not punish the defendant for what he has done. This is left to the criminal courts. The only thing that he determines is that the defendants must not in future so use their property as to be a nuisance. The judgment does not convict them of any offense.. It merely restrains them in future from so using their property as to make it a nuisance. The judgment deals merely with the use of the property in question.

The chancellor may not enjoin the defendants from operating a poolroom anywhere; but he may enjoin them from so using the property referred to in the judgment as to make that property a public nuisance. The court of chancery will not restrain personal conduct, but it will restrain the unlawful use of property. In Commonwealth v. McGovern, supra, we showed that the jurisdiction of the courts of equity in regard to public nuisances may be traced back to the reign of Queen Elizabeth, and may be exercised where the nuisance affects the health, morality, or safety of the community; the ground of jurisdiction being the ability of the chancellor to give a more complete and perfect remedy than is attainable at law by arresting the nuisance that is in progress and protecting the public against it by perpetual injunction. If the defendants were sending into the air from their property poisonous vapors that destroyed the health of the community, for the protection of life the chancellor might enjoin them from so using their property; or if they had upon their premises in the city of Covington a manufactory of some deadly explosive, which constantly endangered the safety of the city, the chancellor might, enjoin this use of their property for the protection of the public, without waiting for the tardier processes of law, which might not be effective until great loss of life had ensued. It was in effect conceded in the argument that in such cases as these, for the protection of health or personal safety, the chancellor might intervene by injunction.

But it was earnestly insisted that the rule should not be applied to nuisances which affect only the morals of the community. We cannot see the force of the distinction. The State is interested in the character of its people, no less than in their health or personal safety. The character of a state depends upon the character of the individuals constituting it. If the people become depraved, the state cannot long exist. It may have wealth, it may have all that goes to make a great state, and yet, if its men are without character, it is a crumbling ruin. The State is as much interested in restraining those things which destroy the character of its people as in those things which destroy their health or personal security. A house such as is described here is not only a rendezvous for the vicious, but a training school to make others like them. That such a house is a public nuisance has been often declared. See Bollinger v. Commonwealth, 98 Ky. 576, 35 S. W. 553, 17 Ky. Law Rep. 1122; Cheek v. Commonwealth, 79 Ky. 359, 2 Ky. Law Rep. 339; Commonwealth v. Enright, 98 Ky. 635, 33 S. W. 1111; Commonwealth v. Respass, 50 S. W. 549, 21 Ky. Law Rep. 140; Cawein v. Commonwealth, 61 S. W. 275, 22 Ky. Law Rep. 1734. [To say that a court of equity may not enjoin a nuisance of this sort, wkemthe criminal laws have, proven^inadequate, is to say that the Commonwealth is unable to protect its citizensj If it may protect its citizens by injunction from such a use of property as would breed a pestilence among the people, upon wbat principle can it be maintained that it may not by injunction prevent that use of property which, while it does not destroy the body, destroys the character, and leaves only the image of a man, unfitting him for the duties' of citizenship? We held in Commonwealth v. McGovern that a court of equity may enjoin the owner of property from allowing it to be used for a prize fight, which congregated upon it a large body of that class of persons that are described here. The same conclusion in effect has recently been reached in State v. Canty, 207 Mo. 439, 105 S. W. 1078, 15 L. R. A. (N. S.) 747, by the Supreme Court of Missouri, where a bill like that before us was filed by the Attorney General to enjoin the defendant from continuing to manage and conduct a public exhibition known as “bull-fighting” and “bull-baiting.” The court went very fully into the authorities, and granted the injunction. In Columbian Athletic Club v. State, 143 Ind. 98, 40 N. E. 914, 28 L. R. A. 727, 52 Am. St. Rep. 407, the court granted an injunction restraining a prize fight; the decision being substantially the same as in Commonwealth v. McGovern. In State v. Olympic Club, 47 La. Ann. 1095, 17 South. 599, the same conclusion was reached, and the use of property for a prize fight was enjoined. A like conclusion was reached in State v. Saunders, 66 N. H. 39, 25 Atl. 588, 18 L. R. A. 646, Chicago Fairgrounds Association v. People, 60 Ill. App. 488, and Reaves v. Oklahoma, 13 Okl. 396, 74 Pac. 951. See, also, Attorney General v. Jamaica Pond Aqueduct, 133 Mass. 361; State v. Crawford, 28 Kan. 726, 42 Am. Rep. 182; Re Debs, 158 U. S. 564, 15 Sup. Ct. 900, 39 L. Ed. 1092; Atty. Gen. v. Heatley, 1 Ch. 560 (Eng.); People v. Truckee Lumber Co., 116 Cal. 397, 48 Pac. 374, 39 L. R. A. 581, 58 Am. St. Rep. 183; note to Akers v. Marsh. 9 Am. & Eng. Dec. in Equity, 453; Mercer County v. City of Harrodsburg, 66 S. W. 10, 23 Ky. Law Rep. 1744, 56 L. R. A. 583; Attorney General v. Hunter, 16 N. C. 12.

No constitutional right of the defendants is violated by the proceeding. They are proceeded against in precisely the same way as in all other cases .in equity. They are simply prevented from so using their property as to make it a nuisance in future. The judgment has reference solely to what they may do in the future. It has no reference to what they have done in the past. Louisville Gas Co. et. al. v. Kentucky Heating Co., 111 S. W. 374, 33 Ky. Law Rep. 912.

Judgment affirmed.