*1 Levenburg 1979] STATE ex rel WAYNE COUNTY PROSECUTING ATTORNEY v LEVENBURG STATE ex rel WAYNE COUNTY PROSECUTING ATTORNEY v
RICHMOND (Calendar 5, 59756, Argued 11, 60478. Docket Nos. October Nos. 12). 3, July rehearing, appeal 1979. On motion for as Decided Levenburg Appeals remanded to the Court for considera- tion of issues raised in that Court but addressed in its opinion; rehearing Richmond, 27, September denied as to 1979. 1147, See 407 Mich 1148. Michigan, Wayne County The State of on the relation of the Prosecuting brought Attorney, an action to abate a nuisance light against Harry Levenburg, under the "red abatement act” Gardens, Inc., Anderson’s bar which owned in Detroit, Porvin, and Albert who was a co-owner with Leven- building burg operated. in which Anderson’s Gardens Court, Jr., J., Wayne Moody, granted Circuit Blair judgment plaintiff that Anderson’s Gardens would be year, closed as a nuisance one but that the bar could reopened upon after four months certain conditions. The Bronson, P.J., Horn, JJ., Appeals, Court of and Bashara and grounds reversed on the there was no evidence that any Anderson’s Gardens was a house of or that premises, sexual acts for hire had occurred on the and that the deciding light trial court erred that the red abatement act applied prostitutes to Anderson’s Gardens used for but in which no acts of sexual 27487). (Docket appeals. intercourse took No. Plaintiff Michigan, Wayne County The State of on the relation of the Prosecuting Attorney, brought an action to abate a nuisance against George the "red abatement act” Richmonc under Richmond, Evelyn the owners the Willis Show Bar r [1, [2] [3, [4] [6] [7] [9, [11] 63 Am Jur 5, 24 Am Jur 73 Am Jur 24 Am Jur 12] 73 Am Jur 24 Am Jur 8] 24 Am Jur 73 Am Jur 63 Am Jur 2d, 2d, 2d, 2d, 2d, Disorderly 2d, Disorderly References Prostitution 2d, Prostitution Disorderly Statutes 2d, 2d, Statutes Disorderly Prostitution § for Points in Headnotes 145. Houses 2. Houses 2.§ Houses § 12.§ 206. Houses 43. §§ § §§ §§ 2. § 37-47. 2. Mich Montante, Wayne Court, J,, Detroit. The James Circuit denied for summary defendants’ motion judgment. J, Bashara, P.J., Appeals, dissenting), Beasley, (Quinn, J,, ground plaintiff reversed on allegation made no *2 that of sexual acts intercourse in Bar occurred Show Willis allegations prostitutes but relied on that used for (Docket 29110). accosting soliciting appeals. and No. Plaintiff opinion by Ryan, In an Justice Justice with Chief Coleman Fitzgerald concurring, and Justices Williams and it held: was soliciting Proof that numerous of accosting and for instances purposes prostitution places of occurred at is sufficient certain finding places to public sustain a such a that nui- constitute re,d act, subject light sance to abatement under the abatement 1. The Court has recently light decided that the red abate- picture apply ment act does not to showing motion theatres films. obscene dictum in that case was that apply prostitution to intended houses of and lewdness synonymous and assignation are both prostitution with controlling in these cases. 2. accosting In order to soliciting determine whether and purposes prostitution prohibited of constitute under conduct act, one must meaning on the focus statutory "assignation”, pn term rather than term "lewd- ness”, "assignation” determine and is synonymous whether "prostitution”. with the term statutory statutory The rules of require given, construction possible, be effect if to every word, "assignation” sentence and section. If the term has a meaning "prostitution”, distinct from the must be term effect given to that Legislature’s order effectuate the intention. "Assignation” 3. is not any statutorily is there defined nor Michigan precedent authoritatively which defines term- Legislature has directed that all words used statutes according shall approved construed to common apd usage of language. "assignation” commonly The term it appointment means an meeting, especially for a for illicit sexual relations. The term as used in the abate- encompasses fqr ment act instances prostitution they making because of an involve appointment purpose prostitution. Limiting this making appointment definition to the of an prostitution apparent legislative is consistent with the intent eliminate property the use prostitution, in connection prohibiting avoids innocent conduct which is of the nature of assignation, and is consistent with the rule of noscitur sociis. Reversed, Kavanagh, Levin, joined by Justice Justice dissented. He wrote: 1. The red abatement act to the is directed abatement of lewdness, assignation, "lewdness, prostitution, and the terms assignation, prostitution” synonymous. are The abatement apply prostitution statute has been held to to houses of and not picture to motion theatres where sexual are not committed portrayed but are on the screen. plaintiff argues prostitution” 2. The that a "house of is not only committed, where sexual acts are but should be house”, "disorderly bawdy- defined be a which includes houses, gaming-houses, common similar which people promiscuously purposes injurious resort convenience, morals, health, safety. prostitution, A house bawdy-house, house, disorderly disorderly is a but not all prostitution. prostitution are houses houses A house of is one prostitute plies Prostitution, her trade. the trade of prostitute, commonly performance refers to the of sexual compensation. Soliciting accosting, acts for *3 concepts. itself are different and distinct order In to constitute prostitution” place a "house of a must be one in which sexual compensation. soliciting acts are committed for Places where accosting and but no sexual acts occur are not houses of prostitution pursuant and cannot be closed to the nuisance statute. abatement plaintiff that, argues despite previous judicial 3. The also act, construction of the nuisance abatement "lewdness” should prostitution not be limited to the of term but comprehend should be construed to the activities of they inextricably because are associated with cognate are activities to which the nuisance properly argument applied. abatement statute should be This misperceives "cognate” cognate the nature of activities. The properly activities which could be embraced would have to be sexual of general some sort. "Lewdness” refers to the class normally of prostitution, activities associated with of houses or may whatever such establishments be term called. The is designate prohibit per- to intended sexual acts which are compensation. prostitu- formed Solicitation for of "lewdness”, tion is not covered under the rubric of because it is most, perform not a At sexual act. solicitation is the offer to a compensation. sexual act for solicit Establishments to or Mich by perform the nuisance acts covered offer to elsewhere pursuant be closed to statute. cannot abatement statute prostitution, applies only to houses The abatement statute lewdness, places assignation acts are com- as where sexual or mitted. opinion separately respond to Levin also wrote to Justice result, reaching overlooks its its the Court
of the Court. result, places decisions, point to a different earlier "assignation”. the word an untenable construction on place open a to the conclusion that of business 1. Court’s patrons, encourage- padlocked public without because initiative, proprietor of the and on their own there ment engage ancillary statutorily activity condemned in activi- beverages, illegal money, sex use of alcoholic or ties of offering agreeing go gambling or elsewhere to —such compatible proscribed activity engage in the —is padlock history disposition under the statute. cases general categories: appear the first where to fall into two engaged person activity solely lawful condemned is possession property, and of the the second where unlawful what, except activity by patrons engaged is activity, generally is the claim a lawful business. Where made knowledge category prove in the first there is no need to property sought participation by the owner of the be seized Where, however, sought padlock legiti- padlocked. it is patrons, the of the of the mate business because activities required proof knowledge degree participa- has and some patrons activity by on his tion owner in condemned place padlock premises. unprecedented It is based ancillary patrons completed activity less offense than padlock act. condemned of the 2. The Court definition term announces untenable "lewdness”, sure, assignation”. "assig- "place of To be terms nation”, meanings. "prostitution” differing have The his- acts, however, tory abatement sustains the red jurisdictions in this and that the consistent construction other designed acts were to abate nuisances at houses occur; ap- such acts have been where sexual acts solely activity. history plied if that sexual Even commercial properly ignored, be read to cannot agreement *4 rather mean the is made thán the where dictionary place meeting to occur. definitions where the is The appoint- support "An conclusion. cited Court do its meeting meeting” place” "time for a is the and ment occur; appointment apparently "an the Court reads place” "appointing" place”, as if it a time and time were "making concluding appointment” an is itself place assignation. agreement appoints Where the another act, assignation; the sexual alone is the agreement assignation. apparent appreciation mere is not an application that its strained in contexts construction invite circle, offering money, full other than sex for the Court turns acknowledges legislative purpose that the was to abate the use prostitution, creatively limits "assignation” agreements involving prostitution to avoid the prohibition of "innocent” conduct is "of the nature of assignation”. "kept 3. Since the Court does not rest decision on the clause prostitutes disorderly persons”, for the use of or other and the judge finding kept trial made no that Anderson’s Gardens was for such use and the record does not show that the owners were through directly employees involved their themselves customers, providing supply the illicit to their there is no need part dissenting opinion. to consider this of the Jr., Moody, participate
Justice Blair did not in the decision of these cases. (1977) 90; App
75 Mich
3. Statutes Construction Words Phrases. Legislature provided has that all words used in statutes shall (MCL according approved usage be construed to common and 8.3a; 2.212[1]). MSA *5 Mich — — Soliciting — — 4. Nuisance Prostitution Abatement Accost- ing — Words Phrases. "assignation” commonly appoint- term as it is used means an relations, meeting, especially ment for a for illicit sexual and as public it used in the nuisance statute acts of includes they making ap- because involve (MCL pointment prostitution 600.3801; MSA 27A.3801).
Dissenting Opinion by Kavanagh, — — — 5. Nuisance Prostitution Words Abatement and Phrases. public nuisance statute is directed to the abatement "lewdness”, "assignation”, "prostitution”, synony- or which are (MCL 27A.3801). 600.3801; mous terms MSA Disorderly — — 6. Prostitution House Words and Phrases. prostitution”
A "house of prostitute plies one in her trade, "disorderly while a bawdy-houses, house” includes com- gaming-houses, mon promis- people similar to which cuously purposes injurious morals, public resort for to the health, convenience, therefore, safety; prostitu- or a house of tion, bawdy-house, house, disorderly is a but not all disor- derly prostitution. houses are houses of — — Soliciting — Accosting. 7. Nuisance Prostitution persons perform used to accost or sexual Establishments solicit prostitution and be not houses of cannot elsewhere are statute; pursuant order to closed the nuisance abatement prostitution must be one in which constitute a house of (MCL 600.3801; compensation sexual acts are committed 27A.3801). MSA — — — 8. Prostitution Solicitation Lewdness Words and Phrases. prostitution Solicitation for is not covered under the act; rubric of "lewdness” because it is not sexual the term general normally refers class of activities associated designate prohibit houses of and is intended performed sexual acts of whatever nature which are for com- pensation.
Dissenting Opinion by J, Levin, See headnotes 5-8. — — Intoxicating — Nuisance 9. Abatement Prostitution Li- — Gambling. quors open public A conclusion that a business padlocked patrons, encouragement pro- because without prietor initiative, engage and on their own there in activities ancillary to the activities condemned nuisance money, illegal of sex for use of alcoholic beverages gambling offering agreeing go —such *6 engage activity compati- elsewhere to the condemned not—is history disposition ble with the under abatement statute (MCL 27A.3801). 600.3801;MSA Knowledge. — — 10. Nuisance Abatement knowledge legitimate Proof of of the owner of a business and degree participation by some the owner condemned activ- ity by patrons padlock required his public business under the nuisance abatement statute because (MCL 27A.3801). patrons 600.3801; of the activities of MSA — — — 11. Nuisance Abatement Prostitution Statutes. light history of the red abatement sustains the consist- designed ent the acts construction that were to abate nuisances places occur; at houses or where sexual acts such abatement applied solely acts have (MCL activity been to commercial sexual 27A.3801). 600.3801;MSA — — Assignation — 12. Nuisance Abatement Words and Phrases. "place properly assignation” One cannot read in the nuisance place agreement abatement statute to mean the where the for place agreed- is made rather than the where the upon meeting agreed-upon purpose occur; for is to even if the term is not limited the consistent construction of red- statutes, ordinary English usage abatement as a matter of appointment purposes, it means for sexual (MCL appointment 600.3801; where the is made MSA 27A.3801). Prosecuting Attorney, Cahalan, William L. Ed- Reilly Principal Attorney, Appeals, Wilson,. ward Corrigan, Prosecuting and Maura D. Assistant Attorney, plaintiff.
Hyman, Gurwin, Nachman, Friedman & Winkel- Friedman) (by Grant, man Schon, Abba I. Mich Opinion op the Court & Grant Wise An- for defendants Gardens, derson’s Inc.
Allen & Tendler and Norman L. Zemke Richmond. defendants reverse). (to granted We leave these
Ryan, cases to proof consolidated decide whether instances of accosting numerous occurred at certain places finding is sufficient to sustain a such constitute nuisance subject to abatement 600.3801; (hereafter, under MCL MSA 27A.3801 act). We hold that it is and reverse the of Appeals.1 The pertinent facts of these proceedings can be found in Justice opinion. We write Kavanagh’s separately agree because we do not with his analy- sis of the applicable law to these cases.
Justice finds that Kavanagh this Court’s recent decision, State ex rel Wayne County Prosecutor v Corp, Diversified Theatrical (1976), strictly NW2d limits application *7 the abatement act to houses of prostitution, assig nation or lewdness where sexual acts are commit agree, ted. We do not and read that decision as standing solely proposition for the that motion picture theatres enjoined from showing obscene films under the abatement act. granted We note leave was in these cases for the limited deciding However, acknowledge this issue. we that a
judgment prosecution for abatement in a of this nature cannot be finding knowledge rendered without a of the and solicit- ing part operators place on the of the owners or of found to abe acquiescence nuisance and their in those activities. finding judge Levenburg Such a was made the trial in the case. finding yet No such has been made in the Richmond case because the yet place. trial has not taken The Richmond case before us on an is appeal summary judgment. from a denial of defendant’s motion for in perti- 600.3801; provides MSA 27A.3801
MCL part: nent vehicle, boat, aircraft or building,
"Any lewdness, prostitution or assignation or purpose of prostitutes kept use of by, or or used gambling, * * * hereby declared a persons, disorderly or other nuisance * * * as enjoined and abated shall be rules. provided in the court provided, and as hereinafter servant, employee who agent or person, or his Any shall building, own, lease, any or maintain conduct by any any used for vehicle or any of the acts forth or where persons above set of the above enumerated on, conducted, permitted or carried are supplied.) (Emphasis guilty of a nuisance.” interpreting difficulty "lewdness, prosti assignation statutory phrase, act, determining its in this tution” as used us, stems from facts before applicability this statute states that in Diversiñed which dictum "* * *. prostitu houses of apply was intended * * *”2 are assignation and that lewdness tion We do not prostitution.3 synonymous both controlling these cases. accept this dictum attempt apply involved an Diversiñed showing theatres picture act to motion the statute held opinion obscene films. thea picture motion was not intended to apply are but are not committed tres where sexual acts that decision reaching portrayed on the screen. jurisdictions other the Court reviewed decisions of to determine involving apparently similar statutes purview fell within the "obscenity” whether "lewdness, prosti statutory phrase its tution”, In the course and found it did not. (1976). 244, 246; 240 NW2d (1976). 244, 249; 240 NW2d *8 Mich Opinion of the Court appears primarily review, which focused to have obscenity lewdness, on whether the Court quoted appellate an Illinois court decision which equated that stated lewdness could not be with obscenity, prostitu synonymous but must be with tion, when term in a the former was found prohibiting the use assignation prostitution.
lewdness, addition, In noting possi stated, the Illinois court after other assignation, ble, innocent definitions of that this synonymous prostitution.4 term also was that, We find in order to determine whether soliciting purposes instances of prohibited constitute conduct under 600.3801; 27A.3801, MCL MSA must we focus on meaning "assignation”, statutory term focusing rather than on the term "lewdness” as Kavanagh does, Justice and determine whether synonymous statutory with the term "prostitution”. seeking to determine the definition of the
statutory
"assignation”,
term
note
we
that
this
long recognized
primary
Court has
rule
governing
interpretation
of statutes is to ascer-
give
Legisla-
tain and
effect
the intention of the
process,
ture and that
in this
"effect must be
given,
possible,
every
if
word,
sentence Rapids Crocker,
section”.
Grand
219 Mich
(1922). Consequently,
182;
Assignation defined, is not statutorily and a Michigan of review case law has disclosed no precedent which finally has and authoritatively defined that term. We read the definition of this term found in Diversified as dictum it and hold does not control the instant cases which do not involve the showing obscene films but do involve conduct substantially prostitution. connected with
Because we find no statutory definition or con trolling term, judicial definition of this comply we legislative with the directive to construe words used in according statutes to common and ap proved usage, and look to the common meaning of the term "assignation” question resolve before us.
Webster’s Third New International Dictionary (1966 ed), Unabridged 132, p assignation defines as appointment "an of time and for meeting [especially] for illicit sexual relations”.
The Random Dictionary English House (1969 Language: The Unabridged Edition ed), p defines term as "an appointment for a meet- ing, [especially] a rendezvous; lover’s secret a lov- er’s tryst”.
Finally,
the term "assignation”
given
definition,
following
CJS, Assignation,
in 6A
p 582:
"The word
appointment
is defined as
an
of
of
time and
meeting
interview;
chiefly
used
love interviews and now
commonly
a bad sense.”
People
Sill,
Wayne Prosecuting
See
Attorney
310 Mich
570, 575;
(1945),
Diversified,
NW2d
as cited in
396 Mich
(1976),
acknowledged
Consistent act in the abatement the term encompasses instances prostitution instances such because appointment making the of involve purpose n.7 limiting this prostitutio findWe appointment making of an definition ap with is consistent use of legislative eliminate parent property intent prostitution; avoids with in connection the na is of prohibiting innocent conduct rule assignation; is consistent ture a sociis.8 of noscitur *10 appellate 7 accepted by lower has been this definition We note that jurisdictions. in courts other (La 1963), 856, App, Menendez, writ 859 So 2d 158 In Garrison (1964), that 643; the court found 2d 229 160 So 245 La
refused
ordinarily
activity
in the
included
was an
for
solicitation
understood
assignation.
dictionary
definition
(1951),
158;
Baldino,
Super
the court
Coleman, C.J., and Williams and Fitzgerald, JJ., Ryan, concurred J. (for affirmance).
Kavanagh, question these consolidated cases is whether proof that premises occurred on the regulate sufficient a place as a public nui sance under act”, "red light abatement MCL 600.3801; MSA 27A.3801. The trial court in each is, case it held that and the Court of Appeals reversed. We affirm the Court of Appeals.
Each cause was upon commenced a complaint Wayne filed County Prosecutor’s office. A trial was held in Levenburg. There was lengthy testimony prostitutes frequented Anderson’s Gardens, a bar Detroit, located in the City solicited sexual acts performed to be elsewhere. The trial court made findings of fact that within days prior filing of the complaint, solicit- ing accosting had occurred on premises. The court also found during the period from 1, January to July over 160 arrests for soliciting and accosting on the were made. Based on these findings, the trial court *11 found Anderson’s Gardens to be a used by * * * is "It known from its associates. The is of word or accompanying from the known words. general specific "The doctrine means that words are associated other, with and restricting general take color from each words to (Citations omitted.) analogous general.” sense to less provides part: The statute "Any building, vehicle, boat, purpose aircraft or used the for lewdness, assignation prostitution gambling, by, of kept hereby or used * * * prostitutes disorderly persons, for the use of or other is ** * enjoined declared a nuisance and shall be and abated as provided, provided hereinafter and as in the court rules.” Dissenting Opinion Kavanagh, assignation, of used prostitutes statute, under the subject and thus to abatement defendants permanently enjoined court the The the purpose the bar to be for permitting from assignation. of Appeals the of reversed. appeal, On " in as 'assignation’ court’s of interpretation
trial
appointment
pur
for
cluding
making
the
of an
including
thus
the act of
prostitution,
of
poses
was
to be erro
soliciting
prostitution”
for
held
(1977).
90, 93; 254
75 Mich
NW2d
App
neous.
in opinion
on this
Court’s
Relying
Theatrical
Prosecutor v Diversified
County
Wayne
(1976),
244;
scope of whether the statute determining question intended to to motion theatres apply picture was Citing decisions exhibiting obscene movies. several states,2 found that the statute in other we See People Goldman, 7 Ill App 3d 287 NE2d (1972); *12 Levenburg 469 v Dissenting Opinion Kavanagh, J. " * * * 'directed to the abatement houses of lewdness, assignation, ”, prostitution’ or and that "lewdness, assignation, terms and prostitu- tion” are synonymous. 248-249. Accord- ingly, we that held "was houses intended to apply and not theatres where sexual are picture motion committed but are portrayed the screen”. 396 added). Mich 246 (emphasis Appellant urges give now us to a narrow reading to the Diversiñed opinion, apply the abate- ment act to bars where sexual acts are not com- mitted but are solicited for performance elsewhere. Two basic are arguments advanced in support. It is asserted that a "house of prostitution” is not lim- ited to where sexual acts are committed. Rather, the term should be defined broadly and equated with the definition of a house” "disorderly Thrine, v People found in 691; Mich (1922): NW 405 " house, disorderly sense, 'A in its restricted is a people abide, house in they resort, or to which disturbing repose of neighborhood; but in its enlarged more sense it bawdy-houses, includes common
gaming-houses,
character,
of like
to which
people promiscuously
resort
injurious to
morals,
public
health,
the
Nor
convenience,
or
or
safety.
it
essential
that
any
there be
disorder or distur
public peace
bance in the sense
the
it
disturbs the
quiet
neighborhood.
enough
It is
that the acts
there done
contrary
are
to law and
subversive
morals, and the result
is the same whether
the unlaw
ful acts are
denounced
the common law or by
” 3
statute.’
State,
267;
Murphy Morley,
(1957); State,
ex rel
v
63 NM
P2d
Gatter,
153;
(1953); State,
Carroll
2d
Wash
As is house, disorderly is a bawdy-house, prostitution, prosti disorderly houses are houses but not all *13 in which a prostitution tution. ”A house of is one Prostitution, CJS, 73 plies her trade”. prostitute Prostitution, of the prostitute, trade p 226. § acts performance of sexual commonly refers accosting and and Soliciting compensation. are different and distinct con prostitution itself 4 750.448; Recognizing MSA 28.703. MCL cepts, drawn, Court customarily Alabama distinction complaint a recently held Appeals of Criminal herself prostitute the defendant "did alleging indiscriminate lewdness” did making an offer to Birmingham, Holloway v charge prostitution, (Ct So 535 App 568; App, 55 317 2d Crim Ala (1975). den 294 Ala 759; So 541 cert 1975), 2d stated, App 55 Ala 574: perform appellant made solicitation to "Here and an unnatural sex act a named sum of natural money. got that. proposition no further than There affair, disrobing, touching no no of the was no bedroom bodies, short, money activity. In paid, no no sexual prostitution (Empha- crime of was not committed.” added.) sis in order a "house of We hold to constitute sexual prostitution” must be one in which Peterson, General, Optometry Attorney of Board Examiners 445; (1969); Dearborn Ins Co v 381 Mich 164 NW2d National (1950). Ins, 107; 44 Comm’r NW2d 892 750.448; prohibits soliciting accosting. It 28.703 MCL MSA provides: female, older, "Any age person, years male who shall or accost, public place, any any or invite another in or in or from solicit vehicle, word, means, gesture any building other commit act, guilty prostitution any be or to do other lewd or immoral shall added.) (Emphasis a misdemeanor.” State v Dissenting Opinion by Kavanagh, compensation. acts are committed for Premises but no sexual acts occur are not houses cannot pursuant closed to the abatement statute. Appellant argues limiting applica- also bility prosti- abatement statute to houses of requiring tution, and that sexual acts occur on the premises, ignores Legislature the effect the in- give "assigna- tended to the terms "lewdness” and tion”.
These terms are not defined in the
statute.
Diversiñed we ascribed to those words a
history
we found
"clear
[abatement]
these
statutes”..
Mich 250. Cit
ing
Murphy Morley,
State, ex rel
63 NM
(1957),
statutory
question massage par masturbatory of whether a prostitution under lor is a house of abatement statute. In the Illinois
determining was, that it assigned
following interpretation court App "lewdness”, term 30 Ill 3d 704: "Although traditionally the term 'lewdness’is viewed being including 'prostitu as tion,’ than broader the term (People Lackaye, App 348 Ill 109NE2d 390 6Appellant’s argument following language is based on the Goldman, Diversiñed, supra, 255, quoted the court in fn 2 Mich 249: " purpose, 'To fix we must read text in context and if a word is company keeps, synonymous known prostitution. analogous it then "lewdness” is contemplates This aid that where two or more words of statute, employed together they *15 are in a are sense, cognate express understood to relations, be used their to the same give example, expression color and to each other. For "assignation” appointment, tryst, could be an innocent a chaste (even destiny), meanings a rendezvous with at least those are that can it, be so ascribed to but not here in context its with "lewdness” "prostitution”. "assignation”, euphemism years ago. Thus coined to ”’ protect hypersensitive, synonymous "prostitution.” with State v Levin, J. adopted Supreme opinion [1952]; 2d Court, Illinois 1 Ill [1953]) NE2d such refer terms to general normally class activities are
same which (or prostitution with houses of such associated whatever called). They be establishments are intended designate prohibit sex acts nature whatever ” added.) performed money. (Emphasis for are which is not Solicitation "lewdness”, rubric covered under the as it is not sexpal most, At act. solicitation is the offer a perform compensation. act a sexual Establish- perform used to solicit or offer to elsewhere ments the pursuant covered the statute be closed cannot County to it. See State ex rel Washtenaw Prosecuting Attorney Telegraph v Western Union (1953). 84; 57 Co, Mich NW2d 537 opinion Diversiñed, In accordance with our applies only that the abatement we hold prostitution, assignation lewdness, houses places where are sexual acts committed. Appeals Court of is affirmed. J., J.
Levin, Kavanagh, concurred with (dissenting). agree Ljevin, I Kav- Justice opinion, stated in anagh, reasons his Appeals the Court of should be affirmed. I write separately respond opinion of the Court. reaching expressing sensitivity a result to a particular concern, societal the Court overlooks its point decisions, earlier result, to a different an untenable on the word construction "assignation”.
I The Court’s that a conclusion business open public may padlocked because *16 455 Mich 474 by Dissenting Opinion Levin, J. proprietor encouragement the
patrons, without engage initiative, in activ- there and their own on statutorily ity ancillary activi- condemned the to illegal money, use of alcoholic ties beverages sex for agree- offering gambling or as or —such engage ing go the in condemned elsewhere history compatible activity disposition the not—is padlock statute. under early only many cases, one cited Of the responding dictum, Its in is Sill.1 the Court argument, title-object the stat that prop effectively” the eliminate "use ute is "to prostitution, gambling, erty” "in connection with liquor, is et cetera” a construc and illicit sale of padlock in statute which dissenters tion of placed it. The would have on Western Union2 majority however, ruled, that and other cases Sill (Tate Bitonti3), sustained the seizure run of automobiles numbers sale although betting completed no acts tickets mutuel of did not announce gambling them, in to have occurred were shown comprehensive permitting rule ancillary activity padlocking proof facilitat amounting ing effectuating to the con but activity.4 demned 1 Sill, 570, Prosecuting People Wayne Attorney rel v 310 Mich ex (1945). 575; 756 17 NW2d 2 County Prosecuting Attorney v Western State ex rel Washtenaw (1953). Co, 84, 97; Telegraph Union NW2d Bitonti, Wayne Prosecuting Attorney People 306 Mich ex rel 115, 118-119, 123; (1943); Wayne People Prosecut- 10 NW2d (1943).
ing
Tate,
Attorney v
306 Mich
In Western
ground
telegraph
that
it had been
office
,5
with” or
"in connection
"used
of’
activity
the condemned
to facilitate or effectuate
(gambling)
was
of abatement
An order
elsewhere.
although
Union "knew”
Western
reversed
daily
"acquiesced”;
it
conceded
transmitted
it
wager
money for wa
wires offers
its
over
pay-offs.
gers
held
This
nevertheless
activity (gambling)
condemned
that because the
telegraph
entirely
and,
in the
office
not
occur
did
in
(where the
the automobile cases
contrast with
car),
slips
proprietor
betting
in the
had
drivers
might
lawfully
nothing
possessed
it
not
padlocked.
possess,
not be
the office could
in Western Union for
concern manifested
participat
persons
protecting
ing
interests of
appears
activity
also
condemned
Maynard’s
the Court concluded
Petition6
candy vending
cigarette
machines and
subject
were not
contents owned
another
their
liquor
by the
laws
seizure for violation
*18
they
premises
located.
were
of the
where
owner
The
supported
7
that
Sill nor Martin
neither
declared
presence
theory
that
the
the
seizure on
of
to the violation
such
contributed
of
machines
adding
liquor
by
the
of
to the convenience
the
laws
"relation” between
The Court saw no
customer.
their
presence
illegal
liquor.
of
and the
sale
appear
general
to
cate-
The cases
fall into two
gories.
category
consists of those cases
first
points
Michigan,
possess
from
outside the
in
this
lawful
State,
bets,
by
placing
as
our courts
there
be restrained
therewith declared
defendant’s
nuisances,
of business used in connection
Id.,
subject
pp 90-92.
to abatement.”
5
4,
infra,
language,
supra,
statutory
and fn
See fn
for this
argument
in
Union
thereon.
the
of
Western
based
the dissenters
(1952).
6
Petition,
546;
Maynard’s
53
370
333
NW2d
In re
Mich
7
fn 3.
See
State v
477
by
Levin, J.
activity
engaged
solely
condemned
in
the
is
person
possession (e.g.,
in lawful
owner,
as
bailee)
lessee,
property
of the
automobile
—the
cases, Sill, Tate, Bitonti,
Martin,
and the
category
case, Robinson.8 The second
activity
consists of those cases where unlawful
is
engaged
patrons
except
what,
in
of
for that
activity,
generally a
lawful business —the tele
graph office
Union,
in Western
a dance hall
Harding.
Schoonmaker,9 and a resort in
category
the
made is in the first
claim
When
need,
is no
under
there
and the
prove knowledge
participation by
cases,12to
property sought
pad
of
owner
to be seized or
sought
padlock
however,
Where,
locked.
it is
legitimate business
because
activities of
patrons,
required proof
knowledge
the Court has
of
degree
participation by
some
owner
activity by patrons
premises.
on his
condemned
sought
where,
here, it
was
Schoonmaker
padlock
place open
based on activ-
ity
patrons,
people
the Court declared that
proprietor’s
par-
must show that
"use bears a
ticipating
patrons
activities
on his
relation”
padlock act,
condemned
and con-
cluded
it had failed in that
burden. The
analysis
liquor
Court’s
was "not used by patrons
hall
dance
but secreted
outside hall”
consumed,
where it was
inconsistent
Attorney
Robinson,
99;
rel
General v
State ex
250 Mich
229 NW
(1930).
People Schoonmaker,
(1927).
on go offering agreeing commit outside or trons the condemned offense. reported Harding only case in the 60- —the history year where a statute13
odd place padlocked activities was based patrons owner was evidence —there participated "acquiesced” only in the condem but employees encouraging activity by his ned himself intoxicating underage supply customers with his liquor establishment, and that unlicensed in his engage, encouraged and had customers were by possessing activity engaged, in the condemned prem intoxicating liquor consuming on the ises. present language its form in the statute took The material act, amending original 1915 PA red 1919 PA without PA The statute was re-enacted amended 337. as 9093; change 1929 CL 389. See 1915 CL as 1925 PA material 692.251; MCL 600.3801. CL currently operative pertinent provision reads: of the The vehicle, boat, purpose building, place "Any used for the aircraft or lewdness, gambling, by, or used or or or of kept the unlawful keeping disposing any persons, prostitutes disorderly or used for the use or other sale, manufacture, transporting, storing, possessing, sale, bartering, furnishing giving away, or otherwise drug any hypnotic law of as defined or narcotic and/or brewed, fermented, vinous, malt, intoxicating spirituous li- or part liquors beverages, any quors intoxicating, any of which is mixed or or furniture, hereby fixtures a nuisance and the declared boat, aircraft, vehicle, building, any or and contents all such such nuisance, intoxicating liquors are also declared a therein hypnotic drugs shall be and nuisances all enjoined court rules. narcotic and/or such provided, provided in as hereinafter abated servant, employee Any person, agent who or shall his lease, building, own, any conduct or maintain vehicle any persons any set forth or or for where of the of the above conducted, permitted any of is acts above are enumerated 600.3801; on, guilty 27A.3801. of a MCL MSA carried nuisance.” on the argument Union based in Western dissenters 4, supra. appears in fn words "used of’ III, part "kept to in infra. use of’ clause is adverted *20 State v Dissenting by Opinion Levin, unprecedented padlock public place
It a than the ancillary patrons less activity based condemned act. completed by padlock offense compatible history is not with the Today’s decision under the act.14 disposition 14 Schoonmaker, Court, reversing padlocking In an order beverages, patron consumption de- dance hall based on clared: of alcoholic proofs may illegal persons by "The be said to show some dances, attending enough. but that is not Defendants did not they permitted illegal a nuisance maintain unless such use of *** premises; *. persons "It seems to that the statute us denounces a where connivance, permitted, expressly impliedly, by are either such as furnishing aid or accessories to resort there for the * ** drinking intoxicating liquors. inviting public to One his place esce in possible, occupant acqui- for commercial must take care not to invite or transgressions transgressions may happen of the law. That wrongdoer by but remain offenses of unless tolerated permissive the extent of use of the such purpose person another, deprive or indifference thereto. The statute does not one property by illegal of the use of his reason of the acts of participating unless the owner’s use bears a relation to the violation. "Intoxicating liquor by was not used in the but secreted dance hall Schoonmaker, patrons supra, secretly outside of the hall and visited.” pp 181-182. Harding, principal intoxicating liquor where the claim was that minors, provided analyzed was the Court the case as follows: testimony was that at least half of the customers were "[T]here drinking intoxicating liquor, intoxicating liquor drinking and that were minors who in the were observed the defendants objection, being high college without some of them school or students. * * * Jr., George Harding, public, The defendant was intoxicated occasion, least, place, in the on numerous he occasions. On 1 at liquor furnished to a minor him. waiter drank with One waiters, minor, Jr., suggestion Harding, George at the of defendant permission, whiskey place. customary and with his for a waiter to customer in the sold in the It was negotiate pint whiskey, accept $5 sale of a from a place, go, purchaser and then either or direct the go, parked parking liquor to a car outside in the lot was kept. testimony premises by whiskey There was sold on the was waiters, knowledge George Harding, with the of the defendant Jr. Jr., permission George Harding, When 1 of the purchase make a buck.’ The minor to to waiters asked 'Yes, customer, whiskey Harding any way for a told him whiskey customer. then sold a fifth of pints whiskey premises by A number were sold on the waiters at pint. a$5 Levin, J.
II altogether ignoring earlier its Court, having grappling pertinent decisions, avoided disposition, proceeds inconsistency of its of the term definition announce untenable assignation”. "place of "assignation” "lewdness”, sure, terms
To be
differing meanings. Many
"prostitution” have
and
assignations
prostitution.
not involve
do
history
acts,
of the red
*21
in
however,
the
construction
consistent
sustains
jurisdictions
the acts were
that
this and other
designed
at houses
to abate nuisances
occur;
acts have
abatement
where sexual acts
such
activity.15
applied solely
sexual
to commercial
been
community
reputation
place
lewdness
had
"The
a bad
tending
testimony
assignation.
to show lewdness
and
talk
These rooms
There was
adjacent
floor, suggesting
in the
rooms.
assignations
the dance
customary equipment of hotel bedrooms.
had the
appellant
by the
estab-
that
evidence adduced
"We conclude
place
It was used for
was a nuisance under the statute.
lishes that
possessing intoxicating
disorderly persons.”
liquor,
use of
and for
45-47,
pp
Harding, supra,
15 Michigan
one
'red
abatement
"The
of
of
statute is
a number
acts’,
prostitution
subject
early
of
to
houses
enacted
1900s
1909,
act, passed in
served as a
abatement as nuisances.
model for similar
Iowa
legislation in at
two other states.
least
prostitution.
applied consistently to
of
acts have been
houses
"These
Supreme
that acts of
In
prostitution
finding
that evidence
the Nebraska
Court held
support
a
a
was insufficient
had occurred at
hotel
under
statute.
that
the hotel was
nuisance
the Nebraska
English Fanning,
(1914).]
as a matter of ordinary —the appointment of the for purposes, sexual the. appointment is made. Ill I have considered whether "kept clause of prostitutes the use disorderly or other persons”18 separate constitutes a padlocking basis for bars include, among their patrons, prostitutes and their customers.19 To so conclude might re- 18No claim is made that Anderson’s Gardens a mere front prostitution. judge The trial found: building approxi- "Now this establishment itself is located in mately approximately length. The bar feet. itself 76 feet in x two sets, box, juke There are television a the time shuffle board and air game hockey are in the table other a during part period involved herein. There approximately 38 tables located the bar. Live music is offered evening signs posted discourage and were from time time to hopping, loitering. liquor, solicitation Aside from beer drinks, offers bar sandwiches and chili to its customers. It is busy bar. persons patrons many seg- "Its include from economic ethnic persons, electricians, society. elderly our From ments of union busi- salesmen, agents, vendors, students, ness lawyers, accountants a few bankers, policemen, duty, truck drivers and and off all frequent ning bring spouses Anderson’s Gardens. Some their for an eve- years Levenburg developed friendships out. Over the defendant police police socially with some officers who would' bar. visit the These encouraged Levenburgs officer friends would be to visit the bar fact, safety purposes. customers, for including as an accommodation officers, police management pay the bar cash would checks. And, precinct turn, protection public, police to offer at the local personally accompany would Mr. laden cash regular to and from his bank on a basis. Most witnesses described the noisy, very friendly gives bar as a gives bar which excellent service and drink, addition, good is, food and and so it is. It a safe bar inside. "However, reputation it also has the of a bar where one can meet pick up prostitutes. top It was rated one officer as one of the prostitutes hang five bars in Detroit where out.” Menendez, (La 1963), App, In Garrison v So 2d employees at the course, unnaturally (per night patrons purchase "champagne club solicited per bottle, price price of $60.00 inter- to include sexual naturally elsewhere, apartment either at the females’ os) Id., p at the rear itself’. 860. booths the club Dissenting Opinion Levin, including defining
quire ancil- word "use” *24 completed prosti- lary acts of other than activities gambling illegal intoxicants, traffic in tution, disposition history contrary under this statute. on this rest decision does not
Since the Court judge padlock in trial act and the clause of finding Levenburg Gar that Anderson’s made no place "kept prostitutes” for the use dens awas Harding(cid:127), not, in the record does contrast in were themselves the owners here show pro employees directly through their volved supply viding customers, their there the illicit dissenting opinion to consider no need this padlocking where, the statute authorizes whether jurisdictions cited as in the cases from other "assignat support definition of its providing the ion”,20 the is involved owner (1951), Baldino, 158, 160; Super A2d In State v proprietor 11 NJ girls to for the of illicit sexual "offered two them In Co, price”. People Bayside Land 48 Cal for a stated intercourse App the (1920), opinion 257, 259; is unclear whether 191 P simply provided prostitutes proprietor to customers or "encour- aged” presence. their Bayside were decided under red Garrison and under statute. and Baldino another premises, on the Baldino’s convic- Because no sexual act occurred reversed, stating perhaps been he could have tion was convicted the court language under other of the statute. performed premises. In on the Garrison sexual acts were padlocked place only on Bayside, the based case where a court premises, premises sexual acts off solicitation proprietor may provided least have women on the at place "encouraged” presence. say that their court did not place agreement into was a the solicitation and was entered rather, assignation; assignation investigators there an it said that the had "made repair might be to the other where rooms "assignation premises” spoke made on the obtained”. It the made", "assignation thereby recognizing the distinction be- so (the making agreement) assignation tween (the meeting), appointed itself which this Court distinction time despite Bayside. ignores, its favorable citation (Emphasis supplied.) 20See fn 13 for text of statute. Levin, J. supply illicit be availed of off the premises. IVIoody,Jr.,
Blair part J., took no in the deci- of these cases. sion