77 Mich. App. 41 | Mich. Ct. App. | 1977
Lead Opinion
Defendants appeal from an order denying their motion for summary judgment. The action was brought by the Wayne County Prosecutor under MCLA 600.3801; MSA 27A.3801, to close defendant’s establishment, the Willis Show Bar, as a nuisance.
For purposes of considering summary judgment it must be taken as true that acts of accosting and soliciting occur in the tavern. However, it is also admitted by the prosecutor that no acts of sexual intercourse are alleged to occur therein.
The relevant portion of MCLA 600.3801; MSA 27A.3801 is as follows:
"Any building, vehicle, boat, aircraft or place used for the purpose of lewdness, assignation or prostitution or gambling or used by, or kept for the use of prostitutes * * * is hereby declared a nuisance * * * . Any person, or his servant, agent or employee who shall own, lease, conduct or maintain any building, vehicle or place used for any of the purposes or by any of the persons above set forth or where any of the acts above enumerated are conducted, permitted or carried on, is guilty of a nuisance. P.A. 1961, No. 236 § 3801, Eff. Jan. 1, 1963.”
Lengthy philosophical arguments are not required to resolve this case. Recently, the Michigan Supreme Court, in State ex rel Wayne County Prosecutor v Diversified Theatrical Corp, 396 Mich 244; 240 NW2d 460 (1976), ruled that the abatement
"We are' in accord with decisions applying these abatement statutes only to houses of prostitution. The meaning of the words 'lewdness, assignation or prostitution’ is clear in light of the history and purpose of these statutes and that meaning cannot properly be expanded by judicial construction.” (Footnotes omitted.) 396 Mich at 250.
Subsequently, this Court has passed on two cases almost exactly similar to the present dispute. In State ex rel Wayne County Prosecutor v Saksey’s Lounge, Inc, 71 Mich App 724; 249 NW2d 156 (1976), the Court distinguished the holding in Diversified. The majority there ruled that because appellant’s tavern was being used by prostitutes for an illegal purpose with appellant’s knowledge, the abatement act applied. The dissent in Saksey’s succinctly stated the author’s views:
"This language [quoting the statute] begs for judicial interpretation. The Supreme Court, in the Diversified case, supra, has supplied a reasonable interpretation consistent with constitutional limitations.
"The appellants’ bar was not a house of .prostitution.” 71 Mich App at 729.
The most recent, and in our opinion, compelling decision of this Court is State ex rel Cahalan v Levenburg and Anderson’s Gardens Inc, 75 Mich App 90; 254 NW2d 797 (1977). The facts were almost identical to Saksey’s and those of the instant case.
"In view of Diversified, however, acts of accosting and soliciting cannot be equated with the statutory meaning of assignation. The occurrence of a number of acts of accosting and soliciting in a building does not render that building a house of prostitution.”
We find that the Willis Show Bar is not a house of prostitution. It may not be closed under the authority of the abatement act herein cited.
Reversed.
Judge R. E. Noble, Circuit Judge, sitting on the Court of Appeals by assignment.
Dissenting Opinion
(dissenting). It would appear to be a foregone conclusion that I would dissent, since I signed the majority opinion in State ex rel Wayne County Prosecutor v Saksey’s Lounge, Inc, 71 Mich App 724; 249 NW2d 156 (1976). However, there are several basic reasons why I do not believe that State ex rel Wayne County Prosecutor v Diversified Theatrical Corp, 396 Mich 244; 240 NW2d 460 (1976), controls this case of Richmond.
The factual difference is clear. Diversified involved a theater showing obscene movies. It involved no charges of assignation or prostitution, so there was no occasion to interpret those two words. The only statutory term involved in Diversified was "lewdness”. Richmond involves a bar and solicitation of prostitution. The latter act does fall within the meaning of assignation (defined later). The language of Diversified relied on by the majority is dicta which I refuse to follow. If and
If Diversiñed is held to govern this case and Saksey, the Diversiñed opinion violates several cardinal rules of statutory construction.
1. No interpretation is necessary where the language is plain, certain and unambiguous, Dussia v Monroe County Employees Retirement System, 386 Mich 244; 191 NW2d 307 (1971). I find nothing obscure, uncertain or ambiguous in the language of MCLA 600.3801; MSA 27A.3801. The application of that language to the facts of Diversiñed was all that was required in that case without any' interpretation of the term "assignation or prostitution”.
2. If interpretation is necessary, a court is restricted by statute, (see MCLA 8.3; MSA 2.212), and its own precedents, unless it chooses to reverse those precedents. MCLA 8.3a; MSA 2.212(1) pertinently provides: "All words and phrases shall be construed and understood according to the common and approved usage of the language.”
Webster’s Third New International Dictionary (1964) defines the terms "lewdness, assignation or prostitution” in the sense that those terms are used in the statute as follows:
(a) Lewdness: the quality or state of being lewd which is defined as sexually unchaste or licentious.
(b) Assignation: an appointment of time and place for a meeting especially for illicit sexual relations.
(c) Prostitution: the act or practice of indulging in promiscuous sexual relations especially for payment.
"Lewdness, assignation or prostitution” are used in the disjunctive. It is apparent from their defini
"Every word should be given meaning and no word should be treated as surplusage or rendered nugatory if at all possible.”
This principle is violated if Diversified is accepted as controlling precedent in Richmond.
While I have never believed that the moral questions of drinking, gambling and sex can be legislated out of existence, so long as we have statutes which attempt to do so, it is not the prerogative of the courjts tp emasculate those statutes by unnecessary and unwarranted interpretation.
I vote to affirm.
