State v. Rabinowitz

85 Kan. 841 | Kan. | 1911

The opinion of the court was delivered by

Johnston, C. J.:

Accepting the averments of the petition as facts, was the state entitled to an injunction under either the general provision of the code which authorizes the enjoining of a common nuisance, or the section of the prohibitory liquor law which provides, for enjoining the maintaining of a place where intoxicating liquors are sold or given away in violation of law or where persons are permitted to resort for the-purpose of drinking such liquors?

If the provision of the prohibitory law for enjoining or abating nuisances was left out of consideration, or had never been enacted, there would still be sufficient authority for enjoining the nuisance in question. The code specifically provides that “an injunction may be granted in the name of the state to enjoin and suppress the keeping and maintaining of a common nuisance.” (Civ. Code, § 265.) This provision gives direct authority to the state for the injunction sought if the acts and things charged against appellees in the petition constitute a common nuisance. At the common law, acts done in violation of the law, or which are against good morals or public decency, and which result in injury to the public, constitute a public nuisance. (1 Wood on Nuisances, 3d ed., § 17; Joyce op. Nuisances, § 5; 6 Cur. Law, 828.)

A nuisance is public if it affects the community at large or if it affects a place where the public have a. right to and do go, such as a park, street or alley, and which nuisance necessarily annoys, offends or injures those who come within the scope of its influence. That the illegal act is publicly, repeatedly and persistently committed in the streets of a city, thus offending and injuring all who use the streets and who necessarily come within the range of such an influence, is an important factor in determining whether it constitutes a common or public nuisance. For instance, it has been .held that “streetwalking” might be stopped, as it was inhibited by the common law (Braddy v. City of Milledgeville, 74 Ga. 516) ; also, that the setting up of a menagerie and circus in a graveyard, which had been dedicated to a municipality, was a public nuisance (City of Kansas City v. Lemen, 57 Fed. 905) ; and that the exhibition of a stud horse on the streets of a town amounted to a nuisance (Nolin v. The Mayor, etc., [Tenn.] 12 Yerger, 163). The singing of ribald songs in a loud and boisterous manner in the streets for ten minutes was held to be a nuisance (State v. Toole, 106 N. C. 736, 11 S. E. 168), and the same court held that the repeated use of profane and blasphemous language on the public streets in the hearing of many persons passing and repassing was a public nuisance (State v. Chrisp, 85 N. C. 528). The discharge of fireworks and of heavily charged explosives on the public streets in a densely populated part of a large city was held to be a public nuisance. (Speir v. City of Brooklyn, 139 N. Y. 6, 34 N. E. 727; Landau v. City of New York, 180 N. Y. 48, 72 N. E. 631.) In addition to these considerations, it has been held by our own court that every place where a public statute is openly, publicly, repeatedly, continuously, persistently and intentionally violated is a public nuisance. (The State, ex rel., v. Crawford, 28 Kan. 726.) In the present case it is alleged that the offensive and injurious acts were committed on the public streets and alleys of a large city, and these acts, it appears, are injurious to public morals, contrary to the policy of the state and in direct violation of statute. It is further shown that the streets have been thus openly, persistently and illegally used for a period of many months prior to the bringing of this action. It is clear that the charge made against appellees constitutes a common nuisance at the common law and is one which may properly be enjoined under the general provisions of the code.

The fact that the maintaining of a common nuisance is made a public offense, or that special provision is made for its abatement, is not necessarily a bar to the enjoining of a public nuisance by a court of equity. While courts of equity can not be used to punish crime or enforce the criminal laws, still, if the acts done and threatened to be done are such as to bring them within the jurisdiction arid power of a court of equity, its arm is not shortened by the fact that the same acts may be denounced as a crime. The mere criminality of an act, whether it be a public or private nuisance, will not deprive the injured party of his equitable remedies nor shelter the wrongdoer from the judgment of a court of equity. In The State, ex rel., v. Crawford, supra, is was said:

“While it is unquestionably true that the keeping of the saloon in question is a criminal offense, and its operation involves the commission of many criminal offenses, yet we can not think that these facts can possibly take away any of the jurisdiction which courts of equity mig'ht otherwise exercise.” (p. 735.)

The supreme court of the United States held, in Mugler v. Kansas, 123 U. S. 623, that:

“ ‘In case of public nuisances, properly so called, an indictment lies to abate them and to punish the offenders. But an information, also, lies in equity to redress the grievance by way of injunction.’ (2 Story’s Eq. §§ 921, 922.) The ground of this jurisdiction in cases of purpresture, as well as of public nuisances, is the ability of courts of equity to give a more speedy, effectual and permanent remedy than can be had at law. They can not only prevent nuisances that are threatened, and before irreparable mischief ensues, but arrest or abate those in progress, and by perpetual injunction protect the public against them in the future; whereas courts of law can only xeach 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.” (p. 672.)

The question was before our court in the recent case of The State v. Lindsay, ante, p. 79, 116 Pac. 207, where it was said:

“Courts of equity are reluctant to use the process of injunction where the remedy by indictment or information is efficacious, but will not hesitate where the remedy is not adequate and it is necessary to protect the rights of the public or an individual. A court is not powerless to prevent the doing of an act merely because it is denounced as a public offense.” (p. 83. See, also, In re Debs, Petitioner, 158 U. S. 564; State ex rel., v. Canty, 207 Mo. 439, 105 S. W. 1078; Vegelahn v. Guntner, 167 Mass. 92, 44 N. E. 1077; The Columbian Athletic Club, ex rel. McMahan, v. State, 143 Ind. 98, 40 N. E. 914; The North American Ins. Co. v. Yates, 116 Ill. App. 217; Commonwealth v. McGovern, 116 Ky. 212, 75 S. W. 261.)

It is said that the statutory remedy for the punishment and abatement of common nuisances is adequate, and therefore injunction is not necessary nor available. In the first place, the remedy by prosecution is only applicable to existing nuisances, and can not reach future illegal acts and nuisances which the scheme of .appellees contemplated. According to the averments in the petition, appellees are doing the illegal acts in many places throughout the city at the same time, and are moving up and down the streets of the city, rendering it difficult to trace their operations, and are conducting the business through so many agencies and in such devious ways that a multiplicity of prosecutions and proceedings would be necessary under the remedies provided by the prohibitory law. The migratory character of the nuisances, the number of them, the persistence of appellees in their unlawful action, and the various subterfuges, shifts and devices employed by them in committing public nuisances, show clearly enough that criminal prosecution would be an inadequate remedy. It is a well-recognized rule that equity will take jurisdiction to prevent a multiplicity of suits. A court of equity can prevent threatened nuisances, as well as restrain and abate existing ones. It may, in a single proceeding, put an end to those in progress and perpetually enjoin those in contemplation.

The ground of adequacy of legal remedies, however, is not a very, strong or important consideration in cases like this, where the express right is given to the state to enjoin and suppress the maintaining of common nuisances. It was said in The North American Ins. Co. v. Yates, 116 Ill. App. 217, that, “independent of statute, the state may file a bill to enjoin the violation of its laws where the acts complained of are injurious to the public. And it is immaterial that such acts are punishable under the criminal statute, or that there is an adequate remedy at law, or that the complainant has suffered no injury.” (p. 220.) In speaking of the jurisdiction of a court of equity in cases of this kind it has been said that “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 of indictment for a public nuisance is not an adequate remedy at law precluding the remedy by injunction.” (21 A. & E. Encycl. of L. 708.)

There are sufficient grounds alleged for invoking the jurisdiction of a court of equity to enjoin and suppress, public nuisances under the general provision of the code, but we think that injunction will also lie under the provisions of the prohibitory law. It provides that:

“All places where intoxicating liquors are manufactured, sold, bartered or given away in violation of law, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter or delivery in violation of the law, and all intoxicating liquors, bottles, glasses, kegs, pumps, bars and other property kept in and used in maintaining such a place, are hereby declared to be common nuisances.” (Laws 1901, ch. 232, § 1, Gen. Stat. 1909, § 4387.)

“The attorney-general, county attorney, or any citizen of the county where such a nuisance as is defined in section 1, chapter 232, Session Laws of 1901, exist, or is kept, or is maintained, may maintain an action in the name of the state to abate and perpetually enjoin the same,” etc. (Laws 1903, ch. 338, § 1, Gen. Stat. 1909, § 4388.)

The contention of appellees is that the averments of the petition of the state do not sufficiently describe the place, or, rather, do not describe such a place as is contemplated by the foregoing statute. They allege, in effect, that appellees carry on their unlawful business and create a nuisance on the streets and alleys of the city. It is true, as contended, that ordinarily such unlawful business' is conducted and such nuisances are maintained in houses, apartments and rooms, and in proceedings brought under the statute quoted it has been said that the place should be so described that those interested can identify it. It is necessary that the description should be so definite that the parties can- understand the scope of the judgment, and so that officers called on to abate the nuisance may be able to identify it, and so that all can know the extent of the place to which the injunction ordered applies. However, the statute does not provide that the place must be in a building or enclosure nor does it fix any limit on the dimensions of such a place. It was held in The State v. Walters, 57 Kan. 702, 47 Pac. 839, that such a nuisance might be maintained on open ground and that two lots of a certain block in a city was a good description. In The State v. Dykes, 83 Kan. 250, 111 Pac. 179, a nuisance proceeding, the defendant was enjoined from maintaining a place in a certain county, and it was held that this blanket judgment, although broader than the charge against him, was not void. It was alleged and shown that he sold beer kept in a barrel in an alley, and that part of the alley so occupied and used by him was held to be a “place” and the testimony sufficient to.justify a finding that he was maintaining a nuisance within the meaning of the law. It was said:

■ “The want of other ‘paraphernalia’ did not prevent the spot occupied from being a ‘place’ within the condemnation of the statute, nor did its' location In an alley prevent his being its ‘keeper,’ so long as he used it for his own ends.” (p. 252.)

As the statute does not prescribe the character or extent of the place, the attorney-general or county attorney, in charging the maintaining of a nuisance, may make the description of the place as extended or limited as the facts and circumstances of the case may warrant. It may be in a building or in a room in it, or it may be on an open lot, or a block, or it may be in a field, or a park. As we have seen, it may be in an alley, and therefore it may be in a street. It was undoubtedly the intention of the legislature that every place in which a nuisance was maintained, wherever located and whatever the size or extent, should be abated. Ownership of the ground on which the nuisance is kept is not essential to the exercise of the power of injunction, as the Dykes case determined that the place might be on public ground. If the place of the nuisance is public the court must adopt methods of abatement suitable to the place and the situation. There could, of course, be no lien obtained on the premises, the place could not be padlocked or closed, neither could it be removed or destroyed. A nuisance may be abated by injunction or by some of the other processes mentioned. The injunction process is peculiarly applicable to the abatement of a nuisance kept in streets and alleys, or in any part of the public grounds of a city. The fact that a person moves backward and forward in the described place in conducting his unlawful business will not serve to protect the culprit nor deprive the court of the power to enjoin him from continuing the nuisance in any part of the place. An offender could not get beyond the reach of an injunction if he took a push cart, loaded with intoxicating liquors, and moved it about from one place in a park to another while making sales, and in a proceeding brought against him it would be sufficient to charge that he maintained a nuisance in the park. The same would be true if he made such use of a houseboat which he moved up and down the river in the center of a city. And it would be clear that if he carried on his business from a wagon, which he moved about in the busiest section of a city, that so much of the streets as he used might be described as the place of the nuisance. If the nuisance is of an ambulatory character and the offender is moving it from point to point over the city, and is thus illegally using, to some extent, all the streets and alleys of the city, no reason is seen why such streets and alleys may not be described as the place of the nuisance nor why the offender may not be enjoined from maintaining a nuisance on any street or alley of the city. Blanket injunctions covering a wide scope of territory, when the nuisance extends oyer only a small part of such territory, will not be issued, but the magnitude’ of the place and the range of the injunction must depend on the methods of the defendant and the circumstances of each case. In the case of State v. City Club, 83 S. C. 509, 65 S. E. 730, cited by appellees in support of the contention that an injunction can not reach so extended a place as that described, it was held that a general blanket injunction covering the whole of the state was not warranted, but it also recognized that it might be as extended as the devices and operations of the defendant in conducting the unlawful business and in keeping the nuisance. After deciding that there was no error in refusing an injunction restraining sales of liquor throughout the state and independently of the place where the nuisance existed, the court said:

“Possibly circumstances may be such as would justify the court in enlarging the sphere of its injunction, as where the court has reason to believe the offender, after injunction, will shift his nuisance to another place, so as to render the injunction practically useless. The court might prefer not to chase the offender from place to place, but might head him off by a broader restraining order.” (p. 515.)

The allegations of appellant show such conduct and circumstances in this case as were forecasted in the cited case, and they afford good grounds for enlarging the sphere of the injunction to the extent of the place described in the petition. The restraining power of the court as given by the statute is broad enough to reach the wrongdoer, whether he is in motion or stationary, within the described place, and however large the place of his operations.

It is suggested that the sales of liquor, taken from a warehouse in Missouri and brought into Kansas, where it was sold and delivered to purchasers, can not be enjoined as it would be an interference with commerce between the states. It appears from the petition that the sale and delivery of the liquor was made by the appellees themselves and that the delivery was made and the sales consummated within the state. The appellees were, therefore, punishable under the laws of this state, and the nuisance maintained by them in Kansas was subject to the restraining power of the district court. Parties can not escape' the condemnation of the law by storing liquors beyond the state line and then carting them back into the state, making periodical or occasional trips to certain places where the liquors are sold, and delivering them to persons on this side of the state line. They can not peddle the liquors up and down the highways of the state without subjecting themselves to the penalties of the prohibitory law and the restraining power of courts of equity.

According to the averments of the petition the appellees are resorting to a number of cunningly devised shifts and subterfuges intended to baffle the officers and defeat the enforcement of a law enacted for the protection of public morals, public health and public safety.. Knowing the policy of the state and the prohibition of a traffic that is conceded to be the greatest source of vice and crime and poverty and sorrow, they employ the tricks and fraudulent means enumerated to bring in and sell the prohibited liquors. They flagrantly undertake to thwart the policy of the state and contemptuously defy the law and its officers; but the courts will look ..through such pretenses and subterfuges and hold them responsible for their real intent and acts. Under the averments of the petition they 'are to be regarded as outlaws who are selling and delivering liquors and creating common nuisances within the state, and if the nuisances are shown to exist as alleged it is the manifest duty of the court to perpetually enjoin them.

The demurrers should have been overruled in each of the cases. The judgments are therefore reversed and the causes remanded for further proceedings.