Opinion
14370.
FEBRUARY 11, 1943.
Petition to vacate decree. Before Judge Franklin. Richmond superior court. August 11, 1942.
Jeff D. Curry, for plaintiff in error.
George Hains, solicitor-general, and W. K. Miller, contra.
1. In a proceeding under the Code, chapter 72-3, to abate as a nuisance a described tourist camp owned by the defendant, on the ground that "said place and its contents" were being knowingly maintained and used by the defendant for the purpose of lewdness, assignation, and prostitution, where the judge by consent trying the case without a jury, found and decreed that all of the buildings in the tourist camp, with the personalty in each, were used by the defendant "as one plant or combine" for the purpose of lewdness and prostitution, the defendant, after an affirmance of such judgment by the Supreme Court, could not obtain a modification of it so as to release one of the buildings and its contents, namely, the store building, by showing that this part of the tourist camp was in no way connected with the alleged nuisance; the original finding and decree as to this matter being conclusive.
2. Where in such final decree it was ordered that the buildings be closed pending further order of the court, that the personal property be removed and sold, and that judgment be rendered against the defendant and in favor of the State for $300, with special lien on the premises as provided by law, the defendant, in paying the $300 and the cost of the proceeding, would comply with the judgment only in part, and would not thereby acquire any right to a release of the realty or personalty from the order of abatement.
3. The Code, § 72-311, providing that the owner of the real estate, on filing a bond and complying with other stated conditions, may obtain a cancellation of the abatement as related to such realty, does not apply to an owner who himself used the property for the purposes condemned by the statute, and against whom as the actual offender the abatement judgment was rendered.
4. The Code, § 72-309, provides for the abatement of both realty and personalty, where both are owned by the same person and the owner is himself the party who maintained the nuisance, and the authority conferred thereby to close "the building or place" is not limited to cases where the personal property is "owned by others than the inmates of said house."
5. It is declared in the Code, § 72-309, that if the nuisance shall be established, the judge may order the effectual closing of the building or place, and that it be kept closed "for a period of one year, unless sooner released." The judgment in this case provided, as to time, only that the buildings shall be closed and not reopened "pending the further order of the court." Held, that if the judge had a discretion, under either the statute or the judgment, to allow the building or buildings opened within less than one year on petition of the defendant, it was not an arbitrary discretion: and before he could properly exercise any discretion in such matter, some new fact or condition materially affecting the public interest should be introduced. No such new fact or condition having been alleged in the defendant's petition, the judge did not err in refusing to entertain it as one addressed to his discretion. The petition did not allege sufficient facts to authorize modification of the judgment in any respect, and the general demurrer thereto was properly sustained.
No. 14370. FEBRUARY 11, 1943.
This is the second appearance of this case. For the former decision see Carpenter v. State, 194 Ga. 395 ( 21 S.E.2d 643).
George Hains, as solicitor-general, filed a petition against Grady L. Carpenter, seeking to abate as a nuisance a described tourist camp owned by the defendant, on the ground that "said place and its contents" were being knowingly maintained and used by the defendant for the purpose of lewdness, assignation, and prostitution. The defendant filed a general demurrer and an answer. The demurrer was overruled, and the defendant excepted pendente lite. After interlocutory proceedings, the parties agreed that all questions of law and fact would be referred to the judge for final decision, jury trial being expressly waived. On April 15, 1942, after hearing evidence, he entered a final decree, in which he stated certain findings of fact and then declared judgment thereon. As to the facts, he found that on "said tract of land is a main building" and "some forty outbuildings immediately adjoining the said main building, and all used in connection therewith, to wit: said forty outbuildings, called tourist cabins, are fitted with electric lights, heat, beds, bedclothing, towels, hot and cold water; some air-conditioned and some not; each and all with an automobile entrance at the side, with door leading therefrom into the cabin itself — all used as one plant or combine in which drinks and food are served, from the liquors and restaurant and kitchen in the main building, to persons, men and women occupying any of said outbuildings — all owned and used by Grady Carpenter, as the last word in an up-to-date lewd house and used and maintained by said Carpenter for the purpose of lewdness and prostitution."
The order further stated: "It is claimed by counsel for Carpenter, that although all of his outfit, main building and outhouses, may have been used as houses of prostitution, that he, Carpenter, is entitled to separate them, and conduct a bar-room, restaurant, and dance-hall in his main building; but the court holds otherwise — that, having combined what might have been a legitimate with his illegitimate business of conducting and maintaining many houses of prostitution, he can not now separate them, and that the whole — all the property so used — falls under the condemnation of the statute and must be abated as a public nuisance." It was then adjudged and decreed, that the restraining order that had been previously entered be made permanent; that the defendant is guilty of carrying on a public nuisance as defined by the Code, §§ 72-301 et seq.; that all of the personal property on the premises is condemned, suppressed, and abated; that the premises are ordered closed, and the personalty removed therefrom; and that the house shall not be opened until further order of the court. It was further ordered that all of the personal property located upon the premises, including furniture, fixtures, liquor, and property of every kind found therein, be sold by the sheriff, and that report of the sale be made to the court for disposition of the proceeds; and judgment for $300 was rendered against the defendant in favor of the State, with special lien on the premises, to be enforced as provided by the Code, § 72-312. Carpenter excepted, assigning error on the overruling of his demurrer and on the final decree. This court held that the judge did not err in overruling the demurrer, but that under the assignments of error no other question was presented. Carpenter v. State, supra.
On July 31, 1942, after the decision by this court, the defendant filed a petition praying that the final decree be vacated and set aside, so far as it affected the property in question, and that he be allowed to use the property for lawful purposes. To this petition the solicitor-general filed a general demurrer, which the court sustained, and the defendant, hereinafter referred to as "petitioner," excepted.
The petition, after stating the history of the case, alleged the following:
Petitioner has never knowingly operated a nuisance on his premises or permitted the same to be done, and he intends in the future to see that no nuisance is operated thereon. As evidence of his good faith he now agrees to enter into an obligation and bond, with solvent surety, in an amount to be fixed by the court, to guarantee that no nuisance will be operated or be permitted to be operated on said premises, and petitioner will be agreeable to any reasonable conditions that may be set out in said obligation and bond. Under the pleadings in the case and under the evidence submitted at the hearing, it was not disputed that petitioner was the owner of all the personalty located on said premises, and it was shown by the evidence that all of said personalty was free and clear of all liens and encumbrances, and that petitioner had a fee-simple title to all of said personalty and said real estate, and no claim has ever been filed to said property other than the claim of title of petitioner. Under these facts, the court had no authority to order the buildings or the real premises closed, or to enjoin the use of said real premises for legal and legitimate purposes, and all parts of the order which directed the closing of said real premises and keeping them closed are illegal and should be vacated.
Petitioner operated a place of business consisting of a storehouse wherein is located his whisky store, a restaurant, and a dance-hall. The nearest cabin is approximately twenty feet from said storehouse, the most distant one is about three hundred feet therefrom, and the store building is a separate and distinct business from the cabins: The court will recall that the evidence in the case showed that the nuisance complained of was committed in one of the forty cabins, and had no connection whatsoever with petitioner's store building in which his whisky store, restaurant, and dance-hall business is carried on.
Petitioner contends that the personal property located in the store building, which consisted of bar fixtures, liquor stock, kitchen equipment, stock in trade, restaurant fixtures, and dance-hall fixtures, were entirely separate and distinct from the alleged nuisance and in no way contributed to the alleged nuisance; and the court under its order of April 15, 1942, was not authorized to enjoin petitioner from the use of this personalty, and was not authorized to order the sale of this personalty, and all parts of the order which enjoined the use of the personalty located in said store building and ordered the sale of said personalty are illegal and should be vacated. The court not only ordered the sale of all personalty located in the store building of petitioner, but also ordered the sale of all personalty located in said tourist cabins.
Petitioner recognizes the right of the court to order the sale of the personalty located in the tourist cabins under its findings in the present case, for the purpose of paying the cost of action and abatement, as provided by section 73-210 of the Georgia Code. Petitioner has paid to the clerk of court of Richmond County, Georgia, all cost of the action and abatement, and there is now no reason or cause to order the sale of the personalty located in said tourist cabins, and all parts of the order of April 15, 1942, with reference to the sale of said personalty, should be vacated.
Under the order of April 15, 1942, a general judgment was rendered against petitioner, in the sum of $300, which was a special lien against the personalty located in said tourist cabins. Petitioner now tenders to the court, upon the filing of this petition, the sum of $300, and upon this tender there is no cause to order the sale of said personal property, and all parts of the order in reference to the sale of said personalty should be vacated.
It was further alleged that in answering the original petition of the solicitor-general the defendant, now petitioner, alleged that if any nuisance existed on said premises, "it was without his knowledge and consent, and that he was willing to abate any nuisance or the operation of any nuisance upon said premises, if any such nuisance did exist, and asked the court that he in good faith be allowed to give bond to operate said premises in a legal and lawful manner, and upon the further condition that if any such nuisance ever should exist, that it be immediately vacated."
The law under which the abatement was sought is found in the Code, chapter 72-3, the parts here material being as follows:
"Whosoever shall knowingly erect, establish, continue, maintain, use, own, or lease any building, structure, or place used for the purpose of lewdness, assignation, or prostitution shall be guilty of maintaining a nuisance, and the building, structure, or place, and the ground itself in or upon which such lewdness, assignation, or prostitution shall be conducted, permitted, or carried on, continued, or shall exist, and the furniture, fixtures, musical instruments, and other contents of such building or structure are also declared to be a nuisance, and may be enjoined and abated as hereinafter provided." § 72-301.
"Whenever a nuisance is kept, maintained, or exists, as defined in the preceding section, the solicitor-general or any citizen of the county may maintain an action in the name of the State upon the relation of such solicitor-general or citizen to perpetually enjoin said nuisance, the person or persons conducting or maintaining the same, and the owner or agent of the building upon which such nuisance exists. . ." § 72-302.
"If the existence of the nuisance shall be established in an action as provided in this chapter, an order of abatement shall be entered as a part of the judgment in the case, which order shall direct the removal from the building or place of all fixtures, furniture, musical instruments, or other movable property used in conducting the nuisance, and shall direct the sale thereof in the manner provided for the sale of chattels under execution: Provided, that if it shall appear to the judge that the furniture and chattels are owned by others than the inmates of said house, he may order the effectual closing of the building or place against its use for any purpose, and keeping it closed for a period of one year, unless sooner released. If any person shall break and enter or use a building, structure, or place so directed to be closed, he shall be punished as for contempt as provided in the preceding section. For removing and selling the movable property, the officer shall be entitled to charge and receive the same fees as he would for levying upon and selling like property on execution, and for closing the premises, and keeping them closed a reasonable sum shall be allowed by the court." § 72-309.
"The proceeds of the sale of the personal property, as provided in the preceding sections, shall be applied in payment of the cost of the action and abatement, and the balance, if any, shall be paid to the defendant." § 72-310.
"If the owner shall appear and pay all cost of the proceedings, and file a bond with sureties to be approved by the clerk in the full value of the property, to be ascertained by the court, or, in vacation, by the clerk, conditioned that he will immediately abate said nuisance and prevent the same from being established or kept within a period of one year thereafter, the court, or in vacation the judge, may, if satisfied of his good faith, order the premises closed under the order of abatement, to be delivered to said owner, and said order of abatement canceled so far as the same may relate to said property; and if the proceedings be an action in equity, and said bond be given and cost therein paid before judgment and order of abatement, the action shall be thereby abated as to said building only. The release of the property under the provisions of this section shall not release it from any judgment lien, penalty or liability to which it may be subject by law." § 72-311.
"Whenever a permanent injunction issues against any person for maintaining a nuisance as herein described, or against any owner of the building knowingly kept or used for the purposes prohibited by this chapter, the judge granting said injunction shall, at the same time, enter up judgment against the person, firm or corporation owning said building in the sum of $300, and said judgment shall be a special lien upon the premises, and the furniture and fixtures therein, complained of, and shall as against said property rank from date with all other judgments or liens as now provided for by law. Said judgment shall issue in the name of the State, and be enforced as other judgments in this State: Provided, that the lien of the judgment herein provided for upon said property, real and personal, used for the purpose of maintaining said nuisance, shall not relieve the person or building from any of the other penalties provided by law. All sums arising from enforcement of the judgments in this section referred to shall be paid into the treasury of the county in which said judgment is rendered and become part of the general funds of said county." § 72-312.
These provisions were codified from the act of 1917, the language, however, being slightly varied in some instances. The caption of the act stated the following, among others, as its purposes: "To declare houses of lewdness, assignation, and prostitution a nuisance; to provide a method of closing such houses by injunction; . . to provide for the abatement of such houses; the sale of personal property found therein; . . for the fees of the officers carrying out the orders of court in such a proceeding; to provide for the release of property by giving bond in such cases; to provide for the assessment of a tax against the property used for lewdness, assignation, or prostitution when the use of such property is enjoined and abated as a nuisance; . . and to repeal all laws in conflict herewith." Ga. L. 1917, pp. 177-181.
The judgment abating the tourist camp applied both to the buildings and to the personal property situated therein. The defendant was also personally enjoined. After the judgment had been reviewed and affirmed by this court, the defendant, who may be sometimes referred to herein as "petitioner," filed a petition praying that it be vacated and set aside so far as the property was concerned; and the exception now is to the sustaining of a general demurrer to such petition. The material allegations of the petition have been set forth in the statement, and will not be restated here except as to the legal contentions presented thereby. For convenient reference, we have also embodied in the statement the relevant provisions of the Code, and have quoted in part the caption of the act of 1917, from which these provisions of law were codified.
1. No question as to sufficiency of the evidence to support the decree is now open for consideration, the judgment having been previously reviewed and affirmed on writ of error, to say nothing of lapse of time and inappropriateness of the present proceeding to question the judgment from that standpoint. Accordingly, the allegations to the effect that the main store building and the personal property situated therein were separate and distinct from the cabins and their furnishings, and were in no way connected with the alleged nuisance which the evidence showed was committed in one of such cabins, did not state any valid reason for setting aside or vacating the judgment. The judge found from the evidence that the store building and the cabins with the personal property in them were all used "as one plant or combine . . as the last word in an up-to-date lewd house and used and maintained by said Carpenter for the purpose of lewdness and prostitution," and this finding must be taken as conclusive in the instant proceeding.
The other questions relate to jurisdiction and discretion, and depend on construction of the statute.
2. Petitioner contends that after he had paid the cost of the proceeding, and had tendered the $300 adjudged against him, the court was no longer authorized to forbid the use of the real estate for legitimate purposes, or to enjoin further use of the personal property, or to require its sale. He insists that on payment or tender of these sums a new right was acquired, and that the court should have modified the former judgment so as to give effect thereto.
Under a proper construction of the statute, such direct payment of cost would not prevent sale of the personalty, nor would payment of the $300 relieve the defendant (petitioner) or his property from any of the other penalties provided by law and included in the judgment.
The petition, however, presented various other contentions, including one as to giving bond; and it seems appropriate at this point to make certain general observations pertinent in a measure to all of the remaining contentions, including the alleged new right.
The reference in section 72-309, supra, to ownership of personalty by others than the "inmates," and the word "owner," as it appears in section 72-311, providing for bond, do not contemplate a situation in which the owner is himself the party who maintained the nuisance, as the owner here was adjudged to have done. The provisions of section 72-311 as to bond are also limited to real estate, while section 72-312 declares that the lien of the judgment for $300 as therein specified "shall not relieve the person or building from any of the other penalties provided by law."
Under sections 72-309 and 72-310, if the owner of the personalty is himself the party who maintained the nuisance, he is not an owner such as is intended by the phrase "owned by others than the inmates" (§ 72-309), and as against him the personal property shall be removed from the building or place where the nuisance was maintained, and shall be sold. In this respect the statute is mandatory, and the defendant must abide the sale and can not prevent it by paying the costs directly. This, however, is only one of the penalties contemplated; for the "building or place" may itself be closed and kept "closed for a period of one year, unless sooner released." Code, § 72-309. Also, the provision in section 72-312 for judgment for the sum of $300 is cumulative, this sum being "a tax against the owner of the building knowingly kept or used for the purposes prohibited by the act, or against the property of one by whom the nuisance is maintained." Williams v. State ex rel. McNulty, 150 Ga. 480, 485 ( 104 S.E. 408). Manifestly the satisfaction of a judgment only in part would not affect the remainder or give a new right to the defendant.
It follows that the petition for modification, so far as based on payment of cost and tender of the $300, was without substance. The decisions in Marietta Chair Co. v. Henderson, 121 Ga. 399 ( 49 S.E. 312, 104 Am. St. R. 156, 2 Ann. Cas. 83), and Swift Co. v. First National Bank of Barnesville, 161 Ga. 543 ( 132 S.E. 99), as to a new right, are inapplicable.
3. Another contention is, that under section 72-311, the petitioner had the right, on proving his good faith, to obtain release of the real estate by giving bond as provided by this section; and that since his petition contained sufficient allegations for this purpose, the judge should have retained it and allowed a hearing thereon. There is no merit in this contention. As we have just stated in the preceding division, section 72-311 does not apply to an owner who himself used the property for the purposes condemned by the statute; and under this interpretation as applied to the facts, the petitioner does not come within the provisions as to bond. Illinois v. Heitler, 257 Ill. App. 141; Illinois v. Marshall, 262 Ill. App. 128; U.S. v. Thomas, 4 F.2d 857; Title Guarantee Trust Co. v. U.S., 50 F.2d 544. These cases seem to be directly in point, and support the view that section 72-311 does not apply to Carpenter in his present situation.
It has been held by this court that knowledge on the part of the owner that the premises were being used, or that the lessee when leasing the premises intended to use the same, for the illegal purposes set forth in the act, is essential in order to subject the owner to the burden of a permanent injunction and the penalty of the fine prescribed. Henson v. Porter, 149 Ga. 83 (2) ( 99 S.E. 118). That decision, however, did not construe section 72-311, and is not contrary to the present ruling as to the meaning of that section. See generally, in this connection, 17 Am. Jur. 110-114, §§ 8, 9, 13; State ex rel. Bailes v. Guardian Realty Co., 237 Ala. 201 ( 186 So. 168, 121 A.L.R. 634, 642, note); Gaskins v. Colorado, 84 Colo. 582 ( 272 P. 662, 63 A.L.R. 693, 698, note); Holmes v. U.S., 269 Fed. 489 (12 A.L.R. 427, 431, note); Grosfield v. U.S., 276 U.S. 494 ( 48 Sup. Ct. 329, 72 L. ed. 670, 59 A.L.R. 620, 624, note).
4. A further contention is that under the facts of the case the judge really exceeded his authority in ordering any of the buildings closed, and for this reason, without more, the judgment should be vacated, as applied to the realty. It is insisted that section 72-309 provides for closing "the building or place" only if "it shall appear to the judge that the furniture and chattels are owned by others than the inmates of said house;" and that since, as appeared on the trial, the personal property was owned by petitioner and not by the inmates, the judge was not authorized to include the real estate in his order of abatement. This, in our opinion, does not represent a proper construction of the statute. In view of the purposes stated in the caption of the original act, and as indicated by the entire statute, section 72-309 clearly provides for abatement of both realty and personalty, with a condition as to personalty only, depending on whether it is owned by other than the inmates. The first part of this section, as to what the judgment shall contain, simply declares in express terms that it shall include direction for removal and sale of the personalty, while the meaning of the proviso is, that although the personal property may be owned by others than the inmates, so that it can not be sold under the abatement judgment, the court may still order the effective closing of the building or place. Compare Lokey v. Davis, 194 Ga. 175 ( 21 S.E.2d 69); Ogletree v. Atkinson, 195 Ga. 32 ( 22 S.E.2d 783).
5. The defendant further contends that the facts alleged by him would have authorized a modification of the order, in the exercise of judicial discretion; and that in this view the judge erred in dismissing the petition on general demurrer instead of hearing evidence and determining therefrom whether he would modify the order in any respect, as prayed. Section 72-309, supra, provides for "the effectual closing of the building or place against its use for any purpose, and keeping it closed for a period of one year, unless sooner released." The judgment as rendered did not provide that the premises should be kept closed for any definite period, but declared merely that they should be closed, and not opened "pending the further order of the court." It is insisted that the judge thus reserved discretion "to reopen said houses at any time," and that he should therefore have considered the petition as an appeal to his discretion instead of dismissing it for insufficiency as a matter of law. As may be noticed, the petition did not seek a modification on the ground that the abatement as adjudged was not limited to one year; but in this respect it was addressed solely to discretion of the trial judge as to whether he would modify the order at this time on the facts appearing, the period of one year not having expired. The petition did not show any cause for relief, even on this theory. If the judge had a discretion, under either the statute or the judgment, to allow the building or buildings reopened within less than one year on petition of the defendant, it was not an arbitrary discretion; and before he could properly exercise any discretion in such matter, some new fact or condition materially affecting the public interest should be introduced. Briesnick v. Briesnick, 100 Ga. 57 ( 28 S.E. 154); Moore v. Kelly Jones Co., 109 Ga. 798 (2) ( 35 S.E. 168); Deering Harvester Co. v. Thompson, 116 Ga. 418 ( 42 S.E. 772); Hurt Building Inc. v. Atlanta Trust Co., 181 Ga. 274 (4), 283 ( 182 S.E. 187); Griffin v. State, 12 Ga. App. 615 (5) ( 77 S.E. 1080).
While the defendant did offer to give bond, this, as we have seen, was not a right which he, as the actual perpetrator, could invoke; and any provision as to bond must be put out of view in the present consideration. In the original answer to the petition of the solicitor-general, before the decree of abatement was rendered, the defendant alleged that if any nuisance existed on the premises, it was without his knowledge and consent, and "asked the court that he, in good faith, be allowed to give bond to operate said premises in a legal and lawful manner, and upon the further condition that if any such nuisance ever should exist, that it be immediately vacated." It follows that his present allegations as to innocence and good faith, and his offer to give bond, do not either separately or collectively constitute any new fact or condition, and hence would not afford basis for a modification of the judgment in the exercise of discretion. Nor was other material change alleged.
It may or may not be that the provision in section 72-309 as to keeping the building or place "closed for a period of one year, unless sooner released," contemplates a "release" only at the instance of an "owner" who is entitled to give bond under section 72-311. Assuming, however, as we have done, that the provision may not be thus restricted, and also that the judgment of abatement as entered reserved discretion as contended, we are of the opinion that the judge did not err in refusing to entertain the instant petition as one addressed to his discretion. Nor was it error to sustain the general demurrer.
Judgment affirmed. All the Justices concur, except Reid, C. J., absent because of illness.