Carpenter v. State ex rel. Hains

• Decision Date: 11 February 1943
• Docket Number: 14370.
• Citation: 24 S.E.2d 404,195 Ga. 434
• Parties: CARPENTER v. STATE ex rel. HAINS, Solicitor General.
• Court: Georgia Supreme Court

24 S.E.2d 404

195 Ga. 434

CARPENTER v. STATE ex rel. HAINS, Solicitor General.

No. 14370.

Supreme Court of Georgia

February 11, 1943

Syllabus by the Court.

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 re-opened '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.

This is the second appearance of this case. For the former decision, see Carpenter v. State ex rel. Hains, 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 out-buildings 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, bed clothing, 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 out houses, 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 maintainig many houses of prostitution, he cannot 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 ex rel. Hains, 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 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 store house, wherein is located his whisky store, a restaurant, and a dance hall. The nearest cabin is approximately twenty feet from said store house, 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.

Petition 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...