Carson v. State ex rel. Price, s. 23040-23042
| Decision Date | 14 September 1965 |
| Docket Number | 23044,Nos. 23040-23042,s. 23040-23042 |
| Citation | 221 Ga. 299,144 S.E.2d 384 |
| Parties | Lionel Douglas CARSON, Jr., et al. v. STATE of Georgia ex rel. E. E. PRICE. Carlton BAXTER v. STATE of Georgia ex rel. E. E. PRICE. Carlton BAXTER v. STATE of Georgia ex rel. P. M. BROWN. Lionel Douglas CARSON, Sr., et al. v. STATE of Georgia ex rel. P. M. BROWN. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The petitions stated causes of action for the abatement of public nuisances.
2. The search warrants were issued without a showing of probable cause, and hence the evidence obtained upon the searches was inadmissible. There being no other evidence to support the injunctions, they were improperly granted.
Sam Johnson, Glennville, for plaintiffs in error.
No appearance for defendants in error.
Two petitions charging that gambling was being carried on in certain establishments and seeking its abatement as public nuisances resulted in the assignments of error here. In each case demurrers of the defendants were overruled and injunctive relief was granted. The two petitions, filed in the Superior Court of Long County, are the same except for the defendants named, the business establishments involved, and the citizens on whose behalf the proceedings were brought.
In cases numbered 23040 and 23041 the petition was filed by the solicitor general upon the relation of E. E. Price. In substance its allegations are those which follow. The defendant Carlton Baxter is the owner of 'The Diner,' the premises complained of, and the defendant Mrs. Lionel D. Carson, Sr., is its lessee, manager and operator. She, through herself, her agents and employees, on a named date and immediately prior thereto maintained a gaming house there and permitted persons to come together and gemble in specified particulars. The defendant Lionel Douglas Carson, Jr., who resides in a trailer located in the rear of the premises, and the defendants John Jackson Cape, W. H. Mallard and Porter Gary Stack, who are employees of the business, did play and bet for money and other things of value at said establishment. This gambling and maintaining of a gambling house is in violation of Code §§ 26-6401 and 26-6404 and should be abated as a public nuisance. The establishment is located on a Federal highway, and its operation is known locally by the citizens of that county and by the tourists who travel the highway. There is no adequate remedy at law of its abatement, and it will not cease unless its operations are restrained by this court. The petition prayed, in addition to process and general relief, that each of the defendants, their agents, servants, employees and associates, be temporarily and permanently enjoined and restrained from operating, carrying on and maintaining said business directly or indirectly, and that it, as operated by the defendants, be permanently abated as a public nuisance.
In cases numbered 23042 and 23044 P. M. Brown is the relator. The petition in those cases alleges that the defendant Carlton Baxter is the owner of 'The Pink House Restaurant'; that the defendant Lionel Douglas Carson, Sr., is its lessee, manager and operator; that the defendants Seymour Robert Klien, Clyde Tyson and Jackie Earl Knippenburg are its employees; that the defendant Carson, Sr., through himself, his agents and employees maintains a gaming house there; and that the defendants Klien, Tyson and Knippenburg gamble in it. The other allegations and the prayers are the same as those in the petition in cases numbered 23040 and 23041.
To each of the petitions the defendant Baxter alone filed a general demurrer and also an answer denying all allegations except his ownership of the real estate and buildings involved. To each petition the other defendants interposed a joint general demurrer and joint answer making the same response as did Baxter.
By agreement the two cases were consolidated for the interlocutory hearing which ensued.
Upon conclusion of the evidence the trial judge overruled all of the general demurrers, impounded certain evidence for future use, and granted injunctions. He enjoined all defendants, except Baxter, and all persons holding by, under, and through such defendants from operating or conducting gambling or any other illegal business at the establishments referred to in the petitions or elsewhere in that judicial circuit. He enjoined Baxter from operating or conducting any illegal business or illegal enterprise on such premises, from leasing or renting them for any illegal or immoral enterprise, and from leasing or renting them until and unless he makes diligent investigation and inquiry as to the purpose of their use and is satisfied that they will not be used for any illegal or immoral purpose.
All defendants assign error upon the overruling of their demurrers. They also assign error upon the grant of the injunctions, asserting in several grounds the overall contention that such injunctions were based solely upon evidence obtained by illegal search warrants and therefore were without evidence to support them. Error is also assigned upon the ground that the written orders were at variance with oral orders given previously.
1. Each of the petitions, as we evaluate them, sets forth a cause of action against all of the defendants named therein.
They allege the operation and management by the lessees of gaming houses and gambling in them by named employees of the lessees. The allegations are sufficient to show gaming houses as public nuisances, abatable by petitions brought by the solicitor general upon the relation of citizens. Code § 72-202; Gullatt v. State ex rel. Collins, 160 Ga. 538(3), 150 S.E. 825; Lee v. Hayes, 215 Ga. 330(1), 110 S.E.2d 624.
Insofar as the defendant Baxter was concerned, allegations of guilty knowledge by him of the illegal use of the premises was not necessary here where the petitions do not seek padlocking of the premises for all purposes but only abatement of the gambling carried on there. In this situation Baxter is a proper party because of his ownership. He, like those actually conducting the illegal businesses, may be enjoined so as to prevent their continuance. See in this connection, Henson v. Porter, 149 Ga. 83(2), 99 S.E. 118; Ogletree v. Atkinson, 195 Ga. 32(3), 22 S.E.2d 783; Baskin v. Meadors, 196 Ga. 802, 27 S.E.2d 696.
For these reasons all of the demurrers were properly overruled.
2. We come now to the...
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