Chase v. Proprietors of Revere House

• Decision Date: 01 February 1919
• Citation: 122 N.E. 162,232 Mass. 88
• Parties: CHASE v. PROPRIETORS OF REVERE HOUSE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

232 Mass. 88

122 N.E. 162

CHASE

v.PROPRIETORS OF REVERE HOUSE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 1, 1919.

Report from Superior Court, Suffolk, County; John P. Brown, Judge.

Bill of Jason F. Chase against the Proprietors of the Revere House and others. On report for determination by the Supreme Judicial Court of the questions of law appearing in the record, no conclusion on the merits having been reached, and with reservation. Case ordered to stand for final disposition by the trial court.

John W. Rorke, of Boston, for plaintiff.

F. W. Fosdick and G. S. Harvey, both of Boston, for defendant Harrison.

Nathan Matthews and Philip Nichols, both of Boston, for other defendants.

Nathan Matthews, of Boston, amici curiae on behalf of Hotel Somerset Co., and others owning or leasing hotel property in city of Boston.

BRALEY, J.

The presiding judge, after hearing the parties at great length, came to no conclusion on the merits but reported for our determination the questions of law appearing in the record, with the reservation, that if his rulings were correct and the bill can be maintained, ‘my findings of fact are to be completed in accordance with the opinion of the full court * * * without further hearings or proceedings of any kind, and I am at once to order a final decree.’ The material question is whether St. 1914, c. 624, entitled ‘An act to provide for abating places of prostitution and certain other nuisances,’ is constitutional. The first section declares that, ‘Every building, part of a building, tenement or place used for prostitution, assignation or lewdness, and every place within which or upon which acts of prostitution, assignation or lewdness are held or occur, shall be deemed a nuisance,’ and under section 2, ‘Whoever keeps of maintains such a nuisance shall be punished by a fine of not less than one hundred nor more than one thousand dollars, and by imprisonment for not less than three months nor more than three years.’ While at common law gambling was not unlawful (Reg. v. Ashton, 1 E. & B. 286), common gaming houses as well as bawdyhouses were nuisances (Com. v. Goodall, 165 Mass. 588, 43 N. E. 520; King v. Dixon, 10 Mod. 335). And these sections, in substance, are re-enactments in part of Rev. Laws, c. 101, §§ 6, 7, which have been the law of this commonwealthsince St. 1855, c. 405, §§ 1, 2, the constitutionality of which has been settled by numerous decisions. See among other cases Com. v. Howe, 13 Gray, 26;Com. v. Edds, 14 Gray, 406;Com. v. Lambert, 12 Allen, 177;Com. v. Warren, 161 Mass. 281, 37 N. E. 172;Com. v. Baldwin, 213 Mass. 238, 100 N. E. 358. But even if the keeping or maintaining of such nuisance is made punishable as a crime, the bill is brought under the further provisions of the statute which read as follows:

‘See. 3. Whenever there is reason to believe that such a nuisance is kept or maintained or exists in any city or town, either the district attorney for the district in which the nuisance is believed to exist, or the Attorney General, in the name of the commonwealth, or one or more citizens in his or their own names, may maintain a bill in equity perpetually to enjoin the person or persons conducting or maintaining the same, and the owner, lessee or agent of the building or place in or upon which such nuisance exists and their assignees from directly or indirectly maintaining or permitting such nuisance.

‘Sec. 4. The bill of complaint shall join the owner of record of the premises as a party respondent and shall be filed in the superior court for the county in which the nuisance is believed to exist, and shall be verified by oath of the complainant unless filed by the Attorney General or a district attorney. The bill shall forthwith after filing be presented to the court sitting in equity within the county, or to any judge of the court if the court is not sitting in equity within the county, or in vacation, and the proceeding shall have precedence over all other matters upon the docket except criminal proceedings, election contests and hearing upon petitions for other injunctions.

‘Sec. 5. If upon a hearing, after at least two days' notice to the respondents of the time and place assigned for such hearing, the existence of such a nuisance is shown to the satisfaction of the court or judge, either through verified complaint or through evidence in the form of affidavits, depositions, oral testimony or otherwise, a temporary injunction shall be ordered to issue forthwith restraining the maintenance of the nuisance and enjoining the occupants, owner and all other persons from removing fixtures, furniture, musical instruments and all movable property from the premises until further order of the court.

‘Sec. 6. If, upon subsequent hearing in due course of equity procedure, the existence of the nuisance shall be established, a decree permanently enjoining the maintenance thereof shall be entered, and, as a part of such decree, shall be entered an order of abatement directing the sheriff of the county or his deputy to enter the building or place where the nuisance has been maintained and to sell all furniture, musical instruments and movable property used in conducting and maintaining the nuisance, in the manner provided for the sale of chattels under execution, and to remove the same or cause the same to be immediately removed. If it shall appear that the bill of complaint was filed five or more days after notice to the record owner of the premises, and that the owner did not proceed forthwith to enforce his rights under the provisions of section ten of chapter one hundred and one of the Revised Laws, as amended by section thirteen of this act, such order of abatement shall further direct the effectual closing of the building or place and the prohibition of its use for any purpose for a period of one year, unless sooner released as provided in section eight. For the purpose of proving the existence of the nuisance the general reputation of the place shall be admissible as evidence.

‘Sec. 7. For removing and selling the movable property in accordance with the decree of the court the officer shall be entitled to charge and receive as fees the amounts which he would receive 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. The proceeds of the sale of the personal property by order of the court shall be applied: First, to the fees and costs of removal and sale; second, to the allowances and costs of so closing and keeping closed the building or place; third, to the payment of the complainant's costs in such proceeding, including a reasonable attorney's fee to be fixed by the court; fourth, the balance, if any, to the owner of the property sold.

‘Sec. 8. If the owner of any such building or place shall appear and pay all costs of the proceedings, and shall file a bond with sureties approved by the clerk in the full value as ascertained by the court, or in vacation by the clerk, conditioned that the owner of the building, part of the building, tenement or place found to be a nuisance will immediately abate such nuisance and prevent the same from being established or kept therein within a period of one year thereafter, the court or judge may, if satisfied of the owner's good faith, order the premises so closed under the order of abatement to be delivered to the owner of the real estate and the order of abatement to be so modified as to dissolve the order that the building remain closed for one year: Provided, however, that such release shall not be held to release such property from any judgment, lien, penalty or liability to which it may be subject by law.’

The jurisdiction of a court of equity over the abatement and suppression of a nuisance whether public or private is settled, and may be exercised although the nuisance is made by statute an indictable offense. Rowe v. Granite Bridge Corporation, 21 Pick. 344;Fall River Iron Works v. Old Colony & Fall River Railroad, 5 Allen, 221;Cadigan v. Brown, 120 Mass. 493;State v. Ryder, 126 Minn. 95, 147 N. W. 953;Coosaw Mining Co. v. South Carolina, 144 U. S. 550, 12 Sup. Ct. 689, 36 L. Ed. 537; Crowder v. Tinkler, 19 Ves. Jr. 617.

If the nuisance is detrimental to the public the proceedings may be instituted not only ‘in the name of the commonwealth’ by the Attorney General, or the district attorney for the district in which the nuisance is alleged to exist, but any citizen, as the statute in question provides, may be authorized by the Legislature to initiate and maintain the suit. Atty. Gen. v. Jamaica Pond Aqueduct Co., 133 Mass. 361, 363, 364;Carleton v. Rugg, 149 Mass. 550, 22 N. E. 55,5 L. R. A. 193, 14 Am. St. Rep. 446. The defendants did not demur but answered to the merits, and while the bill does not contain such an allegation, yet if the judge found as he was warranted in finding, that the notice described in the report had been served on the record owners ‘five or more days' before the bill was filed, and that notwithstanding the notice the corporation had not taken any steps against the tenant as provided in Rev. Laws, c. 101, § 10, as amended by St. 1914, c. 624, § 13, the mandatory provisions as to the decree found in section 6 would become applicable.

The bill having stated a case in accordance with the jurisdictional requirements of the statute, the burden of proof required in civil cases rested on the plaintiff to establish the essential allegations to the satisfaction of the trial court. We shall consider the remaining grounds on which the constitutionality of the statute is assailed in the order of their presentation by counsel.

The argument is strongly pressed that the statute is not applicable to ‘an ordinary hotel used primarily for the accommodation of guests and strangers and operated under a duly issued innholder'slicense.’ And the judge has found that the real estate,...