King v. Commonwealth

• Decision Date: 07 March 1922
• Citation: 238 S.W. 373,194 Ky. 143
• Parties: KING v. COMMONWEALTH EX REL. SMITH, COMMONWEALTH ATTY.
• Court: Kentucky Court of Appeals

238 S.W. 373

194 Ky. 143

KING v. COMMONWEALTH EX REL. SMITH, COMMONWEALTH ATTY.

Court of Appeals of Kentucky.

March 7, 1922

Appeal from Circuit Court, Daviess County.

Abatement proceedings by the Commonwealth on the relation of C. E Smith, Commonwealth Attorney, Sixth Judicial District against J. D. King. From a judgment of abatement perpetually enjoining defendant and imposing a lien on the property for attorney's fees and costs, defendant appeals. Affirmed.

Floyd J. Laswell, of Owensboro, for appellant.

H. A Birkhead, of Owensboro, Chas. I. Dawson, Atty. Gen., and Thomas B. McGregor, Asst. Atty. Gen., for appellee.

SAMPSON J.

This is an equitable proceeding instituted in the Daviess circuit court by the commonwealth on relation of C. E. Smith, commonwealth attorney for the Sixth judicial district under chapter 61, Acts 1918, now sections 3941m1 to 3941m11, Carroll's Kentucky Statutes, 1922 Edition, to enjoin and abate a house of lewdness, assignation, and prostitution, and to enjoin and restrain appellant, King, and Jessie Westerfield from maintaining and operating said house. The action was instituted on February 1, 1919, which was Saturday, but the process was not executed on that day, and the defendants, King and Westerfield, learning of the proceeding, hastily moved all the furniture and fixtures from the house, which is designated as 120 Mulberry street, Owensboro, and she fled the country. At the previous September term of the Daviess circuit court, the defendant Jessie Westerfield was indicted for setting up, maintaining, and conducting a common nuisance by having and keeping a bawdyhouse. On January 7, 1919, the case came on for trial, and defendant Jessie Westerfield pleaded guilty to the charge in the indictment, and was fined the sum of $50 and costs. Immediately following this conviction she returned to her place of business, and continued to conduct the nuisance. The property belonged to the defendant J. D. King. It is charged in the petition that he rented it to her about 10 months previous to the bringing of this action for the purpose of carrying on a bawdyhouse, and that she placed in the house musical instruments and such furniture and paraphernalia as is commonly employed in such business, and began to and thereafter maintained in the said house a nuisance by inviting and permitting lewd men and women to congregate in and at said place for immoral purposes, and that this was with the knowledge and consent of the defendant King, who participated in some manner in the profits arising therefrom.

By this action the commonwealth attorney sought a temporary injunction to abate the nuisance, and gave notice in writing to the defendants that he would, on a certain day, apply for a permanent injunction, perpetually enjoining and restraining the defendants, and each of them, from having, keeping, or maintaining the aforesaid nuisance. On proper showing the temporary injunction was granted. On the 21st day of February the defendant J. D. King filed his answer, by which he controverted some of the averments of the petition, but admitted most of the material ones. Affirmatively he pleaded that immediately after the filing of this action he, in good faith, abated the nuisance by causing the occupants of the house to vacate and to remove all furniture from the house; that said house, at the time of the filing of the answer, was unoccupied, and had not been occupied by any person since the 1st of February. In other words, he admitted that the nuisance, of which complaint was made, was conducted in the house, and in the way and manner charged in the petition, until after the filing of this suit and the making of the motion for injunction. However, he insists that as the nuisance was abated before judgment no order awarding a permanent injunction against appellant should have been entered. On final hearing, after due preparation of the case by both sides, the chancellor granted a perpetual injunction against both defendants, and, as all the personal property had been removed from the house, the court adjudged a lien on the real property described in the petition for the security and payment of an attorney fee of $200 adjudged to the attorney for the plaintiff and costs of the action, and from this latter order this appeal is prosecuted by King.

Appellant contends that the judgment should be reversed (1) because the act under which this proceeding was instituted and prosecuted was and is unconstitutional and void; (2) because the court erred in granting an injunction after the nuisance had been abated. The first and second sections of the act read:

"That whoever shall erect, establish, continue, maintain, use, own, occupy, lease or sublease any building, erection, or place used for the purpose of lewdness, assignation, or prostitution in the commonwealth of Kentucky shall be guilty of a nuisance, and the building, erection, or place, and the ground itself in or upon which such lewdness, assignation, or prostitution is conducted, permitted, or carried on, continued, or exists, and the furniture, fixtures, and musical instruments therein, and all other contents thereof are declared a nuisance, and shall be enjoined and abated as hereinafter provided.

Sec. 2. That whenever a nuisance is kept, maintained, or exists as defined in this act the commonwealth attorney or county attorney, or any citizen of the county wherein such nuisance exists, may maintain an action in equity in the name of the commonwealth of Kentucky, upon the relation of such attorney or citizen, to perpetually enjoin said nuisance, the person or persons conducting or maintaining the same, and the owner or agent of the building or ground upon which nuisance exists. In such action the court, or a judge in vacation, shall, upon the presentation of a petition therefor alleging that the nuisance complained of exists, grant a temporary injunction without bond, if the existence of such nuisance be made to appear to the satisfaction of the court or judge by evidence in the form of affidavit, depositions, oral testimony, or otherwise, as the complainant may elect. Three days' notice, in writing, shall be given the defendant of the hearing of the application. When an injunction has been granted it shall be binding on the defendant throughout the commonwealth of Kentucky, and any violation of the provisions of injunction herein provided shall be a contempt as hereinafter provided."

The eleventh section of the act is as follows:

"If any person be convicted in any court of this state, of keeping or maintaining a bawdy or disorderly house or house of ill fame, or house of assignation, the county attorney or prosecuting attorney of such court, in which such conviction shall have occurred, shall, or any citizen of the state may, institute injunction proceedings against such person in a court of equity, as provided in this act and the said judgment of conviction shall be warrant for the court of equity issuing an injunction as provided therein against said person and the property unlawfully used as provided herein."

King insists that the act contravenes the seventh section of the Constitution of Kentucky guaranteeing the defendant in criminal cases trial by jury, and also violates subsections 1, 4, 22, and 29 of section 59 of our fundamental law.

Our Constitution, section 7, says:

"The ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject to such modifications as may be authorized by this Constitution."

Many other state Constitutions contain like or similar provisions. In a purely equitable proceeding as is this the defendant is not now and never has been entitled to trial by jury, and the constitutional provision copied above was not intended to apply to actions cognizable only in equity. It only guaranteed to the defendant a jury trial in cases in which anciently, he was so entitled. As the defendant was not anciently entitled to trial by jury in cases where the relief sought was purely equitable, as in this case, the seventh constitutional provision relied upon has no application. It is argued, however, that this is not an equitable proceeding purely, but only so by legislative enactment; that it is in the nature of a criminal prosecution, which is merely a legal proceeding or common-law action. It will be observed that the act under which this proceeding was instituted does not provide penalties for the offense of carrying on or maintaining a nuisance. The act only provides for the abatement of an established nuisance such as the one carried on by appellants in Owensboro at the time of the commencement of this action. It was intended to cover cases where the facts are as they were in the instant case. The legal remedy ordinarily invoked in such cases--indictment of the maintainer of the nuisance--proved wholly inadequate. The defendant Jessie Westerfield was duly indicted for the offense. When the case was called for trial she appeared and pleaded guilty to the charge in the indictment, was fined, and while the record does not show it, no doubt she immediately paid or replevied the same, for she returned to her place of business and continued to conduct it to the annoyance and aggravation of the public in general living in that part of the city. It, therefore, plainly appears that the legal remedy invoked by the commonwealth attorney in the name of the state was inadequate, and that the equitable arm of the court was necessary to...