People ex rel. Dougherty v. Yarowsky, 50.
| Decision Date | 04 October 1926 |
| Docket Number | No. 50.,50. |
| Citation | 210 N.W. 246,236 Mich. 169 |
| Parties | PEOPLE ex rel. DOUGHERTY, Atty. Gen., v. YAROWSKY et al. In re SMITH. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Certiorari to Circuit Court, Wayne County; Samuel G. Houghton, Judge.
Proceeding by the People, on the relation of Andrew Dougherty, as Attorney General, against Charles Yarowsky and others, in which a decree was rendered against defendant Grace Smith. On an order to show cause why she should not be punished as for contempt for violating decree, she was adjudged guilty and given a prison sentence, and she brings certiorari. Affirmed.
Argued before the Entire Bench.Fleming, Baird & Morden, of Detroit, for appellant.
Andrew B. Dougherty, Atty. Gen., and Harry N. Deyo, Asst. Atty. Gen., for appellee.
A chancery proceeding was begun in the Wayne circuit court by the Attorney General, under Act 272 of the Laws of 1915, against certain premises situate in the city of Detroit, known as 1912 Second avenue, claiming a nuisance was maintained therein by reason of its being a house of prostitution, and praying for its abatement. Charles and Jennie Yarowsky, the owners of the premises, and Grace Smith, who operated the place, were made parties defendant in the suit. A hearing in the circuit court resulted in a finding that said premises were used for such purposes, and they were declared to be a nuisance. A decree was made, ordering the premises padlocked for one year, and ordering the furniture sold, unless a bond was given by the owners agreeable to the statute. The decree also provided that:
‘By virtue of the authority therein vested doth hereby order, adjudge, and decree that the said Grace Smith, otherwise known as Grace McIntyre, and her servants, agents, or employees, be and they are hereby restrained from conducting, maintaining, operating, or leasing said permises above described, or any part thereof, or any other premises within this judicial circuit, for the purpose of lewdness, assignation, or prostitution, or for the use of prostitutes or other disorderly persons.’
Later, upon a showing that Grace Smith had violated the decree by conducting a similar place within the jurisdiction of the court, at 2708 Brush street, an order to show cause why she should not be punished as for contempt was issued and served upon her, and after a hearing the court adjudged her guilty of contempt and gave her a prison sentence. She reviews the proceedings by certiorari and raises several questions.
It is urged that the contempt to which defendant was obligated to answer was a criminal proceeding, and that, inasmuch as she was not present in court when the testimony of the witnesses was taken, the proceedings are invalid. At the original hearing, at which the nuisance was established and the injunctive features were issued, Grace Smith was present by her attorneys. The record appears to be silent as to whether she was personally present. A copy of the decree was served upon her before the service of the order to show cause. The mere fact that it was served upon her while under arrest would not invalidate the service, because a decree is not process. Parks v. Bryant, 132 Ala. 224, 31 So. 593. She was therefore fully informed of the provisions of the decree. She was afterwards served with a notice to show cause why she should not be punished as for a contempt. She did not appear at the date named to show cause, but the hearing was adjourned at the request of her attorney. She did not appear on the adjourned day. Under these circumstances we think she has had her day in court.
Much time has been given in defendant's brief to the question whether the contempt was a civil or criminal proceeding. It was neither wholly one nor the other. It partook of both, civil and criminal. That part of the decree ordering a padlocking of the house was probably remedial, and therefore civil. That part enjoining the defendant from doing certain things was personal. It is not always easy to distinguish whether these proceedings are civil or criminal. The test is well stated in...
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Contempt of Dougherty, In re
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