State ex rel. Andrews v. Chateau X, Inc.

• Citation: 296 N.C. 251,250 S.E.2d 603
• Decision Date: 04 January 1979
• Docket Number: No. 23,23
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina ex rel. William H. ANDREWS, District Attorney for the Fourth District of North Carolina v. CHATEAU X, INC., a South Carolina Corporation, et al.

Page 603

250 S.E.2d 603

296 N.C. 251

STATE of North Carolina ex rel. William H. ANDREWS, District Attorney for the Fourth District of North Carolina v. CHATEAU X, INC., a South Carolina Corporation, et al.

No. 23.

Supreme Court of North Carolina.

Jan. 4, 1979.

Atty. Gen. Rufus L. Edmisten by Senior Deputy Atty. Gen. Andrew A. Vanore, Jr., Asst. Atty. Gen. Marvin Schiller and I. Beverly Lake, Jr., Raleigh, for the State.

Bailey & Raynor by Edward G. Bailey and Frank W. Erwin, Jacksonville, Arthur M. Schwartz, P. C. by Neil Ayervais, Denver, Colo., for defendants.

COPELAND, Justice.

This case concerns the statutory construction and constitutionality of Chapter 19 of North Carolina General Statutes. For the reasons set out below, we have determined that Chapter 19 as interpreted and applied in this case is constitutional; therefore, the judgment of the trial court is affirmed.

Both parties in this action have brought up assignments of error to this Court. The State is challenging certain interpretations and applications of Chapter 19 by the court below. As the resolution of these issues affects the defendants' constitutional questions, we will consider the State's assignments of error on cross-appeal first.

The core of the controversy in this case stems from that part of the trial court's order that enjoins the defendants from selling or showing obscene matter that is not listed on the inventory. This portion of the order states:

"2. The defendants . . . are hereby enjoined and restrained from:

d. Possessing for exhibition to the public illegal, lewd matter consisting of films which appeals to the prurient interest in sex without serious literary, artistic, educational, political or scientific value and that depicts or shows:

(1) Persons engaging in sodomy, per os, or per anum,

(2) Enlarged exhibits of the genitals of male and female persons during acts of sexual intercourse, or

(3) Persons engaging in masturbation.

e. Possessing for sale and in selling illegal lewd matter which constitutes a principal or substantial part of the stock in trade at a place of business consisting of magazines, books, and papers which appeal to the prurient interest in sex without serious literary, artistic, educational, political, or scientific value and that depicts or shows:

(1) Persons engaged in sodomy, per os, or per anum,

(2) Enlarged exhibits of the genitals of male and female persons during acts of sexual intercourse, or

(3) Persons engaging in masturbation."

The State contests two aspects of the above injunction. Both of them contain the argument that the judge did not go far enough.

The State first claims the trial court erred by enjoining films and publications showing only "enlarged" exhibits of the genitals during sexual intercourse. It argues that the court was required to prohibit the sale of matter depicting any genitals, enlarged or not, because of the mandates of G.S. 19-5, which reads in part: "If the existence of a nuisance is admitted or established . . . an order of abatement Shall be entered as part of the judgment in the case." (Emphasis supplied.) Apparently the State is contending that once a business has been established as a nuisance, the judge is required to enjoin the future distribution of any and all obscene matter as defined by G.S. 19-1.1(2). ¹ We do not agree.

The trial judge necessarily must be given some discretion in formulating his abatement order. The defendants will be subject to contempt of court if they violate the injunction; therefore, it is necessary that they be put on notice as to exactly what material they can and cannot show or sell in the future. See generally D. DOBBS, REMEDIES § 2.4 (1973); Developments in the Law-Injunctions, 78 Harv.L.Rev. 994, 1064 (1965). A judge has a Duty to supply this specificity. Rule 65(d) of the North Carolina Rules of Civil Procedure states that "(e)very order granting an injunction . . . shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts enjoined."

The Legislature must have intended for judges to have some discretion in abating nuisances. "(L)egislative intent is usually ascertained not only from the phraseology of the statute but also from the nature and purpose of the act and the consequences which would follow its construction one way or the other." In re Hardy, 294 N.C. 90, 97, 240 S.E.2d 367, 372 (1978). (Emphasis deleted.)

Chapter 19 as applied to obscene matter treads near the area of free speech. The sanctions for disobeying an abatement order could be severe. This Court need not decide today whether a judge must always issue a general injunction, such as this one, against selling or exhibiting obscene matter not actually before the court. See D. Dobbs, supra at § 2.11 note 22. We do hold, however, that if such an order does issue, the trial court has some discretion to define what conduct is prohibited as long as it falls within constitutional and statutory mandates, and he has the duty to specifically warn the defendant of the prohibited conduct. This assignment of error is overruled.

The State next argues that the trial court's order was erroneous because it enjoined the defendants from selling obscene matter only when such material "constitute a principal or substantial part of (their) stock in trade." It contends that the judge was required to restrain the defendants from selling any lewd matter at all, whether or not it made up a large part of defendants' inventory.

A careful reading of the statute refutes this argument. As the State points out, G.S. 19-1.2 ² defines nuisances in terms of businesses that regularly display or sell lewd material and the obscene matter itself. However, G.S. 19-1.2(5) states that a lewd publication is a nuisance only when " possessed at a place which is a nuisance." In order for a bookstore to be a nuisance, the lewd publications must "constitute a principal or substantial part of the stock in trade."

Thus, not every isolated obscene publication is a nuisance that can be abated under G.S. 19-5. First it must be found that the book or magazine is one of many, such that all together they make up a large part of the bookstore's inventory. Once this initial determination is made, however, each individual obscene publication is a nuisance, and any and every one of them can be abated. This assignment of error is overruled.

The trial court determined that a part of G.S. 19-5, stating that the judge's final order "may also require the effectual closing of the place against its use thereafter for the purpose of conducting any such nuisance," authorizes the complete closing of a theater or bookstore once it has been declared a nuisance under Chapter 19. It held that portion ineffectual in nuisance actions dealing with obscene matter because such a closing would be an unconstitutional prior restraint on free speech. The State concedes in its brief and in its argument before this Court that any complete closing of a business for past sales of obscene material would constitute illegal prior restraint. We agree. See Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971). Other states have so held. See, e. g., Sanders v. State, 231 Ga. 608, 203 S.E.2d 153 (1974); State v. A Motion Picture Entitled "The Bet," 219 Kan. 64, 547 P.2d 760 (1976); Gulf States Theatres of Louisiana, Inc. v. Richardson, 287 So.2d 480 (La.1973).

The State contends, however, that the trial court erred in interpreting G.S. 19-5 as authorizing such a complete closing. That issue is not properly before the Court at this time. This interpretation of the statute was not excepted to by the State, and it also was not included in its grouping of exceptions and assignments of error in the record on appeal.

Under Rule 10 of the Rules of Appellate Procedure, "the scope of review on appeal is confined to a consideration of those exceptions set out and made the basis of assignments of error in the record on appeal." This mandate is subject to various exceptions, none of which are relevant here. The State is as much bound by these Rules as other parties before the courts of this State. Thus, we do not now decide whether G.S. 19-5 does authorize a judge to completely close a business after it has been declared a nuisance because of past exhibitions or sales of obscene material.

We turn now to defendants' assignments of error. At the outset, it is important to note what issues are not before this Court. The trial judge found all the items listed in the inventory, totaling over five hundred different films and magazines, to be legally obscene. Defendants do not contest this finding. Furthermore, from a cursory examination of some of that matter, suffice it to say that it is, in the words of Chief Justice Burger, "offensive to the point of being nauseous." Kaplan v. California, 413 U.S. 115, 117, 93 S.Ct. 2680, 2683, 37 L.Ed.2d 492, 496 (1973). Thus, we are dealing here not with borderline obscenity but rather with patently hard-core pornography.

Secondly, the defendants do not object to that provision of the court's order restraining them from selling or exhibiting the material before the court. In essence, then the defendants are attacking only the statute itself and that portion of the final order enjoining them from selling or showing obscene matter not before the court. We now turn to these contentions.

Defendants first assert the trial court erred in denying their motion to dismiss the State's complaint before trial. Although it is somewhat unclear, apparently they argue that Chapter 19 of North Carolina General Statutes is unconstitutional on its face, thereby invalidating any action taken pursuant to it.

The defendants contend that the act in question is unconstitutional Per se in two respects. First, they assert G.S. 19-5 authorizes the complete closing of a business in violation of the first amendment...