State ex rel. Bailes v. Guardian Realty Co.

• Decision Date: 12 January 1939
• Docket Number: 6 Div. 401.
• Parties: STATE EX REL. BAILES, SOLICITOR, v GUARDIAN REALTY CO. ET AL.
• Court: Alabama Supreme Court

186 So. 168

237 Ala. 201

STATE EX REL. BAILES, SOLICITOR, v GUARDIAN REALTY CO. ET AL.

6 Div. 401.

Supreme Court of Alabama

January 12, 1939

Rehearing Denied Feb. 9, 1939.

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Bill to abate a. public nuisance by the State of Alabama, on the relation of George Lewis Bailes, as Solicitor of the Tenth Judicial Circuit, against the Guardian Realty Company and Mose A. Blumberg. From a decree dismissing the bill complainant appeals.

Reversed and rendered.

Geo Lewis Bailes, Sol., and J. Edw. Thornton, Deputy Sol., both of Birmingham, for appellant.

Wm. S Pritchard and David R. Solomon, both of Birmingham, for appellees.

KNIGHT Justice.

The bill in this cause was filed by the State of Alabama, on relation of George Lewis Bailes, as Solicitor of the Tenth Judicial Circuit of Alabama, to enjoin and abate a public nuisance. The bill was filed under the provisions of Sections 4281-4283 of the Code.

The bill of complaint, as amended, charged that the respondents, Mose A. Blumberg and the Guardian Realty Company, a Corporation, owned, maintained or operated a place or building, known as the Suburban Hotel, in the City of Birmingham, Jefferson County, Alabama. That said place was maintained, or resorted to, for the purpose of gaming, or gambling, and gaming tables, or other gaming devices were kept, maintained, or operated at said hotel for the purpose of permitting persons to game, or gamble thereon, or therewith; that said Suburban Hotel, "as being owned, maintained or operated by the respondents, is provided with bells, wires, signals and other implements or appliances, communicating with the occupants of a room, or rooms, in said hotel, the said occupants using said room or rooms for gaming, or gambling;" that said hotel so owned, maintained or operated by the respondents has bars, locks, or barricades on the door, or doors, which prevent the access of any law enforcement officer to said room or rooms, where gambling, or gaming is carried on; and that said hotel, so owned, maintained or operated by the respondents, has a table or tables, cards, "poker chips," or chips for use in gambling, "whereon and wherewith two or more persons there present have been permitted to, and have gamed or gambled in a room, or rooms, provided with bells, wires, signals, or other implements, or appliances for communicating with the occupants of said room or rooms in said hotel, and said room or rooms have bars, locks or barricades on the doors which prevent access of any law enforcement officer to said room or rooms."

The bill prayed for preliminary writ of injunction against the respondents' permitting the hotel to be used for gambling, and for a mandatory injunction requiring the removal of all unlawful signal devices and barricades on doors to the said room or rooms, and that upon final hearing the injunctions be made perpetual.

The respondent Mose A. Blumberg filed answer to the bill in which he denied the material allegations thereof, which charge the illegal use of the hotel, but admitted he operated the same under a lease from the Guardian Realty Company, the owner, and by way of amendment filed in the cause on the day of final hearing, he averred that, since the filing of his original answer, he had terminated "his interest in the Suburban Hotel and no longer operates the same as a hotel nor for any other purpose." That he had turned the same over to William Montgomery who is now operating the same as a hotel, and holds a lease from the respondent, the Guardian Realty Company. In his answer as originally filed, the respondent Blumberg admitted that he was one of the operators of said hotel.

The respondent Guardian Realty Company filed its answer on July 20, 1938, which was the day of the final hearing. In its answer, this respondent admitted that it was the owner of the premises, but denied all the allegations of the bill charging illegal use of the property, and averred that it was a corporation, whose stockholders and directors were reputable business men in the City of Birmingham, Alabama; that no one of them had ever been arrested or convicted of gambling, or maintaining a gambling house. It is also averred that on July 7, 1937, it rented the premises to W. W. Jackson and M. A. Blumberg; that said lease began on October 1st, 1937, and by its terms ended on September 30, 1938; that said lease contained an express "prohibition against violation or permitting by the lessee of any part of the premises to be used for any immoral, illegal or purpose prohibited by the State, County, City or federal laws;" that neither the respondent, nor any officer, servant, agent or employee ever had any knowledge or notice "that any illegal acts whatsoever, and especially the illegal acts complained of, in the bill, were being committed on the leased premises, until after the filing of the bill in this cause;" that it never participated in, nor connived at any such illegal acts.

It is further averred that on May 26, 1938, before the respondent had any knowledge or notice of any thing averred in the bill, it made, executed and delivered a lease contract to William Montgomery for said premises, to begin on October 1st, 1938. That said William Montgomery was in no way connected with this suit or any party thereto. Upon information and belief this respondent avers that on July 16th, 1938, the said Blumberg sold, transferred and assigned every right, title and interest which he had "or will have" in the leased premises to said William Montgomery, and that said Blumberg has moved off the premises.

On the day of the final hearing, July 20, 1938, the said Guardian Realty Company amended its answer, and in this amendment it is averred: "In addition, all gambling apparatus, of every kind and description, expressly including every article described in the bill of complaint, was removed from said premises, prior to the filing of this amendment; and at the time of said filing, there is not on said premises any gambling apparatus of any kind or description whatsoever. In addition, prior to the taking over by said Montgomery of said premises, which was completely done and executed on said July 16th, 1938, prior to the time of filing this amendment, there was removed from said premises all warning buzzers, signals, and all other devices mentioned in said bill of complaint, and at this time there exists on said premises, no warning apparatus of any kind whatsoever."

When the bill was filed, it was presented to Judge Thompson, the Presiding Judge of the said court, he set the same down for hearing on July 12th, 1938, on application for temporary injunction, and ordered that notice be given to, and a copy of the bill be served on, each of the respondents. For some reason the hearing on application was not had.

On July 20, 1938, the cause came on for hearing for final decree, all parties being present or represented by counsel, and the court, on submission for final decree, entered a decree denying the relief prayed for in the bill, and dismissed the bill of complaint.

In its opinion, accompanying the decree denying relief, the court refused injunctive relief as to the respondent Blumberg upon the theory that the nuisance had, in legal effect, been abated, and that as to this respondent, "it would be a futile gesture to grant an injunction for the reason that as to him it would be a moot question, and injunctions operate, in personam, not on a straw man."

As to the said Guardian Realty Company and the officers thereof, the court was of the opinion that it was necessary for the state to show that the owner had knowledge or notice of the illegal use of its premises by the tenant before it could be enjoined. That, inasmuch as the evidence failed to show such knowledge or notice, the state was not entitled to the relief prayed for as to this respondent.

As to both the above stated propositions, the court below was in error, as we shall undertake to demonstrate.

The bill was clearly sufficient in averment to invoke the jurisdiction of the court to abate the nuisance charged against the respondents.

The evidence shows, beyond any sort of doubt, real or imaginary, that the building in question was maintained, and resorted to for gambling purposes as averred in the bill; that it was equipped with bells, wires, signals, and other implements or appliances for communicating with the occupants of the gambling rooms, and that these rooms were provided with such locked doors as to prevent access of officers of the law to said rooms where the gambling was carried on; and, finally, that gambling was in fact engaged in in said building from time to time.

The evidence is without dispute that Blumberg, the tenant, had the general reputation of being a professional gambler, and this evidence, when considered along with other evidence in the case, supports the conclusion that the owner was chargeable with notice of the character of the use of the building, but we prefer to rest the result on the ground that the law requires no such notice.

Section 4281 provides: "All places maintained or resorted to for the purpose of gaming, and all places where gaming tables or other gaming devices are kept for the purpose of permitting persons to game thereon or therewith, are declared to be common nuisance and may be abated by writ of injunction issued out of a court of equity upon a bill filed in the name of the state by the attorney-general or any solicitor or prosecuting attorney ***."

Section 4283 provides: "When it shall be made known to any solicitor who prosecutes criminal cases in the county by the chief of police, sheriff or other officer, or by any reputable citizen, that any hotel, tavern, inn,...