State, ex rel. English v. Fanning
| Decision Date | 12 November 1914 |
| Docket Number | 17,670 |
| Citation | 149 N.W. 413,97 Neb. 224 |
| Parties | STATE, EX REL. JAMES P. ENGLISH, COUNTY ATTORNEY, APPELLEE, v. CHARLES E. FANNING ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
Rehearing of case reported in 96 Neb. 123. Former judgment vacated, and judgment of district court reversed.
REVERSED.
ROSE, J., not sitting.
On the former hearing in this case we found that the portion of the decree "which enjoins Fanning and Prenica from using the premises for the purpose of lewdness, assignation or prostitution is not appealed from, and is therefore final," and that the "defendants make no complaint of the findings and decree so far as it finds that unlawful practices were indulged in and enjoins the continuance of the same in the future." 96 Neb. 123, 147 N.W. 215. The record is large and somewhat complicated, but upon further consideration we think it ought to be considered that the appeal has brought up the whole case for consideration.
The defendants strenuously contend that the statute under which these proceedings are brought (laws 1911, ch. 63) is unconstitutional and void. Upon the former hearing it was practically conceded that section 8 of the act (Rev. St. sec 8782) is unconstitutional, and it was so considered accordingly. Very soon after our former decision the supreme court of Minnesota, in State v. Ryder, 126 Minn. 95, 147 N.W. 953, had occasion to consider the constitutionality of a very similar statute. The discussion in that case covers all objections raised in the case at bar, unless it is the one which will be herein separately considered. The discussion by the Minnesota court of the constitutionality of their statute corresponding to our section 8 is quite full and complete, several authorities being cited, and the court concludes that the statute is constitutional and valid. The reasoning seems satisfactory, but it is not necessary now to decide as to the constitutionality of section 8 of our act, and we content ourselves with withdrawing what was said upon that point in the former decision of this case.
As we have already said, the opinion of the Minnesota court in the case above cited, and the opinion in State v. New England F. & C. Co., 126 Minn. 78, 147 N.W. 951, decided at the same time by that court, seem to satisfactorily dispose of all questions as to the constitutionality of such legislation, except one which is perhaps peculiar to our statute.
Section 5 of the act (Rev. St. sec. 8779) provides: "If the existence of the nuisance be established in an action as provided in this act, or in a criminal proceeding, an order of abatement shall be entered as a part of the judgment in the case, which order shall direct the removal from the building or place of all fixtures, furniture, musical instruments or movable property used in conducting the nuisance, and shall direct the sale thereof in the manner provided for the sale of chattels under execution, and effectual closing of the building or place against its use for the purpose, and so keeping it closed for a period of one year, unless sooner released." Section 8783 (208) Rev. St. 1913, is as follows: "Every house, building, tent, boat, wagon or other vehicle, or any other structure, situated in this state, used and occupied as a house or place of ill fame or for purposes of prostitution, shall be held and deemed a public nuisance; and any person owning, or having the control of, as guardian, lessee or otherwise, such house, building, tent, boat, wagon or other vehicle, or any other structure, and knowingly leasing or subletting the same, in whole or in part, for the purpose of keeping therein a house or place of ill fame, or knowingly permitting the same to be used or occupied for such purpose, or using or occupying the same for such purpose, shall for every such offense be fined in any sum not exceeding one hundred dollars, or be imprisoned in the county jail not to exceed three months." This was section 210 of the criminal code prior to the revision of 1913, as amended by ch. 173, laws 1907. The amendment included other buildings and structures than those named in the original act and increased the penalty. It is insisted that the act under which this prosecution was brought is unconstitutional because it amended sections 8783 (208) and 8845 (270) Rev. St. 1913. It would seem that section 5 of the act, by the words "or in a criminal proceeding," attempts to amend section 210 of the criminal code (Rev. St. 1913, sec. 8783 (208)) by adding an additional penalty upon conviction under that section. If this should be considered as an amendment to that section within the meaning of section 11, art. III of the constitution, it would not necessarily render the whole act invalid, since those words are separable from the act and may be omitted without affecting the remainder of the act.
Except as herein noted, we are satisfied with our former conclusion as to the constitutionality of the act. This requires us to consider whether the evidence justifies the finding that the building in question is used for the purpose of lewdness assignation, or prostitution, within the meaning of the act. It is entitled "An act to enjoin and abate houses of lewdness, assignation and prostitution, to declare the same to be nuisances," etc. Laws 1911, ch. 63. Section 3 of the...
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