State ex rel. Wayne County Prosecuting Atty. v. Levenburg

• Decision Date: 03 July 1979
• Docket Number: 12,Docket Nos. 59796,60478,Nos. 11,s. 11
• Citation: 280 N.W.2d 810,406 Mich. 455
• Parties: STATE of Michigan ex rel. WAYNE COUNTY PROSECUTING ATTORNEY, Plaintiff- Appellant, v. Harry LEVENBURG and Anderson's Gardens, Inc., a Michigan Corporation, Defendants-Appellees, and Albert Provin, Defendant. STATE of Michigan ex rel. WAYNE COUNTY PROSECUTING ATTORNEY, Plaintiff- Appellant, v. George RICHMOND and Evelyn Richmond, Defendants-Appellees. Calendar406 Mich. 455, 280 N.W.2d 810
• Court: Michigan Supreme Court

Page 810

280 N.W.2d 810

STATE of Michigan ex rel. WAYNE COUNTY PROSECUTING ATTORNEY, Plaintiff- Appellant, v. Harry LEVENBURG and Anderson's Gardens, Inc., a Michigan

Corporation, Defendants-Appellees,

and

Albert Provin, Defendant.

STATE of Michigan ex rel. WAYNE COUNTY PROSECUTING ATTORNEY, Plaintiff- Appellant, v. George RICHMOND and Evelyn Richmond, Defendants-Appellees.

Docket Nos. 59796, 60478.

Calendar Nos. 11, 12.

406 Mich. 455, 280 N.W.2d 810

Supreme Court of Michigan.

Argued Oct. 5, 1978.

Decided July 3, 1979.

William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Appeals, Maura D. Corrigan, Asst. Pros. Atty., Detroit, for plaintiff-appellant in both cases.

Abba I. Friedman, Hyman, Gurwin, Nachman, Friedman & Winkelman, Jack Schon, Grant, Schon, Wise & Grant, Southfield, for defendants-appellees in 59756.

Norman H. Tendler, Allen & Tendler, Southfield, for defendants-appellees in 60478; Norman L. Zemke, Southfield, co-counsel.

RYAN, Justice (To reverse).

We granted leave in these consolidated cases to decide whether proof that numerous instances of accosting and soliciting for purposes of prostitution occurred at certain places is sufficient to sustain a finding that such places constitute a public nuisance subject to abatement under M.C.L. § 600.3801; M.S.A. § 27A.3801 (hereafter, abatement act). We hold that it is and reverse the Court of Appeals. ¹

The pertinent facts of these proceedings can be found in Justice Kavanagh's opinion. We write separately because we do not agree with his analysis of the law applicable to these cases.

Justice Kavanagh finds that this Court's recent decision, State ex rel. Wayne County Prosecutor v. Diversified Theatrical Corp., 396 Mich. 244, 240 N.W.2d 460 (1976), strictly limits the application of the abatement act to houses of prostitution, assignation or lewdness where sexual acts are committed. We do not agree, and read that decision as standing solely for the proposition that motion picture theatres may not be enjoined from showing obscene films under the abatement act.

M.C.L. § 600.3801; M.S.A. § 27A.3801 provides in pertinent part:

"Any building, vehicle, boat, aircraft Or place used for the purpose of lewdness, assignation or prostitution or gambling, Or used by, or kept for the use of Prostitutes or other disorderly persons, * * * is hereby declared a nuisance and * * * shall be enjoined and abated as hereinafter provided, and as provided in the court rules. Any person, or his servant, agent or employee who shall own, lease, conduct or maintain any building, vehicle or place used for any of the purposes or by any of the persons above set forth or where any of the acts above enumerated are conducted, permitted or carried on, is guilty of a nuisance." (Emphasis supplied.)

The difficulty in interpreting the meaning of the statutory phrase, "lewdness, assignation or prostitution" as used in this act, and determining its applicability to the facts before us, stems from dictum in Diversified which states that this statute " * * * was intended to apply to houses of prostitution * * * " ² and that lewdness and assignation are both synonymous with prostitution. ³ We do not accept this dictum as controlling these cases.

Diversified involved an attempt to apply the abatement act to motion picture theatres showing obscene films. The opinion held that the statute was not intended to apply to motion picture theatres where sexual acts are not committed but are portrayed on the screen. In reaching that decision, the Court reviewed decisions of other jurisdictions involving apparently similar statutes to determine whether "obscenity" fell within the purview of the statutory phrase "lewdness, assignation or prostitution", and found it did not. In the course of its review, which appears to have focused primarily on whether obscenity is lewdness, the Court quoted an Illinois appellate court decision which stated that lewdness could not be equated with obscenity, but must be synonymous with prostitution, when the former term was found in a statute prohibiting the use of premises for the purpose of lewdness, assignation or prostitution. In addition, the Illinois court stated, after noting other possible, innocent definitions of assignation, that this term also was synonymous with prostitution. ⁴

We find that, in order to determine whether instances of accosting and soliciting for purposes of prostitution constitute prohibited conduct under M.C.L. § 600.3801; M.S.A. § 27A.3801, we must focus on the meaning of the statutory term "assignation", rather than focusing on the term "lewdness" as Justice Kavanagh does, and determine whether assignation is synonymous with the statutory term "prostitution".

In seeking to determine the definition of the statutory term "assignation", we note the this Court has long recognized that the primary rule governing the interpretation of statutes is to ascertain and give effect to the intention of the Legislature and that in this process, "effect must be given, if possible, to every word, sentence, and section". Grand Rapids v. Crocker,219 Mich. 178, 182, 189 N.W. 221 (1922). Consequently, if the term "assignation" has a meaning distinct from the term "prostitution", we must give effect to that meaning in order to effectuate the Legislature's intention in enacting this statute. ⁵

Assignation is not statutorily defined, and a review of Michigan case law has disclosed no precedent which has finally and authoritatively defined that term. We read the definition of this term found in Diversified as dictum and hold it does not control the instant cases which do not involve the showing of obscene films but do involve conduct substantially connected with prostitution.

Because we find no statutory definition or controlling judicial definition of this term, we comply with the legislative directive to construe words used in statutes according to common and approved usage, ⁶ and look to the common meaning of the term "assignation" to resolve the question before us.

Webster's Third New International Dictionary Unabridged (1966 ed.) p. 132, defines assignation as "an appointment of time and place for a meeting (especially) for illicit sexual relations".

The Random House Dictionary of the English Language: The Unabridged Edition (1969 ed.) p. 90, defines the term as "an appointment for a meeting, (especially) a lover's secret rendezvous; a lover's tryst".

Finally, the term "assignation" is given the following definition in 6A C.J.S. Assignation, p. 582:

"The word is defined as meaning an appointment of time and place for meeting or interview; used chiefly of love interviews and now commonly in a bad sense."

Consistent with these definitions, we find that the term assignation as used in the abatement act encompasses instances of accosting and soliciting for purposes of prostitution because such instances involve the making of an appointment for the purpose of prostitution. ⁷ We find that limiting this definition to the making of an appointment For the purpose of prostitution is consistent with the apparent legislative intent to eliminate the use of property in connection with prostitution; avoids prohibiting innocent conduct which is of the nature of assignation; and is consistent with the rule of Noscitur a sociis. ⁸

The judgment of the Court of Appeals is reversed and the decision of the trial court reinstated in each of these cases.

WILLIAMS, FITZGERALD and COLEMAN, JJ., concur.

MOODY, J., did not participate.

KAVANAGH, Justice (for affirmance).

The question in these consolidated cases is whether proof that soliciting and accosting occurred on the premises is sufficient to regulate a place as a public nuisance under the "red light abatement act", M.C.L. § 600.3801; M.S.A. § 27A.3801. ¹ The trial court in each case held that it is, and the Court of Appeals reversed. We affirm the Court of Appeals.

Each cause was commenced upon a complaint filed by the Wayne County Prosecutor's office. A lengthy trial was held in Levenburg. There was testimony that prostitutes frequented Anderson's Gardens, a bar located in the City of Detroit, and solicited sexual acts to be performed elsewhere. The trial court made findings of fact that within thirty days prior to the filing of the complaint, soliciting and accosting had occurred on the premises. The court also found that during the period from January 1, 1971 to July 1, 1974, over 160 arrests for soliciting and accosting on the premises were made. Based on these findings, the trial court found Anderson's Gardens to be a place used by prostitutes and used for the purpose of assignation, and thus subject to abatement under the statute. The court permanently enjoined the defendants from permitting the bar to be used for the purpose of assignation.

On appeal, the Court of Appeals reversed. The trial court's interpretation of " 'assignation' as including the making of an appointment for purposes of prostitution, and thus including the act of soliciting for prostitution" was held to be erroneous. 75 Mich.App. 90, 93, 254 N.W.2d 797, 799 (1977). Relying on this Court's opinion in State ex rel. Wayne County Prosecutor v. Diversified Theatrical Corp., 396 Mich. 244 240 N.W.2d 460 (1976), the Court held that the premises must be a house of prostitution in order for the abatement act to be applied properly, and a bar wherein no sexual acts for profit occur is not such a place.

Richmond involves an appeal from the trial court's denial of defendant's motion for summary judgment. The defendant argued in support of the motion that the Willis Show Bar, holder of a Class C liquor license, is not a "house of prostitution" as the term was used in Diversified, supra. The trial court rejected the argument, finding the act applicable to places where acts of soliciting and accosting occur. A majority of the Court of Appeals reversed, holding "(t)he Willis Show Bar is not a house of...