State ex rel. Woodbury County Anti-Saloon League v. Clark

• Decision Date: 06 July 1920
• Docket Number: 33379
• Parties: STATE OF IOWA ex rel. WOODBURY COUNTY ANTI-SALOON LEAGUE, Appellant, v. T. G. CLARK et al., Appellees
• Court: Iowa Supreme Court

178 N.W. 419

189 Iowa 492

STATE OF IOWA ex rel. WOODBURY COUNTY ANTI-SALOON LEAGUE, Appellant, v. T. G. CLARK et al., Appellees

No. 33379

Supreme Court of Iowa, Des Moines

July 6, 1920

Appeal from Woodbury District Court.--W. G. SEARS, Judge.

ACTION in equity to enjoin premises alleged to have been a house of prostitution, and to assess a tax against the property. The Clarks are alleged to have been maintaining the place. During the trial, Carter was substituted for Healy, as the real owner of the property. There was a decree for plaintiff as to the Clarks, but the court denied plaintiff's application to close the building and to impose the tax, under the so-called "Red Light Law." The State appeals.--Reversed.

Reversed and remanded.

John F Joseph, for appellant.

Jepson & Struble, for appellee.

PRESTON J. WEAVER, C. J., EVANS and SALINGER, JJ., concur.

OPINION

PRESTON, J.

The Clarks did not appear, and their default was entered. The trial court found that prostitution had been carried on in the premises by the Clarks, and that they were a nuisance; ordered the nuisance abated, and the furniture sold. The court refused to order the building closed for a year, and refused to assess the $ 300 tax. From such refusal the plaintiff has appealed. These are the questions argued, and more particularly the question as to imposing the tax on the property. The ground of the trial court's refusal to assess the tax was that plaintiff had not shown that the owner had knowledge of the nuisance. No constitutional questions were raised in the district court, nor are they argued here by appellee, nor does he cite any cases. Constitutional questions are, therefore, not involved. State v. Ross, 186 Iowa 802, 173 N.W. 66. Some of the cases hereinafter cited deal with due process and other constitutional questions.

The evidence is undisputed. It appears that special agents for the state were working in Sioux City, and, on December 4, 1918, visited the place in question. Farrand testifies that, after he had sent Mavros ahead of them, he and Van Wagoner followed, and found Mavros in the bedroom with Mrs. Clark, who was dressed in a kimono, or bath robe, and stockings; that, in another bedroom, they found a girl who had on only a shirt, or gauze vest, and a man who did not live there, in his shirt sleeves; that he had given Mavros three $ 1.00 bills, of which he had taken the numbers; that Mavros had given the money to Mrs. Clark, and it was found in a dresser drawer; that the whereabouts of the Clarks were not known at the time of the trial; that Mrs. Clark told witness that she had been renting out rooms for prostitution, and that she got a dollar for each room, and that she rented rooms to parties who sometimes occupied rooms but for a short time, but not over night; that the girl in the other room made affidavit that she had been there several times. At this point, defendant Healy objected to trying the case on affidavits, and the court sustained the objection; but there was no motion to strike out the evidence already given. Later, at the close of the testimony of this witness, Healy moved to strike out the testimony of the witness with reference to what others than the defendant Mrs. Clark said, as being hearsay, which was overruled. Healy has not appealed. Mr. Clark was a man 55 or 60 years of age, and the woman was 40 or 45. It was a 5 or 6-room house. It was well furnished,--better than the average home. Mavros says he was at the place alone, about a week before the transaction in question; that another state agent had a report on the house, and wanted him to investigate. He gives the conversation with Mrs. Clark at his first visit as follows:

"When I first got in, she asked me how I knew the place, and I said a friend of mine told me. She says: 'I don't know you, but I guess you're all right. You came here, I suppose, to see the girls?' and I said, 'Yes.' She says, 'I haven't got any in now, but how do I look to you?' I said, 'You look pretty good;' and she said, 'Would you like to spend $ 3?' and I said, 'Maybe I will come another time. I have some friends, and we will come up some evening, if you can get some girls;' and she says, 'I can do that.' Then I fixed a date two or three days after that,--two days after the time I was talking to her. I was so busy that I didn't go up; didn't get a chance to go at that time; but I telephoned her; asked her if she had the girls; and she said, 'Yes,' and I said, 'If I get a chance, I will come up this evening;' and she told me, 'At any time you get a girl from down town, I charge $ 1.50 for the use of the room.'"

He testifies that, on December 4th, he and the others planned in the county attorney's office for him to go first to the house, and the others would follow. He describes the transaction as follows:

"I went up and into the house. All the rest of the boys were pretty close,--about a block away. When I got into the house, she says, 'You came back?' and I said, 'Yes.' She said, 'Why didn't you come that night?' and I said, 'I couldn't make it, because I was busy.' She said, 'The girls are not here right now, but if you wish, you can spend $ 3 with me.' Then I heard some talking in another room, and I asked who it was, and she said it was a couple, a man and a girl. I said, 'What are they doing?' She told me they were having a good time, having rented a room. She said, 'Do you wish to go into the bedroom and spend $ 3?' and I said, 'All right.' We went into the bedroom and undressed. Of course, I expected the boys any minute. She undressed, and took the money, and was lying on the bed; and, just about the time she lay on the bed, there was a knock on the door. Mr. Farrand knocked on the door, and she said, 'I would like to know who it is,' and I said, 'You go and see,' and she opened the door, and the boys came in. Before she went to the door, she put on a nice kimono. The boys found the other couple there at the same time. I had given her the three $ 1.00 bills, of which we had taken the numbers. There was a little dresser in the room, and she put it in one of the little drawers. I had only taken my overcoat off. Yes, I helped arrest the people. I worked with the boys. Clark was there at the time, in the other room, in the kitchen. I did not see him until the boys came in. Yes, I saw him when I first came in. He was in the parlor, and walked to the kitchen, and I asked, 'Who is that?' and she said, 'It is my husband,' and I said, 'I am afraid, if it is your husband,' and she said that she would take care of him; that he knows it."

Van Wagoner's testimony is similar to Farrand's, except that he says that the girl in the other bedroom was sitting on the bed, with her underwear on, and a man was standing in front of her, with his coat and collar and vest off. All were placed under arrest. This is the substance of the testimony. No evidence was given as to the reputation of the place, and there is no direct evidence that Carter had knowledge that the nuisance was being maintained therein. Defendant Carter was the only witness on behalf of the defendant. He says that Healy used to own a half interest in the property, and that he, Carter, owns all of it now, under a contract, though it stands in Healy's name; that he rented the place to Clark on September 15th, and that they have been there ever since; that they were in the place, so far as witness knows, until the "Red Light" case was filed; that the man who rented the place was a man 25 to 35 years old; that he does not know whether he was a son of the others or not--thinks so; that he had known him before, and his name was Clark; that he did not know these Clarks personally, only that that was their name; that the rent was $ 18 a month.

Though testifying as a witness, he does not state that he had no knowledge that the Clarks were maintaining a house of prostitution, the three months they were occupying it. It is not shown whether he lives close to the property or distant. The evidence is ample to sustain the finding as to the Clarks. The declarations of Mrs. Clark, as testified to by the State's witnesses, and undisputed, were competent, as bearing upon the character of the place. State v. Toombs, 79 Iowa 741, 45 N.W. 300. Proof of one act is sufficient. Shideler v. Tribe of the Sioux, 158 Iowa 417, 423, 139 N.W. 897, and cases cited. Though the evidence in this case shows but one transaction, it does not follow that that was the only act. It is a proper inference from the circumstances that the business was being carried on there. The statutes bearing upon the two questions presented are found in the Supplemental Supplement to the Code, 1915, Sections 4944-h1 to 4944-h11.

1. We shall take up first the question as to whether the court should have decreed an abatement of the nuisance by closing the building. No personal judgment is asked against the owner in this respect, but that the nuisance be abated by closing the building. Section 4944-h1 declares houses of prostitution and the equipment thereof a nuisance, and that they shall be enjoined and abated, as provided in later provisions of the act. Section 4944-h2 provides for the procedure in proceedings for injunction, and that, when such nuisance exists, an action in equity may be maintained to perpetually enjoin said nuisance, the person or persons conducting or maintaining the same, and the owner or agent of the building or grounds, from further permitting such building or ground, or both, to be so used. It provides for notice of the action. Such notice was given the defendant owner in this case. Section 4944-h3 provides that evidence of the general reputation of the place shall be competent for the purpose of proving the existence of said nuisance, and shall be prima...