State v. Barron

• Decision Date: 05 November 1932
• Docket Number: 30546.
• Parties: STATE ex rel. ADAMS, County Attorney, et al. v. BARRON et al. [*]
• Court: Kansas Supreme Court

15 P.2d 456

136 Kan. 324

STATE ex rel. ADAMS, County Attorney, et al. v. BARRON et al. ^[*]

No. 30546.

Supreme Court of Kansas

November 5, 1932

Syllabus by the Court.

"Public nuisance" or "common nuisance" is such inconvenience or troublesome offense as annoys whole community in general.

In proceeding to enjoin violation of criminal statute because constituting public or common nuisance, such condition must be shown either by finding of fact or by legal implication (Rev. St. 1923, 60--1121).

Generally equity will not enjoin as nuisances violations of criminal laws, unless there is no adequate remedy at law.

In action to enjoin operation of theater on Sundays in violation of statute, evidence held to support findings negativing existence of common nuisance (Rev. St. 1923, 21--952 21--955, 60--1121).

Injunction against operation of theater on Sundays in violation of criminal statutes held properly denied, in absence of showing that state was without adequate remedy at law (Rev. St. 1923 21--952, 21--955, 60-- 1121).

Ordinance attempting to define words used in criminal statute held ineffectual, where Supreme Court had placed construction on same statute.

1. A public or common nuisance is such an inconvenience or troublesome offense as annoys the whole community in general and not merely some particular person; the test being in the possibility of annoyance to the public by the invasion of its rights.

2. Where the violation of a criminal statute is sought to be enjoined because the continued persistent and intentional violation constitutes a public or common nuisance, such condition must be shown to exist either by a finding of fact or by legal implication, in cases other than where it is so declared by statute, and in the instant case the finding and conclusion of the trial court is affirmed with regard to the allegations and proof failing to establish the fact of a common nuisance and failing to justify a conclusion of the existence of a common nuisance by legal implication, also in failing to sustain the allegation that the state had no adequate remedy at law.

3. Aside from cases involving common nuisances made so by statute, courts of equity will not ordinarily enjoin acts which are violations of law, punishable as crimes, unless there is no adequate remedy at law.

4. A city ordinance passed through referendum or otherwise attempting to define a word used, but not defined in a criminal statute, where the court of last resort in the state had already and previously placed a construction on the statute as to the same subject-matter covered by the ordinance, is ineffectual.

Appeal from District Court, Sedgwick County, Division No. 3; Grover Pierpont, Judge.

Action by the State, on the relation of George L. Adams, County Attorney of Sedgwick County, and another, against Meta S Barron and another. From a judgment in favor of the defendants, the relators appeal.

JOHNSTON, C. J., dissenting.

Roland Boynton, Atty. Gen., R. O. Mason, Asst. Atty. Gen., and Geo. L. Adams, Co. Atty., of Wichita, for appellants.

Robert C. Foulston, George Siefkin, Sidney L. Foulston, Lester L. Morris, George B. Powers, C. T. Smith, and C. H. Morris, all of Wichita, for appellees.

HUTCHISON J.

This is an action brought by the state of Kansas, on relation of the Attorney General and the county attorney of Sedgwick county, in the district court of Sedgwick county, to enjoin the defendants from operating a certain talking and moving picture theater in Wichita on Sundays, which they are alleged to have operated continuously on Sundays for more than a year last past in violation of the Sunday labor and Sunday sales statutes (R. S. 21--952 and 21--955); it being further alleged that the theater for this reason has become a common nuisance and that the application is made to a court of equity because there is no adequate remedy at law. It was and is contended by the state that the operation of the theater openly, publicly, repeatedly, continuously, persistently, and intentionally in violation of the Sunday laws is a public or common nuisance, and may be enjoined in an action brought by the state. The trial court made findings of fact, and concluded that the state was not entitled to an injunction, from which ruling the state has appealed.

Evidence was introduced particularly as to the violation on Sunday, August 2, 1931, in substance, as follows: That Charles H. Barron was the owner and that Meta S. Barron was the manager in charge of the theater paying the help; that it was open that day from 2 p. m. until 11 p. m., and persons entering paid 20 cents at the window and entered without tickets being issued; that Meta S. Barron was present and helped, and employees sold admissions at the window, ushered visitants to their seats, and operated the film machine; that in front was a sign stating, "Open today," and giving the name of the attraction; that it had also been open on previous Sundays. These matters were included in the findings of the trial court, and also the following additional findings were made:

"The theater was at all times operated in an orderly manner. No disturbance was reported in the crowds attending. No one was allowed in the aisles, but persons could only enter as there were vacant seats.

"No evidence has been offered of a criminal complaint and warrant for violation of the Sunday laws. No arrest has been made and consequently there has not been a trial on that issue.

"No evidence is here offered of immoral or unmoral conduct either on the part of the theater operators or those attending. No injury has been shown to the health of anyone, to anyone's property or comfort, and no interference with the free use of the streets or highways. ***

"There is no evidence of damage to any person or to the public in general.

"No evidence of a common nuisance is shown other than an allegation that alleged violation of a Sunday law is such a nuisance."

There is no contention in this appeal that the findings of fact are contrary to or are not supported by the evidence. This therefore presents the question whether the violation of a criminal statute makes the thing done in connection therewith a public or common nuisance, and particularly does the violation of the Sunday laws of this state in the operation of a theater make the theater a common nuisance, without the intermingling or accompaniment of any of the usual elements which are generally found closely associated with common or public nuisances, the presence of which elements is specifically negatived in these findings. The right of the state to maintain this action is based upon R. S. 60--1121, authorizing the granting of an injunction against a common nuisance in the following language: "*** an injunction may be granted in the name of the state to enjoin and suppress the keeping and maintaining of a common nuisance."

Definitions of a common or public nuisance as given in Bouvier's Law Dictionary and Words and Phrases (First, Second and Third Series, Public or Common Nuisance) have been by this court accepted and quoted with approval in the case of State v. Coler, 75 Kan. 424, 89 P. 693, as follows:

"'A public or common nuisance is such an inconvenience or troublesome offense as annoys the whole community in general, and not merely some particular person. It produces no special injury to one more than another of the people.' ***

"'A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence. The test as to whether a nuisance is a public nuisance or not is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights."' Page 427 of 75 Kan., 89 P. 693, 694.

No case has been cited by the appellant where an injunction has been granted to prevent the doing of something merely because of the violation of a criminal statute. In all of the cases cited the thing complained of was either made a nuisance by statute or some of the usual troublesome, annoying, or injurious elements were found to exist and accompany the violation.

Three of the seven cases cited by the appellant, namely, State v. Crawford, 28 Kan. 726, 42 Am.Rep. 182, State v Rabinowitz, 85 Kan. 841, 118 P. 1040, 39 L.R.A. (N. S.) 187, and Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205, are actions for injunction against violations of the Kansas liquor law, where the statute (R. S. 21--2130) declares all places where liquor is sold or kept for sale to be common nuisances, and the injunction statute is applicable without any further showing or finding. One other of the cases cited, State v. Coler, supra, was for the violation of a criminal statute (R. S. 21--933) by maintaining a bawdy house or brothel, and this court in that case held that the demurrer to the petition for injunction should have been overruled because "the petition is not lacking in a revolting detail of facts, which the demurrer...