State v. Ellis

• Decision Date: 14 February 1918
• Docket Number: 3 Div. 319
• Citation: 201 Ala. 295,78 So. 71
• Parties: STATE v. ELLIS.
• Court: Alabama Supreme Court

78 So. 71

201 Ala. 295

STATE v. ELLIS.

3 Div. 319

Supreme Court of Alabama

February 14, 1918

Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.

Suit by the State against Bessie Ellis to restrain a nuisance. From a decree of the circuit court sustaining a demurrer to the bill for want of equity and dissolving the writ of injunction, the State appeals. Reversed, rendered, and remanded.

W.L Martin, Atty. Gen., and L.E. Brown, Asst. Atty. Gen., for the State.

Goodwyn & McIntyre, of Montgomery, for appellee.

SOMERVILLE J.

On the state's application for reinstatement of the temporary injunction in this cause pending appeal, the following opinion was rendered by Mr. Justice Gardner, at chambers:

"The bill charges the respondent with maintaining a public nuisance in the city of Montgomery on certain premises on a named street therein, in that the respondent is using the building on such premises for the purpose of a bawdyhouse, a house of prostitution, or a house of ill fame. The bill was amended by the addition of the fifth paragraph alleging that such houses were the source of venereal infection and disease and are a menace to the health of the community. There were also averments as to the large number of troops ordered to be incamped near the city of Montgomery for training purposes, and other such averments in reference thereto which need no specific mention. The bill was not answered, and there, therefore, being no denial of its averments, they must be considered as confessed. The only question, therefore, relates to the equity of the bill. 'It is settled law that a house of ill fame or bawdyhouse is a public nuisance.' Tedescki v. Berger, 150 Ala. 649 [43 So. 960, 11 L.R.A. (N.S.) 1060]. 'A bawdyhouse or house of prostitution is a nuisance per se. *** The jurisdiction of a court of equity to entertain a bill to abate a nuisance is too well settled in our jurisprudence to admit of question.' Barnett v. Tedescki, 154 Ala. 474 , also Joyce on Law of Nuisance, sec 391. 'In regard to public nuisances the jurisdiction of courts of equity seems to be of a very ancient date, and has been distinctly traced back to the reign of Queen Elizabeth. In cases of public nuisances, properly so called, an indictment lies to abate them and punish the offenders, but an information also lies in equity to redress the grievance by way of injunction.' 2 Story's Eq.Jur. 921-923. Some of the underlying reasons for this rule are found stated in section 924 in the above volume of Story on Equity Jurisprudence. 'A court of equity has jurisdiction to restrain existing or threatened public nuisances by injunction at the suit of the Attorney General in England and at the suit of the state or the people of the municipality or some proper office representing the commonwealth in this country.' 4 Pom.Eq.Jur. (3d Ed.) 1349. The right of the state to abate a public nuisance by proceedings in equity was recognized by this court in State v. Mayor and Aldermen of Mobile, 5 Port. 279 , and has never been departed from by any subsequent decision. 'Houses of prostitution are public places. They are places to which all men may resort without invitation, and any houses maintained for the indulgence of vice, and to which all men may resort day or night for indulgence therein, is a public place. These houses are common or public nuisances, their maintenance directly tends to corrupt and debase public morals, to promote vice, and to encourage dissolute and idle habits; and the suppression of nuisances of this character and having this tendency is one of the important duties of the government.' Pon v. Wittman, 147 Cal. 280 [81 P 984, 2 L.R.A. (N.S.) 683].

"A very interesting case involving the right of the state for the welfare of its citizens to injunctive relief against a public exhibit which would tend to degrade the morals of the people and which was in violation of the laws of the state, and a public nuisance, is that of State ex rel. Crow v. Canty, by the Supreme Court of Missouri, found cited in [207 Mo. 439 105 S.W. 1078, 15 L.R.A. (N.S.) 747, 123 Am.St.Rep. 393] 13 Ann.Cas. p. 787. It was there held that the state could properly enjoin the exhibition of a bull fight, near the city of St. Louis, calculated to injure and destroy the public morals or to disturb the public peace. Numerous cases are cited in note to that authority in support of same. Among them is Commonwealth v. McGovern, from the Supreme Court of Kentucky found in [116 Ky. 212, 75 S.W. 261] 66 L.R.A. 280, where it was held that the state could enjoin an exhibition of a 'prize fight.' The court, among other things, said: 'If a court of equity has the power to enjoin the use of private property as a nuisance, which is dangerous to the public health, why may it not in like manner enjoin it where it constitutes a nuisance dangerous to the public safety or morals. *** It may be justified upon the higher ground that the morals and safety of the public are involved and that the public good is of the first consideration.'

"The following cases relate to injunctions against the operation of bawdyhouses: Edison v. Ramsey 92 S.E. 513; Brindle v. Copeland 89 S.E. 332; State ex rel. Dow v. Nichols 145 P. 986; Campbell v. Peacock [Tex.Civ.App.] 176 S.W. 774; Ingersoll v. Rousseau, 35 Wash. 92 [76 P. 513, 1 Ann.Cas. 35].

"The latter case discusses the question of lack of precedents for injunctions against bawdyhouses, and in this connection says: 'Doubtless there is some evidence that jurisdiction does not exist in a given case to show that it has never been exercised in like cases, but the persuasive force of such evidence is weak or strong, owing to the presence or absence of cases announcing the same or similar principle. *** Precedents are abundant where equity had interfered by injunction to prevent and abate public nuisances against which there existed the same common-law

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