State v. Emerson

• Citation: 155 P. 579,90 Wash. 565
• Decision Date: 06 April 1916
• Docket Number: 13144.
• Parties: STATE ex rel. KERN, Pros. Atty., v. EMERSON et al.
• Court: United States State Supreme Court of Washington

155 P. 579

90 Wash. 565

STATE ex rel. KERN, Pros. Atty., v. EMERSON et al.

No. 13144.

Supreme Court of Washington

April 6, 1916

Department 1. Appeal from Superior Court, Kittitas County; Ralph Kauffman, Judge.

Proceedings by the State, on the relation of F. A. Kern, Prosecuting Attorney, against Lathie D. Emerson and another. From the decree for relator, the defendant Emerson appeals. Reversed with directions.

Wm. O Lewis, of Ritzville, for appellant.

F. A Kern, Pros. Atty., and Newton Henton, both of Ellensburg, for respondent.

CHADWICK J.

This is a proceeding to abate, as a nuisance, a certain dwelling house in the city of Ellensburg. The complaint is based upon the act of 1913 (Laws 1913, p. 391), familiarly known as the 'Red Light Law.' The findings of the court are not disputed. The defendant Lathie D. Emerson was prior to the 19th day of August, 1914, the owner of the property. On that date he entered into an executory contract of sale with defendant Mattie McFadden, who, since the 1st day of September, 1914, has lived in and maintained the dwelling house for the purposes of lewdness, assignation, and prostitution. The defendant Lathie D. Emerson is a nonresident of the county of Kittitas; it being stated in the briefs that he has resided, at all times since the contract of sale was entered into, at the city of Ritzville in this state. The court found as a fact that the defendant Lathie D. Emerson had no knowledge, information, or notice, either actual or constructive, that a nuisance was being maintained upon the premises prior to the commencement of this action. The defendant Emerson, who appeals, does not take issue with the conclusions of law, and the decree of the court that the property shall not be hereafter maintained for the purposes mentioned, or that it shall be closed for a period of six months, but he does take issue and assigns as error the decree of the court that a personal fine of $300 shall be assessed against him, to be paid within three months from the date of the judgment, together with the costs of the proceeding; the contention being that the facts found do not sustain the conclusions of law and the decree.

The concrete question presented by the record is whether an owner of property, who has contracted to sell it or who has leased it to another, is liable in person and in property for the tax or penalty, whichever it may be called, which the statute says shall be entered as a part of the decree of abatement.

The relator relies upon State ex rel. Dow v. Nichols, 83 Wash. 676, 145 P. 986; State ex rel. Kern v. Jerome, 80 Wash. 261, 141 P. 753; and Tenement House Department v. McDevitt, 215 N.Y. 160, 109 N.E. 88. We said in the Dow Case:

'It is said, however, that the owners of the property had no knowledge of the existence of the nuisance. This is doubtless true. But the fact that the owners had no knowledge that prostitution was being carried on at the place mentioned would furnish no reason why the court should not abate such nuisance if, in fact, it existed.'

But the question here presented was not there discussed. We held that the court might abate the nuisance whether the owner had notice of its existence and continuance or no. This, a court of equity might do, irrespective of the statute. In the Jerome Case the property had been used by the owner as a place of prostitution. She knew that the one she agreed to sell the property to, and had put in possession, was a prostitute. The only issue tried out, so far as she was concerned, was whether she had notice. This was clearly proven. She had her day in court, and the court found her guilty, and the fine was rightfully imposed. This made due process of law, under the rule of Hodge v. Muscatine County, 196 U.S. 276, 25 S.Ct. 237, 49 L.Ed. 477, where a subsequent opportunity to have a remission of the tax was held to meet the constitutional guarantee of due process.

In this case the owner is found to be innocent of actual participation in the maintenance, and without notice, actual or constructive, of the existence of the nuisance. So that we have an entirely different case. The Hodge Case is apt authority in so far as the Jerome Case is concerned, but it does not bear out the holding that the penalty or tax may be laid upon an unoffending owner, in person or in property, for that question was not within the facts. On the contrary, it was, after suggestion, passed by the court without decision.

This form of law by which an owner is made to suffer for the sins and omissions of his tenant is a modern creation. Its first expression is to be found in the 'Mulct' liquor laws passed by several of the states. These laws, so far as we have been able to inform ourselves, provided, in all instances, that the owner would be liable for the tax where the business was carried on by another, provided he had actual or constructive notice that his premises were used for the purpose of selling liquor. 23 Cyc. 150; Morgan v. Koestner, 83 Iowa, 134, 49 N.W. 80; State v. Lawler, 85 Iowa, 564, 52 N.W. 490; State v. Severson, 88 Iowa, 714, 54 N.W. 347; State v. Price, 92 Iowa, 181, 60 N.W. 514. Following this law, came what is known as the 'Cigarette Law.' This law did not, as a rule, make any express provision as to notice, and, so far as we are informed, the liability of an owner of property, who is without notice, to answer for a penalty, has never been directly passed upon. Hodge v. Muscatine County, supra; Cook v. Marshall County, 196 U.S. 261, 25 S.Ct. 233, 49 L.Ed. 471. Then came the Red Light Law. This law was first adopted in Iowa (Acts 33d Gen. Assem. c. 214), and thereafter in Washington (Laws 1913, p. 391), Minnesota (Gen. St. 1913, §§ 8717-8726), Nebraska (Rev. St. 1913, §§ 8775-8782), Illinois (Laws 1915, p. 371), and possibly in other states. The Iowa law does not make the liability of an owner contingent upon notice, express or implied. Our law is the same as the Iowa law.

Whether the owner of a building where prostitution is practiced may be mulcted if he have no notice of its illegal use, either express or implied, has not been passed upon either in Iowa or Washington. In Nebraska, the court held, in State ex rel. English v. Fanning, 96 Neb. 123, 147 N.W. 215, that the Red Light Law, in so far as it assumed to put a tax upon an owner having no notice, was in violation of the Constitution, although the unlawful use was enough to warrant an order of abatement, 'even though the evidence as to the lack of knowledge on the part of the owner is such that it does not warrant an injunction or a judgment for costs against him.' Saying, further, that the owner could release the property at once by giving the bond provided in the act. Our law, section 7.

The law was before the Supreme Court of Minnesota at the suit of State ex rel. Wilcox v. Ryder, 126 Minn. 95, 147 N.W. 953. The court held, as we read the decision, that an owner who did not prove his innocence to the satisfaction of the court, and also inability to have acquired such knowledge by reasonable care and diligence, would be subject to the penalty or tax. With this holding we have no quarrel. But the Supreme Court of Nebraska, having the case of State v. Fanning, still within its reach in State ex rel. English v. Fanning, 97 Neb. 224, 149 N.W. 413, upon the anthority of the Minnesota case, or, as we believe, upon a mistaken notion of the holding of that case, reserved its opinion as to the penal feature of the law.

Considering, then, that the Minnesota statute provides for notice, and that the question is still open in Nebraska, we turn to the decisions in New York. In Tenement House Department v. McDevitt, 85 Misc. 429, 147 N.Y.S. 941, the Supreme Court held that an owner of a building, where prostitution had been practiced, was not subject to the civil penalty of $300, in the absence of knowledge or notice, actual or implied. In that case, no more than one or two acts of prostitution had been proven. Judge Bijur, who wrote the opinion, said:

'I am of opinion that a landlord of a tenement house cannot lawfully be held responsible merely because one or more acts of prostitution have been committed by a tenant or other person on the premises. It is evident that he could not prevent such acts without having an agent constantly present with every single person in the house. A requirement so oppressive would place a burden upon the ownership of this class of property, equivalent to substantial confiscation, and therefore be beyond the power of the state to impose.

'Again, since the landlord cannot prevent such acts, to charge him with a penalty for their occurrence would be to punish him where he has omitted no legal duty and committed no wrong.

'The provision in the law which we are discussing would, if interpreted as appellant claims, as I have shown above, neither prevent the commission of the offenses against which it is aimed, nor compensate any one for such injury as might result from their commission.'

On appeal, the Court of Appeals, in the same case (215 N.Y. 160, 109 N.E. 88), held that the imposition of the penalty was in the nature of a tax, or a petty penalty, and that there was '* * * nothing that need shock any mind in the payment of a small pecuniary penalty by a person who has unwittingly done something detrimental to the public interest,' citing many cases which, in our judgment, may be readily distinguished from the case at bar; the essence of the court's holding being:

'If the occupant of an apartment has used it for indiscriminate intercourse with men, has used it in the sense that she has kept or maintained it for that purpose ( Commonwealth v. Cook, 12 Metc. [Mass.]

93; State v. Ruhl, 8 Iowa, 447, 454), the diligent owner will seldom be blind to the

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