State v. Lindsay

• Decision Date: 10 June 1911
• Docket Number: 17,111
• Citation: 116 P. 207,85 Kan. 79
• Parties: THE STATE OF KANSAS, ex rel. Fred S. Jackson, as Attorney-general, etc., and John J. Schenck, as County Attorney, etc., Appellee, v. W. S. LINDSAY et al., Appellants
• Court: Kansas Supreme Court

116 P. 207

85 Kan. 79

THE STATE OF KANSAS, ex rel. Fred S. Jackson, as Attorney-general, etc., and John J. Schenck, as County Attorney, etc., Appellee, v. W. S. LINDSAY et al., Appellants

No. 17,111

Supreme Court of Kansas

June 10, 1911

Decided January, 1911.

Appeal from Shawnee district court.

STATEMENT.

THE appellants, Dr. W. S. Lindsay, Christ's Hospital and others were charged with keeping and maintaining for compensation and hire an insane asylum or retreat in cottages upon the grounds of Christ's Hospital in Topeka without having a license so to do and in violation of the statute. The petition also charged that insane patients in such asylum shrieked, made outcries, exposed their persons, and escaped and attempted to escape; and that the defendants repeatedly continuously and persistently violated the laws of the state in keeping the asylum or retreat, which is an injury to the public and a common nuisance. The hospital answered alleging that the cottages had been placed in the charge of Dr Lindsay as a part of the hospital for the treatment of persons afflicted with nervous diseases under rules which it had prescribed, and that the hospital is a humane institution and not a nuisance. Dr. Lindsay answered by a general denial.

The state offered evidence in support of all the material allegations of the petition, and the court found:

"That persons who are mentally deranged, of unsound mind, and who are insane, have been received into said cottages, there kept, maintained and cared for by the defendants, with full knowledge that they were insane.

"That inmates of said asylum have cried out, screamed and made noises day and night which have disturbed the peace of that community and of the general public.

"That such insane persons have frequently escaped from said cottages clad only in their nightclothes, causing great fear and consternation to the public, disturbing the peace and quiet thereof.

"And the court further finds that said cottages as conducted are common nuisances and should be abated."

Thereupon judgment was entered "that Christ's Hospital, Dr. W S. Lindsay, James P. de Bevers Kaye and Dr. J. C. McClintock their agents, servants, representatives and employees, be and they are each hereby jointly and severally restrained and perpetually enjoined from keeping, maintaining or operating or using said cottages as an asylum or retreat for persons who are insane, mentally deranged or of unsound mind, and said defendants, their agents, employees, servants and representatives are perpetually restrained and enjoined from receiving into said cottages, keeping, maintaining, caring for or treating therein, persons who are insane or mentally deranged or of unsound mind, and from managing or conducting said cottages so as to in any other way disturb the peace and quiet of that community."

The appeal is only from that part of the judgment printed above in italics.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

NUISANCE--Private Asylum for Insane--License--Injunction. Where a statute prohibiting the establishment of asylums or retreats for the care of the insane or persons of unsound mind for compensation and hire without first obtaining a license from the state board of charities is continuously violated by receiving, keeping, maintaining and caring for persons of the classes named in an unlicensed asylum or retreat, thereby causing fear, consternation and disturbance of the peace in the community, an injunction may properly be granted to restrain such unlawful acts, and the court is not restricted to a prohibition of disturbances of the peace.

Z. T. Hazen, R. H. Gaw, J. G. Slonecker, and D. P. Lindsay, for the appellants.

John S. Dawson, attorney-general, and S. N. Hawkes, assistant attorney-general, for the appellee; Leonard S. Ferry, and Thomas F. Doran, of counsel.

OPINION

BENSON, J.:

The contention of the defendants is that the judgment is too broad. It is said in their brief:

"If the trial court had gone no further than to enjoin the appellants from operating these cottages in such a way as to disturb the peace and quiet of the community we would not be in this court complaining of the judgment; but when the judgment perpetually enjoins them from receiving and treating persons who are mentally deranged or of unsound mind, regardless of whether the presence of the patient or the treatment given is objectionable or not, then we submit that the court has gone beyond what the law authorizes."

It is claimed that the court had no authority to enjoin the defendants absolutely from receiving and treating the insane, persons of unsound mind and those mentally deranged, but only from conducting the place in such a way as to disturb the peace and quiet of the community. The statute referred to in the petition provides:

"No person or physician shall establish or keep a hospital, asylum, institution or house or retreat for the care, custody or treatment of the insane or persons of unsound mind, for compensation and hire, without first obtaining a license therefor from the state board of charities and corrections. This section shall not apply to hospitals, asylums or institutions established and conducted by the state or county; and provided also, that it shall not apply to cases where an insane person is detained and treated in his own home or that of some relative or friend. Every application for such license shall be accompanied by a plan of the premises to be occupied, to be drawn on a scale of not less than one-eighth of an inch to the foot, with a description of the situation thereof, and the length, breadth and height, and reference by figure or letter to rooms and departments therein, and a statement of the quantity of ground, exercise and recreation of patients proposed to be received therein, and also a statement of the number of patients to be received therein, and whether the license so applied for is for the reception of male or female patients, or both, and if for the reception of both, what number of each sex proposed to be received into such house, and of the means by which the one sex may be kept distinct and apart from the other." (Laws 1901, ch. 353, § 81, Gen. Stat. 1909, § 8493.)

A violation of the act is declared to be a misdemeanor and to be punishable by a fine.

This is the statute which it was alleged the defendants repeatedly continuously and persistently violated; and this...