
    No. 7746.
    Court of Appeal- Parish of Orleans.
    Parish of Orleans VS Abraham Burglass and Mrs. Henry Benton.
    By Dinkelspsll, Judge;
   OPINION.

By Ms HOnor'John St. Peral.

This Is an notion to abate an alleged nuisance under the provisions of Aot 47 of 1918, which provides, in suhstanoe, as follows;

I. That buildings or other places in whioh "assignation (slo) or prostitution is carried on, oonduoted, continued, permitted or exists . are deolared to be nuisances," and the owners, agents, leasees and occupants thereof guilty of "maintaining a nuisance."

2. That the District Attorney fand others) may maintain an aotion to abate said nuisance and enjoin the owners, lessees and occupants from maintaining the same or permitting the continuance thereof.

3. That a violation os such injunotion shall be a contempt of court, but of a Itind peculiar to itself, in this; that infliction of penalties vel non is not discretionary with the court, nor is the power of the court for to punish thereof merely limited (Const Art. 177); but, as in criminal statutes, a minimum as well as a maximum penalty for suoh contempt is fixed, whioh minimum fat least) 3hall be imposed.

4.That if the existence of such nuisance he established, the judgment shall inolude an order of abatement closing the building or other place against its use for any pumose whatever for one. year thereafter, unless sooner released as mentioned below; and the use of said premises during said time bjr any person in ¿ny manner is likewise made a contempt of court punishable as aforesaid.

5.That upon furnishing bond with surity for the full value of the property, conditioned that he will not permit the property to be used for prostitution for one year thereafter, and upon satisfying the judge that he is "in good faith," the owner may have the property released for other purposes; subject however to a forfeiture of $100 under said bond (in addition to the liability of the owner to punishment fo-r contempt as aforesaid) for each day the property may be used for the prohibited ^purpose; the same being revoverable summarily in the one original proceeding.

6. That the net amount of the fines (and forfeiture?) collected shall be paid over to the school fund.

7. That the general reputation of the premises, or of the defendants (owner and tenant), or of the occupents and habitual visitors, shall be admissable in evidence and judgment may be based thereon.

And the aot Is entitled, "An Act, to declare houses of assignation and prostitution.a- nuisance, K o."

I.

Neither the act Itself as a whole, nor any feature thereof, is challenged on constitutional grounds, and hence re are not now concerned with any such consideration. Nevertheless, in order to interpret and applg this law, we are hound to notice the nature and extent of certain features which find themselves therein.

It will therefore he observed^ I. '¿'hat the statute is of a highly penal character, i’or instance; what the ligis-lature is pleased to terra a contempt, has in effect been made an offense, to which a fixed minuraum penalty has been attached which the court must inflict; not in its-discretion or for thepurpose of securing compliance with its mwids.te, hut as. of course and as a punishment applicable not to parties only hut even to "any person do."

2. That the penality of closure for one year, which follows as of course, is incurred by the mere fact tbrt the premises aro being used for prostitution, regardless of any faotual! knowledge thereof on the part of the owner; which closure is of course nothing else than a forfeiture of the uso or revenues of the property for one year.

5. And lastly,that these two features constitute the essence of the ststute being the only nev; matter therein, and. therefore the whole ststute; which otherwise makes no change in the law, since admittedly the purwer of the courts to abate tbr nuisance by injunction or otherwise, and punish in the usual way any violation of its mandate, exists independently of the statute. 29 Cyc 1218-1222

II.

Oonsidoring, therefore, that the statute is in its nature highly penal, these consequences flow; that the ststute itself must be strictly construed in applying these penalties, and that the facts necessary to sustain a eomplui it h r"'fU.der must be proved beyond reasonable doubt; U. S. vs. 84 Boxes of Sugar, 7 Peters 453.

III.

How the statute (section I) does not denounce a house as u nuisance and inflict the penalties merely because an act of immorality has been committed therein, hut only if "prostitution- 3.3 curried on, conducted, if continued, permitted or exists"’ therein.

Rut the term prostitution, legally and otherwise, means something more than simple immorality; it implies promiscuous / or ia.discrirAiiUr.te commerce between the seres, Z2 Oyc 731. A single immoral act, or even a series of immoral acts ■between tbc name persons does not constitute prosti-1 ntion. or tirand the house wherein they are committed a house of prostitution; State vs Irwin, 91 N. W. Rep 960 (Iowa); also 91 N. W. 760 (8 Iowa 447); Tenement Dep't vs Mc Devitt, 215 N. Y. 160. Henoe to constitute a house of prostitution, the premises must have been maintained, even if only for a brief period, for the purpose of promiscuous commerce between the sexes.

And since in the very nature of things a house oannot be maintained for such purposes without some degree of publicity, both sought and tnaought, it follow» that suoh a house and its "reputation" are inseparable.

And it is just these very features thereof (promiscuous commerce therein between the sexes, and more or less widespread knowledge of .where it may be practiced without restraint) which constitutes the real raenaoe to publio health and public morals and henoe the "nuisanoe" whioh the statute intends to repress.

llore than that; it is also ##$# this very feature (more pr less publicity) whioh breathes life into these otherwise drastic laws by fixing the owner oonstruotive, if not actual, knowledge of the use which is being made of hi3 property; thereby saving them against the speoious charge or punishing the innocent instead of the guilty and thus taking property without due prooess of law. Tenement Dep't vs Mc Devitt, 215 N. Y. 160 (Ann Cases, Am. & Eng, 1917 A 455)

IT.

Our statute Indeed seems to recognize this whole situation fully; it denounces only houses "where assignation (sic) or prostitution is oarried on, conducted, permitted or exists," and this irresistably compels the idea of a place or resort for lewd persons and promiscuous commerce between the sexes; that is to say (since the aot cannot he broader than its title, Const. Art 31), a house of assignation,pr house of prostitution, purely and simply.

And as suoh places cannot exist; without at once (or soon) acquiring a reputation for being what they are, the statute provides that the reputation of the building, its owners, tenants, occupants and habitual visitors, may suffice as to the basis for suppressing the place. The condition of the release bond (shall not permit) and the fact that the owner must satisfy the judge that he is "in good faith," also serve to confirm the idea that the reputation of the premises is to be taken into consid; ration in determining v/hat constitutes a house of assignation.or prostitution. For if the facts be there, the reputation will not be wanting; and to dispense with any inquiry into reputation will inevitably lead to an abuse of the act and the warping of its purpose to other an;’ sinister, ends.

V,

Ihese things considered, we agree with the District Judge that plaintiff has not made out a case against these defendants under the statute.

It is shown, at most, that on a certain occasion the police, acting upon a hint from some undisclosed source, watched the premia, to wit, a lodging house conducted by an /> old woman, occupied by herself, her husband and her son, and visited by her daughter and grandchildren, all of whom as well as the house itself bear a good reputation; that they saw a young man enter the .premises with a young woman known to. them as a, prostitute with whom he occupied a room for a brief while and undeniably had intercourse; that they also -found, sitting and conversing in another room another young man and two women, one-of whom resided in the premises and was in her negligee (not her underslothas); that this woman had onoe been a prostitute but for a year or more the had been earning an honest living; and othsr woman was respectable.

As to whether or not the old woman knew that her room was rented only for a passing purpose, there is a oonfliot of evidence between her and the young man, sufficient at least to throw doubt upon his testimony; especially with the unexplained failure to take the testimony of his woman companion (only two waelcs after the ocourenee), and in the absence of any suggestion as to the nature of the complaint received by the polioe and whether anonymous or- otherwise; nni flmllji unnt i~i rl nnk1 ng --*-4,vr1' -r ~nrr ~v' ilinmin Tvnt nnn nf th< nPPIssih hllfl Him silly — — hp nlfhti in pit fnirHíierlT mil i I ITI"T'_ Ini mniinirn en tlin ni 1 tninii ntunil imV n 'TirriTI inmiT-S- hewhnuTti

Henoe, we believe, the single fact on which plaintiff relies is not proved with anything like certainty; and oven if proved, falls far short of establishing that the premises in question constitute a "house of prostitution, / or house of assignation" within the meaning of this act, or in any sense.

VI.

In conclusion, it may be superfluous yet well to say, that-the principles announced abové do not apply, and arc not intended to apply, in cases of statutes and ordinances levelled at individual oases of lewdness and immorality where the penalties are visited directly upon the offenders; nor in oases where nuisances in fact may exist independently of the statute, and it is only a qusstio.i of suppressing them.

But wh- ' r> r\mu to1 : v r "'cply this; That tV purpose of this statute, passe C as a wcr measure, is to suppress in the interest of public health c*nd public morals, so called "commercialized" prostitution, «. -r. put the burden of that suppression chiefly upon the owners o4' who property used for th«?t purpose, th; statute noírn, none the less, to deal f-Jily with such o’-^ev:., he-,os to hold ^r.e.rj to account only so far us they iaio'v, or should hnovr, that they arc aiding end abetti.i¿, tho 1 nr-tasóme traffic; that unless the t-.tute is so understood and ¿-.-pniicd it tr not only harsh, but broader than its title and ohjoctioo^pie on other grounds both of h> -<.nd of policy; and ho-mo cu r conservative ifitcrorot-it'-on thereof "ut res metfip t ^uam persrt."

The judgment apir .Lod i rom is there foro sf/irraod .

New Orleans La. March 1920  