
    STATE ex rel., HAUGAN, State’s Attorney, Respondent, v. DENIS, Appellant.
    (167 N. W. 151.)
    (File No. 4184.
    Opinion filed March 26, 1918.)
    1. Courts — Venue—Issue of Law, Trial of in Another County, “In Vacation,” Jurisdiction — Statute.
    Under Code Civ. Proc., Sec. 245, providing that issues of law must ba tried at a regular or special term of circuit court or by the court in vacation, etc., and that if tried by the court in vacation, * * *, same may be tried and determined in any county of the circuit within which the action is brought. Held, that the court was authorized thereunder to hear and pass upon a demurrer to a complaint, if at the time of such hearing, the circuit court of the county of the venue was “in vacation.” Held, 'further, that such hearing and determination in another county, during a period of adjournment of the regular term of the court of the county of venue, which had adjourned to- a time beyond that at which the hearing was had, was a hearing “in vacation,” within said section; that the word “vacation,” when applied to our circuit courts, should include any period, whether one day or more, during which court might legally have been held, which period elapses between one day’s session of court and another day’s session, even though both such days be of the same term.
    2. Courts — Circuit Court — Trial at Term — Order for “Special Term,” Immateriality.
    Wherej after hearing and decision upon demurrer to a complaint, in a county of thei circuit other than that of the venue, the court made an order calling a “special term” for a certain day which was of a regular term, held, that the cause was properly tried on said date,' even though the order calling a special term was void as being a “court” order.
    3. Nuisance — Hotel as Public Nuisance — Place of Assignation, Drunken Disturbing Revelry, Resort of Prostitutes, Proprietor' Soliciting Illicit Commerce- — Evidence of Nuisance, Sufficiency.
    Where, under guise of conducting a hotel.in a hotel building, near the center of the city, a low bawdy house was kept by the proprietors; intoxicating liquors being unlawfully sold to adults and young boys and girls; the place being commonly resorted to by prostitutes and men filthy with disease who were a menace to public morals, safety and health; where drunken disturbing revelries were rife, the proprietor himself soliciting illicit commerce between prostitues and men; at prices fixed by himself; such place having keen conducted for ten months, and for the last two' in violation of a temporary injunction, held, that evidence of these facts shows a situation and condition offensive to public decency, against peace and dignity of th® general public, a public nuisance, and a menace to public morals, health and safety; findings to which effect and conclusions thereon that the building should be abated as a continuing public nuisance, etc., and that the proprietor was an improper and unfit person to manage and operate such hotel, sustained.
    4. Appeals — Error—Failure to Assign Error, Effect.
    A point urged upon appeal as error of trial court; will not be considered on appeal, unless assigned as error.
    5. Injunction — Hotel Nuisance' — Restraining Operation of Hotel, Not Merely Wrongful Acts — Jurisdiction to Enjoin.
    Trial court, in prohibiting by final injunction appellant, proprietor of a hotel adjudged to be a continuing public nuisance, from operating the hotel, did not, by refraining from limiting the prohibition to specific wrongful acts found to have been committed, exceed its authority; since while ordinarily a public nuisance of such character should be abated through merely prohibition of things rendering the building a nuisance, yet when facts disclose such procedure has been found unavailing, courts should take such steps within equity cower as will effectually end the nuisance; which power is possessed by the courts.
    6. Courts — Jurisdiction to Enjoin Public Nuisance — Hotel as Bawdy House — Authority to Enjoin, Statutory Sources.
    The circuit court, in rendering judgment permanently prohibiting by injunction continued operation of a- hote^ operated by its proprietor as a bawdy house adjudged to be a continuing public nuisance,' did not derive its authority from Laws 1913, Ch. 123, providing for enjoining and abating houses of lewdness, etc.; but-such authority, is found in Civ. Code, Sec. 2400, providing in part that a remedy against public nuisances is abatement.
    7. Nuisance — Hotel Kept as Bawdy House, Unlawful Sale of Liquors Therein to Adults and Young — Drunken Revelries— Whether a Statutory Nuisance?
    A hotel building, commonly operated by its proprietor as a bawdy house and for unlawful sale therein of intoxicating liquors which were distributed throughout the building to men and women and young boys and girls; the drunken revelries therein being disturbing to neighbors and the public generally, is a public nuisance under Laws 1907, Ch. 178, authorizing certain cities and towns wherein 'by vote sale of intoxicating liquors at retail has been -prohibited to restrain, prohibit .and suppress vending, etc., of -spiritous liquors, etc., and declaring such places to be public or common nuisances.
    
      8. Evidence — Hotels, Operation of for Unlawful Drinking, Forbidden Love, As Nuisance — Judicial Notice of — Rule.
    The Supreme Court will not take judicial notice that all hotels of this state are common, nuisances, by reason of the fact that to some extent, they are or may be used for gambling, drinking and forbidden love; nor that, for every breach of law, even though it renders a hotel a nuisance under statute or common law, it will be reasonable to abate such nuisance by closing its doors to the public. Held however, that when a place of business. is held out to the public as a hotel, into which all classes of people are at liberty to and are invited to come, into which the unsuspecting stranger, the unsophisticated boy or girl may be entrapped, when such place is in reality a bawdy house of lowest order, with unusual indulgence in intoxicating liquors commonly pertaining to such place, and wherein the health of the innocent- is imperiled through danger of contact with articles or of -breathing air laden with disease germs of foul and dangerous nature, and when such place has become a menace to health and -public morals, the proprietor having bade defiance to ordinary remedies applied by courts for abatement of such nuisances: — then courts are justified in applying remedies, however drastic, within their equity powers and deemed necessary to accomplish the end sought.
    9. Injunctions — Enjoining Hotel as Nuisance — Financial Loss as Consequence, Materiality.
    That appellantj who as -proprietor of a hotel has been enjoined from continuing its operation as a bawdy house and for unlawful sale of intoxicating liquor, etc., may suffer financial loss as an incident to being so forbidden, is immaterial; since under such iujuuction money loss naturally results, but it comes, not as punishment, but as incidental to necessary protection of the body politic.
    Gates, J., and Smith, J., concurring specially.
    Appeal from Circuit Court, Codington Octi-nty. Hon. Cart, G. Sherwood, Judge,
    Action by the State of South Dakota on the relation of A. J. Haugan, State’s Attorney of Coding-tom County, S. D., against E. L. Denis, to enjoin continued operation of a hotel of wtódli dlef-endlanlb was proprietor. Enom a judgment for plaintiff, and from am order denying -a new trial, defendant appeals.
    Affirmed.
    
      Sherin & Sherin, for Appellant.
    N'ti appearance for Respondent.
    (i) To point one of the opinion, Appellant- -cited: Cade .Oiv. Rro'c. Sec. 244; Volume 2, Botivier’s Diet,. 1187; Black Raw Diet. 1209; 7 R. C. R., page 992; 5 Mass. 436; 116 U. S. 642; •Blook 29 Lawyer® Bel. 761; State v. Montgomery, 8tih Kan. 351; Sawyer y. Bryson, I2tíh Kansas.
    (5) Tó (point five of the opinion!, Appellant cited: State v. Bos-siinghmam, (S. D.) 152 N. W. 285; Laws 1907, dh. 172; Stabe v. Neil-sclra, (N. D.) 99 N. W. 1077; State v. Bennett, et al., (N. D.) 163 N. W. 1063.
   WHITING, P. J.

This cause is mow before us upon appeal from the judgment referred! to- in State ex rel. Haugan v. Belatti et al., 38 S. D. 410, 161 N. W. 614. Reference is made to- -the opinion® Hhler-ein-, as a reading- -of -slame will assist in an. understanding of the nature of the -cause, and wiili di-sclo’s-e the material-provisions of the judgment from which this ’appeal was taken. The findings of fact stand absolutely unchallenged, but 'appellant, 'the lessee off the hotel building, questions the authority or jurisdiction -of,the court to enjoin him from using the building as a hiotek Appellant also- questions the validity of -certain proceedings prior toi and leading up- -to- the trial- of the issues off fact.

The action wias brought in Codington county. Appellant demurred- to the complaint. Tire -issue of law upon this demurrer was1 noticed! for hearing before the co-urt in Brookings county. It was there heard on September 12, 1916, but over tire objection of appellant. The -ociurt overruled the demurrer. There is no question' but that the -court wa-s- fully -authorized, under section 245, C. C. P., to hear and -pass up-o-n such demurrer, provided -only that, at the time -of -suicih hearing, the circuit -court of Qodingtom counity wais “in- vaCatioh.” Appellant contends such court was n-ot “in -vacation” because this hearing was had -during a period -of adjournment o-f the regular term of co-urt -of Coding-ton -co-unty, which had adjourned from August 29th hoi October 3d. Appellant -contends that the word “Vaciatiori’ as used in said section 245, C. C. P., should be limited to the -common-law definitlitan of “vacation,” the period from- the end- of -opie term to ibhe beginning -of -another. We dlo- mot think such a limited meaning is consistent with the theory upon which our system of counts and thie-i-r work -is -based. The woird: “vacation,” when applied to -our -circuit courts, should incluidle any period, whether on-e day or more, during which court might legally have been held, which period elapses between one 'day’s; session of co-urt and'another day’s -Session, even thldugh- both of -such idays may be days of the same term, Conkling v. Ridgely & Co., 112 Ill. 36, 1 N. E. 261, 54 Am. Rep. 204; Thompson v. Benepe, 67 Iowa, 79, 24 N. W. 601; Himmelbarger H. L. Co. v. Keener, 217 Mr. 522, 117 S. W. 42; Coe, Sheriff, v. Hallam, 173 Ill. 461, 50 N. E. 1072.

At 'the ¡time of overruling the demurrer, the 'court entered an 'order, granting appellant ten days in which to answer. Upon the same date, there was issued what purported to be a “court” order, calling a special term of court in and for Coding-ton County for (the trial of the issues of fact in this case. The date thus fixed for said trial being October 3d, which, as above noted, was a day o'f the regular term olf court in and for Coding-ton county. Over objection of appellant, such trial was held, commencing on October 3d. Appellant contends 'that, under-our Constitution and statutes, the order Calling the “special term” was -invalid because a “court” -order. We deem it unnecessary to consider such contention. This 'Cause was tried on a clay of. the “regular term” of the proper court; a sufficient notice of trial was served; and, there being nothing in our -statutes1 preventing the circuit court from trying Causes wherein issuesi are j owned after 'the term commences, this -cause was properly tried, -even though 'the order calling a -“special term” was invalid.

Coming now to the merits: o|f the appeal. Appellant, under the guise of conducting a 'hot-el í'n¡ a large hotel building situated in almost the very center of one of our larger -cati-e©, in faot Conducted, as his principal bus-iniesis, the lowest kind- of a bawdy house with all its usual accessories-. At all times of day and- night, including Sundays, intoxicating liquors were unlawfully -soldi and distributed throughout the building, not only to-men and .wOmen, but to young boys and girl's. This building was resorted to as a bawdy house and assignation pi'ace by both white and black prostitutes, and by -prostitutes -and- mien filthy -and diseased, who were a man-aloe to the public moral-s-, safety, and health of the Community. The drunken, revels of Itatoxioated men and women disturbed the neighbors and public generally. Appellant himself kept and maintained ©uch prostitutes for purposes of lewd, immoral Commerce, and he himself solicited illicit commerce between them- a-nidl men. Appellant exacted and received a percentage of the moneys received for such prostitution. and 'himself fixed the price and conducted all arrangements anid negotiations) for same. Such place was bo conducted by appellant for a period of some ten months, during the last «two' of which it was conducted in violation of a temporary writ of injunction issued out of 'the trial court. All of the above produced a situation and condition offensive to pubic decency, against the peace and dignity of the public generally, ¡a public nuisance, anid a menace to the public morals, health, 'and safety. All tli-is the •trial -count found, and- from such finding's aomcludled that the building should be abated as a public nuisance, because it was a Continuous nulteance, a menace to the moral®, health, good order, and economy o)f the community, concluded that the plaintiff 'had no, adieq-uate remedjy at law, mud oamckide'd that appellant is an improper and unfit person to manage and operate such' hotel.

The judgment, ate will be seen from1 tíre opinion above -referred to; was in effect the abatement of the nuisance, not by the destruction of the building, but by perpetually enjoining appellant from transacting any business in the same.

Appellant urges as error the failure of the count to formally adjudge tíre premises to be a nuisance. There i's no assignment of error presenting such claimed defect.

Appellant contends that the court exceeded its' authority in prohibiting appellant from maintaining these premises as a hotel; that it could at best but restrain tire wrongful acts found to have been committed; and this contention is) put forward in spite of tire fact that lit appeared that he had been, for two-months, continuing these unlawful practices in violation of an injunctional ordlar issued by the court. It is clear that, to sustain appellant’s contention, it must be -conceded that our courts are powerless to 'effectually control such a situation, except it be by means of and through judgment ''abating 'the nuisance by directing some officer to elolse or destroy the building. It is clear— in fact stated by the trial court — 'that such court did not derive its authority to render its judgment from any special law such as -chapter 123, Laws 1913. The authority of -such court must be. found in the general authority of -courts1 to abate public nuisance as prcivi-de'd in sieotion 2400, C. C. This house of ill fame wherein- intoxicating liquors were sold was, under the expre'ss provisions of chapter 178, Laws 1907, .a public nuisance. That this mui-siamce can be abated is clear. State ex rel. Beck v. Bossingham, 35 S. D. 355, 152 N. W. 285. How shall itl-.be ■abated? We are of the opinion- that each -case must'-stand Upon its own facts, -and that, while ordinarily a public nuisance'of .tlbfe kind should be abated through the marie prohibition, of 'those things -that render the -building a nuisance, yet, when- th-e facts disclose that -such -procedure wbullld! be- or, -a,s in thi-s:'case,'-has been unavailing, the -ao-urt should take -such steps within its, equity p-owers a:s wii-1-1 effectually put an- end to- the nuisance;. and certainly our -counts are not without the -necessary power to accomplish this -end. . •

Appellant has cited to us- the late case of State v. Bennett (N. D.) 163 N. W. 1063, L. R. A. 1917F, 1076. We'do-’not know the motive prompting such citation, unless it wlas- to- -call -out attention, -ta th-e following words found iln -the opiniiloln o-f Justice Robias-o-u:

“Shall we sOy that the McKenzie- Hotel is a dom-mom nuisance, anld -that it should be cíos-ed! * * * by reason of the fact Chat, tol -some extent it is or may .-be used-, as all hotels áre used, for gambling, -drinking, and1 forbidden love?”

This- court will not take judli-clial notice that “-all'hotels” of thlite state are -subject to the above indictment, -and we trust that the above -charge would! apply to- but few. Neither -do- we hold that, for every breach of the law, even thotigh it -should ■render a hotel 1a nuisance under o-ur statute or at common law, it would bie reasonable to- -abata such nuisance by the closing of its dloors to the public. But we -dlo- hold1 it to- be th-e- law Of ■this state -that, when a place of business is bold out to- the public to be a hotel, into which -all cla-sses of people are -at liberty to and in fia’ot are invited to eomie and into which the- iirisu-sp'ecting stranger, 'the unsophisticated boy or girl, may be entrapped1; when--such place 'is in reality but a bawdy-hous'e of -the lowest -order, with the u-sual indulgence in intoxicating -liquors that commonly pertains to- a bawidyhous-e; when -such place is onie where, even if the innocent Ore not -beguiled into- wroogdloing, yet fbelir very health i-s imperiled through -danger -oif coming -in contact with-articles, or -oif -breathing' air, laden with -dis'ea-se germs of th-e most foul and dan-gieirou-s n-atu-re; when such place has become -a stench i-n flue nostrils -of all -decent people and a menace to the health and morals of tihie public; anid1 when tibe party maintaining such nuisance bid's defiance to the -ordinary reniieidies applied by courts f'dr itihe abatement of such a nuisance — then tihie courts, 'are justified in applying such remedies, howsoever drastic, -that He within their equity powers and that sean to them necessalry to' accomplish the end isioughit. We believe that tibe Mai1 court took tíre only efficient means to meat the condliitioins confronting it.

Thalt aippelJianit may 'suffer a financial loss a)s' an incident tid being forbidden to continue in tibe .public use of tibie building is a matter entitled to little oons'idaratílon. Whenever tíre civil power Of the state enjoins -one from the carrying on of a business or the pursuing of a profession, money 'loss naturally results, but it comes-, noit as a punishment, but as an incident to- the nelcesisary protection of the body politic.

Tire judgment 'appealed from1 is sustained.

GATES, J.

(concurring specially). I concur in the opinion and in tire propriety of the judgment because the itnchailenged facts clearly warrant such judgment, -but I do not agree that the trial court's conclusion of law., to. the effect that Denis- was an unfit person to manage or operate the hotel1, wais entitled to any weight in the determination of what the judgment should be, mor do I concede the correctness of tihie view expressed in the minority opinion, when the case was before us at a former time, to the effect that courts have authority to pass upon the qualifications of hotel keepers,. The assertion of such authority implies the night of courts to abate a person ¡instead of a ootodiitioni. Bad' as tihie character of appellant is shown to be, I do mat believe authority exists in the judiciary to enjoin him from engaging elsewhere in the hotel business.

SMITH, J., concurs.'  