
    No. 7779
    Court of Appeal - Parish of Orleans.
    Parish of Orleans vs Bernardo G. Carbajal and Minnie Reilley and Nicholas G. and Mrs. B. G. Carbajal, Executors of the Succession of Bernardo G. Carbajal.
    By Dinkelsvlel, J.
   By Dlnkelsplel, J.

This is a suit under the injunction and abatement act, being Aot Ho. 47 of 1918. The petition alleges that the premises Ho. 333 South Liberty Street, in''thés City, of which Mamie Reilley is the tenant and occupant, and the other defendants are the owners, was used on the 11th of June, 1919, for the purpose of prostitution and bore, the general reputation of being the resort of prostitutes, and a place where prostitution and assignation was carried on, conducted or permitted; hence, aots charged constitute a nuisance within the law and that a writ of injunction and abatement is necessary.

That Mamie Reilley, tenant and oooupant of said premises, on information filed August 36, 1919, charged with operating said premises as a disorderly house for the purpose of prostitution and assignation, when arraigned August 39, 1919, pleaded guilty to said charges.

The only answer filed in this case was by the owner; who after virtually declaring the unconstitutionality of the aot, which was overruled by the court below and referred to the merits, denies the allegations, and answering further says; "How further answering, defendí ant avers that the said premises is at the present time and has been sinoe August 1st occupied by a respectable family."

This suit was instituted by plaintiff on September 10, 1919. The aot charged was stated in the petition to have been committed on the 11th of June, 1919, some three months after the acts alleged had occurred, and the question presented in this case for determination is whether or not under these circumstances, and as disclosed by this record, the aot o&n or can not be enforoed.

A care ful study of the question involved leads us to the conclusion that this was a house of assignation and prostitution for some time prior to the month of June; certainly on the day mentioned it was conducted as a house of prostitution and bore the reputation of such a house. But the evidence further shows that some time afterwards notice to vacate was given to the tenant on the 7th of June, 1919, and subsequently within a few days the premises in question were vacated.

The title of the act, amongst other things, and the entire act itself; "to declare houses of assignation and prostitution, and the contents thereof, a nuisance and to provide means to enjoin and abate same; to declare the owner of any building, structure, land or other place, used for su.ch purpose, and the agent of such owner, and the lessee, sub-lessee, or other occupant thereof, guilty of maintaining a nuisance, and tc provide meansto enjoin them; and further providing for penalties for contempt of court and other clauses effect, imposing fines, payment of costs, etc."

Section 3 provides: "That any violation of the provisions of any injunction issued in a cause instituted under the provisions cf this act shall constitute a contempt of court ar.d a party found guilty of said shall be punished by a fine oi not less than or more than ft£5C-.C0 or by imprisonment in the parish prison for a period of not. lees than thirty days nor more than six -months, or by both fine and imprisonment ."

Section 7 provides: "That or. hearing in any action filed under the provisions of this act .evidence of the general reputation of the building, structure, land cr other ¿lace cr of the defendant or of the occupants thereof., or habitual visitors thereto, shall he admissible, and Judgment say be based on the general reputation so proved."

Under the provisions of this act and under the authorities, in cur opinion, the act must be strictly construed as quasi-criminal.

It has been held by our Supreme Court ir: the 31 Ann. 105, Paul Trevigne vs. School Board & W. O. Rogers, the syllabus of that case reading: "An injunction will not issue tc retrain the doing of a thing which has already been done which is an accomplished fact."

At page 1C6 in the same caíter the Court goes on tc say in the body of its opinion: "It would be as vague and unreasonable,to attempt to restrain action of an act which is juiicially admitted as having already been execut ed."

In the 133 La. at page 214, Dunham, et als, vs. Town of Slidell, the syllabus reads: "Under the rule that an injunction will not lie to enjc-int the doing of an act already done, an injunction inst a suit by taxpayers cf a town to restrain the carrying cut by the town of ur. criinsroe can issue only to prevent the further carrying out of the ordinance -nd will not interfsr with acts already dor.e under the ordinance."

Ard in the 105 La. page 179 it was held: "’There a nuisance has been abated before suit, no action will lie."

In the case cf People vs. Villeman, 174 Pac. 951 the syllabus reads: "In r proceeding under the 'Red Lights aot to enjoin the use of premises for immoral purposes, if it appears that the nuisance had boon abo ted before the action -was commenced, proceedings will be dismissed." And 1" the body of the same opinion, "Khere a nuisanoe has beer, c.hatei before the action to abate it was oom-r.-.enoed, and it does n-.t exist at the time, the action nidi be without foundation for its support and utterly barren of substantive results for in such case obviously there will be no nuisance to abete."

And in 39 Cyo. 1357: "The time to comrence suit. A suit to restrain or abatj a nuisanoe must be promptly brought, or the right to equitable relief may be lost."

It would in our opinion be an improper exercise of authority if. under the ciroumstanoes as disclosed by this record, the house in question would be condemned as a nuisance, when legal notioe had been given to the former tenants, who had violated the law to vacate who had vacated the premises, and to enforce this statute against the owners three months after this notice had been given and the house vaoated would, under the authorities, be without legal right of enforcement.

Defendants, the owners of the building, offered to prove the good character of the house in question and that of its ocoupants after the date of- the police raid, but prior to th6 bringing of this suit. One of the defendants in this case, Bernardo G. Carbajal, offered to prove by the tenant that she and her husband rented the premise^ in question on the 1st of August, 1919, moved in on that date, and are presently occupying the premises and that they are people of good moral character, and that the premises presently bear a good reputation.

Plaintiff objected to that proof and the court maintained the objection.

An objection by the District Attorney, which endeavored to prove the facts above stated, and was not permitted to do so, the object being to show, doubtless, that the nuisance in question had long since been abated and there was no offense.-being committed and the house was a reputable one. The court erred in. not permitting this and other testimony of a like character being put in evidence. The object of the law being to close for one year houses that had a bad reputation, meant nothing more or less than if otherwise the house had a good reputation long subsequent to the time that it had been shown its reputation was otherwise, was a matter of fact to be.determined by the court after the evidence was introduced.

For the reasons assigned, it is 'ordered, adjudged and decreed that the judgment of the court a quo be annulled, evoided and reversed, and tha.t this suit be remanded to the Court a quo to permit testimony to be introduced, if any there be, to show the character of the house prior to September 10th-, when this suit was  