State ex rel. Carpenter v. Boyles

213 N.C. 432

• Court: Supreme Court of North Carolina
• Decided: May 4, 1938
• Status: Published

Opinion

Clarkson, J.

N. C. Code, 1935 (Michie), chapter 60, “Nuisances Against Bublic Morals,” section 3180, is as follows: “Whoever shall erect, establish, continue, maintain, use, own, or lease any building, erection, or place used for the purpose of lewdness, assignation, prostitution, gambling, or illegal sale of whiskey is guilty of nuisance, and the building, erection, or place, or the ground itself, in or upon which such lewdness, assignation, prostitution, gambling, or illegal sale of liquor is conducted, permitted, or carried on, continued, or exists, and the furniture, fixtures, musical instruments and contents, are also declared a nuisance, and shall be enjoined and abated as hereinafter provided.”

Section 3181: “Whenever a nuisance is kept, maintained, or exists as defined in this chapter, the city prosecuting attorney, the solicitor, or any citizen of the county may maintain civil action in the name of the State of North Carolina upon the relation of such city prosecuting attorney, solicitor, or citizen, to perpetually enjoin said nuisance, the person or persons conducting or maintaining the same, and the owner or agent of the building or ground upon which said nuisance exists. In sucb action tbe court, or a judge in vacation, shall, upon the presentation of a petition therefor, alleging that the nuisance complained of exists, allow a temporary writ of injunction without bond, if it shall be made to appear to the satisfaction of the judge by evidence in the form of affidavits, depositions, oral testimony, or otherwise, as complainant may elect, unless the judge; by previous order, shall have directed the form and manner in which it shall be presented. When an injunction has been granted it shall be binding on the defendant throughout the county in which it was issued, and any violation of the provisions of injunction herein provided shall be a contempt, as hereinafter provided.”

Subsection 3182 makes provision: When triable; evidence; dismissal of complaint. Section 3183: Yiolation of injunction; punishment. Section 3184: Order abating nuisances; what it shall contain. Section 3185: Application of proceeds of sale. Section 3187: Attorney’s fee may be taxed as costs.

The competent evidence on the trial fully sustains the allegations of the complaint. Under section 3182, in part: “In such action evidence of the general reputation of the place shall be admissible for the purpose of proving the existence of said nuisance.” The plaintiff introduced many witnesses who testified that the general reputation of the place was bad. The record discloses that Greenwich Village is a tourist camp with 12 cottages on the rear, 2 parking lots for cars and trailers, and a main building which consists of a filling station, drug store, physician and surgeon’s office, dining room and kitchen — and part used for dancing hall. It is located on Wilkinson Boulevard and defendant herein is the owner and proprietor of the place.

The defendant appellant’s brief sets forth 8 questions involved, which we will consider:

(1) Did the court err in denying defendant’s motion to be permitted to withdraw answer and file demurrer?

(2) Did the court err in refusing to require the plaintiff to give bond for costs and an injunction bond?

(3) Did the court err in refusing to dismiss the action as being illegal and unconstitutional?

None of the above contentions of defendant can be sustained. The record discloses the following: “The above case was called for trial Tuesday, 12 October, 1937, at 10 a.m., before his Honor, Wilson Warlick. The defendant comes into court through his counsel, before expiration of 30 days after service of summons, and moves to withdraw answer.and file demurrer. Where upon such motion the court finds the following facts: The summons was issued out of Superior Court, Mecklenburg County, 15 September, and was duly served on the defendant on 15 September, and that on the said day and at the time of issuing summons, tbe complaint or petition in tbe cause was filed, and a copy of same was, as prescribed by law, served on tbe defendant witb service of summons, thereupon completing service. "Whereupon, thereafter, on 18 September, through his counsel, Tom P. Jimmison and A. A. Tarlton, defendant filed answer to the complaint; thereupon, pleadings being-made up before this court, same is transferred by the clerk of this court for trial, and upon demand on defendant to exercise his preference as to setting, the case was set down for trial peremptorily Tuesday, 12 October, 1937, in Regular Civil Court, Mecklenburg County, and on the morning of 12 October, when the case was called for trial, defendant made the above motion. Motion overruled, exception. The court stating to defendant, after selection of the jury, that he has right to demur ore tenus to the complaint or petition on the ground that it either did not state the cause of action, or that jurisdiction of the Superior Court is not good. After selection of the following jury: (naming them), and in the absence of the jury, the defendant through his counsel Jimmison and Tarlton demurs ore tenus to the cause of action and complaint of the plaintiff, and moves to dismiss for the following reasons:

“1. That it does not appear of record that plaintiff was required to procure an order permitting him to sue in forma pauperis, or give any bond, or make deposit for costs before the alleged cause of action was instituted, as required by C. S., 493. Overruled; exception.

“2. That it does not appear of record that an injunction was required by the court, or given by the plaintiff or complainants as a condition precedent to the issuing of injunction, as required by C. S., 854. Overruled; exception.

“3. That the complaint does not state facts sufficient to constitute a cause of action, for that it fails to'allege that the defendant is doing or permitting to be done some act, the commission or continuance of which during the litigation would produce irreparable injury to the plaintiff; that said complaint does not allege that the defendant is doing, procuring or suffering some act to be done in violation of the rights of the plaintiff, pertaining to the subject of the action, and tending to render a judgment against defendant ineffectual, that the complaint does not allege that the defendant threatens, or is about to remove, or dispose of his property with intent to defraud the plaintiff, and the complaint utterly fails to allege that the defendant is insolvent, as required by the Consolidated Statutes, before temporary injunction may issue. C. S., 843. Overruled; exception.

“4. That the complaint does not state facts sufficient to constitute a cause of action, for that the alleged cause of action is based upon a statute that is unconstitutional and void, for that it disseizes the defendant of his freehold, liberties, privileges, and deprives him of his property without due process of law, which is in violation of the rights guaranteed to him by the Constitution of North Carolina, Article I, section 17. Overruled; exception.

“5. That the complaint in the above entitled action does not state the facts sufficient to constitute cause of action, for that the statute upon which the alleged cause of action is based deprives the defendant of his liberty and property, without due process of law, in violation of the rights guaranteed to him under United States Constitution, Article XIY, section 1. Overruled; exception.”

It appears from the record that after the complaint and answer were filed the defendant exercised “his preference as to setting, the case was set down for trial peremptorily Tuesday, 12 October, 1937.” It is well settled in this jurisdiction that the time set for trial of the case is in the sound discretion of the trial judge.

C. S., 518, is as follows : “If objection is not taken either by demurrer or answer, the defendant waives the same, except the objections to the jurisdiction of the court and that the complaint does not state facts sufficient to constitute a cause of action.”

The defendant by filing an answer to the complaint in the Superior Court did not waive his right to demur ore tenus to the complaint on the ground that the court had no jurisdiction of the action and that the complaint does not state facts sufficient to constitute a cause of action. Finley v. Finley, 201 N. C., 1 (3).

All objections except those on the ground that the court has no jurisdiction of action, and that the complaint does not state facts sufficient to constitute a cause of action, are waived unless they are taken by demurrer or answer. But the exceptions referred to may be taken advantage of by demurrer even in the appellant court. Clements v. Rogers, 91 N. C., 63 (64).

The court below ruled on defendant’s demurrer ore tenus that it had jurisdiction of the action and the complaint set forth a cause of action.

The defendant moved to dismiss the action because plaintiff did not comply with C. S., 493, and give bond.

C. S., 3181, supra, in part says: “In such action the court, or a judge in vacation, shall . . . allow a temporary writ of injunction without bond.” The undertaking in injunction proceedings, O. S., 854, is not applicable. The refusal of the trial judge to require a prosecution bond is not appealable. Christian v. R. R., 136 N. C., 321.

We think the allegations of the complaint and evidence plenary, and state facts sufficient to constitute a cause of action. That Art. I, sec.' 17, of the Const, of N. C., and Art. XIY, sec. 1, of the Const, of the United States, are not impinged by the statute under which this action is brought. S. v. Webber, 107 N. C., 962, has no bearing on this case. In that case the municipal corporation (Asheville) had no power to pass tbe ordinance under which defendant Webber was convicted. The present action is under a State statute and is constitutional in the exercise of the police power. Daniels v. Homer, 139 N. C., 219, where the matter is thoroughly discussed by Clark, C. J.

In People ex rel. Lemon v. Elmore, 256 N. Y., 489, it is held: “A statute authorizing courts of equity upon sufficient proof to issue an injunction against the maintenance of a house of prostitution and to direct the closing of the building in which the nuisance was maintained, for a year, or until the owner shall give bond against the reestablishment of the nuisance, does not violate the constitutional right of trial by jury.” This case is carefully annotated in 75 A. L. R., 1292 (1298), and it is there said: “Decisions subsequent to the previous annotations on this subject have uniformly sustained the constitutionality of statutes conferring upon courts of equity power to abate a public nuisance, although the acts complained of also constitute a crime and no property rights are invaded.”

In 46 0. J., p. 796, part sec. 425 (b), it is written: “The legislature may, and sometimes does, confer upon courts the authority to condemn and confiscate the personal property used, or permitted to be used, for the purpose of maintaining the nuisance; to order the personal property used in connection therewith sold, and the proceeds to be applied in payment of the costs; and to order the premises in which the nuisance has been conducted closed for a stated period, in the absence of the giving of the bond as provided in the statute, and the payment of costs.”

(4) Did the court err in permitting the introduction of hearsay evidence of Merl M. Long and in denying the defendant the right to explain said evidence? We think not.

The defendant assigns as error the admission of certain testimony of the witness Long, solicitor of the county recorder’s court. The witness testified that numerous complaints had been made to him in his official capacity as to conditions at the defendant’s place of business. We think that such testimony was competent as corroborative evidence, under the provisions of section 3182, which provides that evidence of the general reputation of the place shall be permissible for the purpose of proving the place a nuisance. The defendant also objected to the following question: “This boy, Lanier, was working for Dr. Boyles at the filling station, was he?” Conceding, but not deciding, that the question was incompetent and the evidence hearsay, an objection to it was overruled and the witness replied: “He said he was.” The defendant made no motion to strike out this answer. The record discloses that no exception was entered at the time by the defendant to the answer of the witness, nor was any motion made by defendant to strike said answer from the record. Under these circumstances the defendant cannot now complain of error. (Ins. Co. v. Boddie, 196 N. C., 666.) If such was error it was barmless in view of tbe overwhelming mass of other evidence in the record as to the flagrant and unlawful use of the premises of the defendant.

(5) Did the court err in permitting the testimony of 0. T. MeWhirter, an insane person? We think not, under the facts appearing in the record.

The record discloses: “Motion by defendant to strike out the evidence of C. T. MeWhirter on the grounds that as it appears of record he is still an inmate, or under the supervision of, the Insane Asylum of Morganton, and that it appears of record that he was crazy at the time of the happenings he testified about. (By the court) ‘To the foregoing motion of defendant to strike out the evidence of plaintiff’s witness C. T. MeWhirter, the court having heretofore found, upon examination of the witness when placed on the stand from questions propounded and answers given, that the witness, though having heretofore been declared insane and subsequently has been released, has mental capacity to testify to the facts, and as such rules the witness to be competent,'and having previously so ruled thereupon, disallows the motion at this time to strike out the evidence of C. T. MeWhirter.’ ” This was in the sound discretion of the court below.

It is said in Lanier v. Bryan, 184 N. C., 235 (238) : “The decision (Shaw v. Moore, 49 N. C., 26), approves the doctrine that the witness should have due appreciation of a moral duty to tell the truth, and conforms to the general rule that the judgment of the trial judge on the question of competency of a person who is offered as a witness is a matter of discretion and will not be disturbed on appeal, unless there is an abuse of discretion, or unless the order admitting or rejecting the witness involves the erroneous construction of a legal principle,” citing numerous authorities.

(6) Did the court err in refusing to submit the issue tendered by the defendant? We think not.

The record discloses that the defendant tendered an issue, but that ’he did not except at the time to the refusal of the court to submit the said issue, nor did the defendant except to the issue which was submitted to the jury by the court. The defendant cannot now, after the trial and verdict, except to the refusal of the court to submit the issue which he tendered, he not having excepted thereto at the time. Greene v. Bechtel, 193 N. C., 94; McIntosh, Prac. & Proc. in Civil Cases, pp. 545-6, sec. 510.

(7) Did the court err in charging the jury? We think not.

The court charged the jury as follows: “Nuisance can be a public or private nuisance. The nuisance referred to here is a public nuisance. That is a nuisance to the public in general, hot a nuisance to one in particular. Nuisance of this character refers to public nuisance, that is one that is detrimental to the public. A nuisance within the meaning of this statute means — anything which works hurt, inconvenience or damage to another, or which essentially interferes with the enjoyment of life or property to the public in general, near or about the premises. The fact that the acts done may be otherwise lawful does not keep it from being a nuisance.” The charge must be considered contextually and not disjointedly. Taking the charge as a whole, we do not think the above excerpt, if error, is prejudicial. It is the combination of the “acts done” that may become a nuisance and the evidence of such is abundant on this record.

(8) Did the court err in refusing to allow the defendant to give bond to abate any nuisance? ¥e think not.

C. S., 3186, says, in part: “The court may, if satisfied of his good faith, order the premises closed under the order- of abatement to be delivered to said owner, and said order of abatement canceled’so far as same may relate to said property.” Under the above statute this was in the sound discretion of the court below.

Schenck, J., while on the Superior Court bench, tried the case of S. v. Everhardt, 203 N. C., 610. His charge as to what constituted a public nuisance was affirmed by this Court. In that case we cited many authorities, among them (at p. 618) Clark’s Crim. Law (2d Ed.), Hornbook Series, part sec. 115, at p. 345, where it is said: “To constitute a public nuisance, the condition of things must be such as injuriously affects the community at large, and not merely one or even a very few individuals. . . . (p. 346). Whatever tends to endanger life, or generate disease, and affect the health of the community; whatever shocks the public morals and sense of decency; whatever shocks the religious feelings of the community, or tends to its discomfort — is generally, at common law, a public nuisance, and a crime. . . . (p. 348). Disorderly houses, including houses of ill fame and drinking or tippling houses, kept in such a ivay as to annoy and scandalize the public, are nuisances at common law.”

The facts in the present case are similar to those in the Everhardt case, supra. The defendant in the present case could have been indicted and convicted of the same offense alleged and proved in the Everhardt case, supra. C. S., chapter 60, “Nuisance Against Public Morals,” under which defendant was tried, provides for the abatement of a nuisance. “An order of abatement shall be entered as a part of the judgment in the cause, which order shall direct the removal from the building or place of all fixtures, furniture, musical instruments, or movable property used in conducting the nuisance, and shall direct the sale thereof in the manner provided for the sale of chattels under execution, and the effectual closing of the building or place against its use for any purpose, and so keeping it closed for a period of one year, unless sooner released,” etc. C. S., 3184, “Padlocking” is a rigorous legal catbartie, but, just as in tbe case of tbe individual, so in society; at times violent dosages are necessary to rid tbe body of poisons, also tbe cancer on tbe body politic must be removed and destroyed.

Tbe jury found that tbe defendant Dr. M. P. Boyles, trading and doing business as “Greenwich Tillage,” conducted and operated a place of business in sucb a way as to constitute a nuisance. Tbe facts, as developed by plaintiff, show tbe social viciousness of tbe enterprise. Dr. Boyles was previously convicted of failure to keep proper narcotic records, and was sent to tbe Federal Prison at Atlanta. Receiving a pardon after only five months, be returned to Charlotte, built “Greenwich Village” in a thickly settled community on Wilkinson Boulevard. This tourist camp quickly developed into a nest of vice, pandering to tbe lowest and most animal qualities of men and women. Here there was a filling station, a drug store, a physician and surgeon’s office, a dining room and a kitchen. In tbe front of tbe building there was a dance ball with music from tbe piccolo. Wine and beer were sold openly, and only slightly less open was tbe sale of suppositories for tbe prevention of conception. Liquor was sold there and defendant was a doctor and bad theretofore been convicted of selling morphine. Tbe twelve tourist cottages and two parking lots became an inviting assignation place. Taxicabs from Charlotte plied back and forth — always tbe same story, a man and woman retiring to a cottage for forty or forty-five minutes, then returning to tbe cab. On several occasions tbe rural police raided this citadel of iniquity. Tbe revolting scene which greeted them was peopled with fighting and drunk men and women, with many of both sexes nude or indecently clad. There was fighting, yelling and cursing and ribald and indecent profanity on tbe part of both men and women. Sucb conduct continued throughout tbe night. This roadhouse was open day and night and on tbe Sabbath. This was tbe history of tbe spot from tbe time it was created by tbe defendant. One witness testified: “I have been living there about nine years. Tbe general reputation of Greenwich Village is bad. I have seen cars with N. 0. tags on them, from early morning until all times of tbe night since tbe place opened up, going into tbe cabins, staying thirty to forty-five minutes, just a boy and girl. A drunken man and woman went into tbe cabins about six o’clock. ... I went to put my car up, saw a woman stumble over tbe children’s playthings, she was so drunk it frightened them. They would wake me up anywhere from eleven at night until six in tbe morning. I have beard profanity of tbe worst type. I would say tbe people I saw were from eighteen to twenty-five years old. . . . I saw a couple go into tbe cabins two months ago, got out of a taxicab. Tbe driver waited for them about forty-five minutes.” This testimony was corroborated by many. Numerous witnesses swore that tbe general reputation of tbe place was bad.

From all tbe evidence on tbe part of plaintiff, it was shown that defendant was maintaining a roadhouse on a congested highway in a populated neighborhood and a few miles from the city of Charlotte; the defendant’s place of business was one where liquor was sold flagrantly and in large quantities and in violation of law; the defendant permitted-the cabins on his premises to be utilized for the purpose of prostitution, lewdness, and assignation; the defendant permitted taxicabs to bring young girls and boys from the city of Charlotte and from other towns and to use his premises for the purpose of immorality and adultery; the' general conditions in and around defendant’s place of business were detrimental to public morals and were an affront to the good citizens in the neighborhood and community in which the said place was located; under all the evidence the jury was justified in holding that the defendant was maintaining and conducting a nuisance.

Centuries ago the Almighty entered a judgment, “destruction by fire,” against two cities in the plain of the Jordan. Today the fire of the law must sometimes be applied by upright citizens to the Sodoms and G-omorrahs that have sprung up along our highways, creating nuisances against public morals. In an age in which the respect for law and order has well-nigh withered away, the power of righteous indignation which springs from deep moral convictions, it is encouraging to find patient and long-forbearing, but upright, citizens aroused against cancerous growths on our social body. They will find the processes of the law ever ready and adequate for such social surgery, all too often necessary to the wholesome health of society.

We see no error in the judgment of the court below.

No error.

Stacy, C. J., BaRNhill and WiNBORNE, JJ., concur in result. Sea well, J., took no part in the consideration or decision of this ease.