State Ex Rel. Wayne County Prosecuting Attorney v. Levenburg

280 N.W.2d 810, 406 Mich. 455, 1979 Mich. LEXIS 371

• Court: Michigan Supreme Court
• Decided: July 3, 1979
• Docket: Docket Nos. 59756, 60478. (Calendar Nos. 11, 12)
• Status: Published

Opinions

Ryan, J.

(to reverse). We granted leave in these consolidated cases to decide whether proof that numerous instances of accosting and soliciting for purposes of prostitution occurred at certain places is sufficient to sustain a finding that such places constitute a public nuisance subject to abatement under MCL 600.3801; MSA 27A.3801 (hereafter, abatement act). We hold that it is and reverse the Court of Appeals.¹

The pertinent facts of these proceedings can be found in Justice Kavanagh’s opinion. We write separately because we do not agree with his analysis of the law applicable to these cases.

Justice Kavanagh finds that this Court’s recent decision, State ex rel Wayne County Prosecutor v Diversified Theatrical Corp, 396 Mich 244; 240 NW2d 460 (1976), strictly limits the application of the abatement act to houses of prostitution, assignation or lewdness where sexual acts are committed. We do not agree, and read that decision as standing solely for the proposition that motion picture theatres may not be enjoined from showing obscene films under the abatement act.

MCL 600.3801; MSA 27A.3801 provides in pertinent part:

"Any building, vehicle, boat, aircraft or place used for the purpose of lewdness, assignation or prostitution or gambling, or used by, or kept for the use of prostitutes or other disorderly persons, * * * is hereby declared a nuisance and * * * shall be enjoined and abated as hereinafter provided, and as provided in the court rules. Any person, or his servant, agent or employee who shall own, lease, conduct or maintain any building, vehicle or place used for any of the purposes or by any of the persons above set forth or where any of the acts above enumerated are conducted, permitted or carried on, is guilty of a nuisance.” (Emphasis supplied.)

The difficulty in interpreting the meaning of the statutory phrase, "lewdness, assignation or prostitution” as used in this act, and determining its applicability to the facts before us, stems from dictum in Diversiñed which states that this statute "* * *. was intended to apply to houses of prostitution * * *”² and that lewdness and assignation are both synonymous with prostitution.³ We do not accept this dictum as controlling these cases.

Diversiñed involved an attempt to apply the abatement act to motion picture theatres showing obscene films. The opinion held that the statute was not intended to apply to motion picture theatres where sexual acts are not committed but are portrayed on the screen. In reaching that decision the Court reviewed decisions of other jurisdictions involving apparently similar statutes to determine whether "obscenity” fell within the purview of the statutory phrase "lewdness, assignation or prostitution”, and found it did not. In the course of its review, which appears to have focused primarily on whether obscenity is lewdness, the Court quoted an Illinois appellate court decision which stated that lewdness could not be equated with obscenity, but must be synonymous with prostitution, when the former term was found in a statute prohibiting the use of premises for the purpose of lewdness, assignation or prostitution. In addition, the Illinois court stated, after noting other possible, innocent definitions of assignation, that this term also was synonymous with prostitution.⁴

We find that, in order to determine whether instances of accosting and soliciting for purposes of prostitution constitute prohibited conduct under MCL 600.3801; MSA 27A.3801, we must focus on the meaning of the statutory term "assignation”, rather than focusing on the term "lewdness” as Justice Kavanagh does, and determine whether assignation is synonymous with the statutory term "prostitution”.

In seeking to determine the definition of the statutory term "assignation”, we note that this Court has long recognized that the primary rule governing the interpretation of statutes is to ascertain and give effect to the intention of the Legislature and that in this process, "effect must be given, if possible, to every word, sentence and section”. Grand Rapids v Crocker, 219 Mich 178, 182; 189 NW 221 (1922). Consequently, if the term "assignation” has a meaning distinct from the term "prostitution”, we must give effect to that meaning in order to effectuate the Legislature’s intention in enacting this statute.⁵

Assignation is not statutorily defined, and a review of Michigan case law has disclosed no precedent which has finally and authoritatively defined that term. We read the definition of this term found in Diversified as dictum and hold it does not control the instant cases which do not involve the showing of obscene films but do involve conduct substantially connected with prostitution.

Because we find no statutory definition or controlling judicial definition of this term, we comply with the legislative directive to construe words used in statutes according to common and approved usage,⁶ and look to the common meaning of the term "assignation” to resolve the question before us.

Webster’s Third New International Dictionary Unabridged (1966 ed), p 132, defines assignation as "an appointment of time and place for a meeting [especially] for illicit sexual relations”.

The Random House Dictionary of the English Language: The Unabridged Edition (1969 ed), p 90, defines the term as "an appointment for a meeting, [especially] a lover’s secret rendezvous; a lover’s tryst”.

Finally, the term "assignation” is given the following definition, in 6A CJS, Assignation, p 582:

"The word is defined as meaning an appointment of time and place for meeting or interview; used chiefly of love interviews and now commonly in a bad sense.”

Consistent with these definitions, we find that the term assignation as used in the abatement act encompasses instances of accosting and soliciting for purposes of prostitution because such instances involve the making of an appointment for the purpose of prostitution.⁷ We find that limiting this definition to the making of an appointment for the purpose of prostitution is consistent with the apparent legislative intent to eliminate the use of property in connection with prostitution; avoids prohibiting innocent conduct which is of the nature of assignation; and is consistent with the rule of noscitur a sociis.⁸

The judgment of the Court of Appeals is reversed and the decision of the trial court reinstated in each of these cases.

Coleman, C.J., and Williams and Fitzgerald, JJ., concurred with Ryan, J.

Kavanagh, J.

(for affirmance). The question in these consolidated cases is whether proof that soliciting and accosting occurred on the premises is sufficient to regulate a place as a public nuisance under the "red light abatement act”, MCL 600.3801; MSA 27A.3801. ¹ The trial court in each case held that it is, and the Court of Appeals reversed. We affirm the Court of Appeals.

Each cause was commenced upon a complaint filed by the Wayne County Prosecutor’s office. A lengthy trial was held in Levenburg. There was testimony that prostitutes frequented Anderson’s Gardens, a bar located in the City of Detroit, and solicited sexual acts to be performed elsewhere. The trial court made findings of fact that within 30 days prior to the filing of the complaint, soliciting and accosting had occurred on the premises. The court also found that during the period from January 1, 1971 to July 1, 1974, over 160 arrests for soliciting and accosting on the premises were made. Based on these findings, the trial court found Anderson’s Gardens to be a place used by prostitutes and used for the purpose of assignation, and thus subject to abatement under the statute, The court permanently enjoined the defendants from permitting the bar to be used for the purpose of assignation.

On appeal, the Court of Appeals reversed. The trial court’s interpretation of " 'assignation’ as including the making of an appointment for purposes of prostitution, and thus including the act of soliciting for prostitution” was held to be erroneous. 75 Mich App 90, 93; 254 NW2d 797 (1977). Relying on this Court’s opinion in State ex rel Wayne County Prosecutor v Diversified Theatrical Corp, 396 Mich 244; 240 NW2d 460 (1976), the Court held that the premises must be a house of prostitution in order for the abatement act to be applied properly, and a bar wherein no sexual acts for profit occur is not such a place.

Richmond involves an appeal from the trial court’s denial of defendant’s motion for summary judgment. The defendant argued in support of the motion that the Willis Show Bar, holder of a Class C liquor license, is not a "house of prostitution” as the term was used in Diversiñed', supra. The trial court rejected the argument, finding the act applicable to places where acts of soliciting and accosting occur. A majority of the Court of Appeals reversed, holding "the Willis Show Bar is not a house of prostitution”. 77 Mich App 41, 45; 257 NW2d 759 (1977).

In Diversiñed, supra, this Court addressed the scope of the abatement statute in the course of determining the question of whether the statute was intended to apply to motion picture theatres exhibiting obscene movies. Citing several decisions in other states,² we found that the statute is " 'directed to the abatement of * * * houses of lewdness, assignation, or prostitution’ ”, and that the terms "lewdness, assignation, and prostitution” are synonymous. 396 Mich 248-249. Accordingly, we held that the abatement statute "was intended to apply to houses of prostitution and not motion picture theatres where sexual acts are not committed but are portrayed on the screen”. 396 Mich 246 (emphasis added).

Appellant now urges us to give a narrow reading to the Diversiñed opinion, and apply the abatement act to bars where sexual acts are not committed but are solicited for performance elsewhere. Two basic arguments are advanced in support. It is asserted that a "house of prostitution” is not limited to premises where sexual acts are committed. Rather, the term should be defined broadly and equated with the definition of a "disorderly house” found in People v Thrine, 218 Mich 687, 691; 188 NW 405 (1922):

" 'A disorderly house, in its restricted sense, is a house in which people abide, or to which they resort, disturbing the repose of the neighborhood; but in its more enlarged sense it includes bawdy-houses, common gaming-houses, and places of like character, to which people promiscuously resort for purposes injurious to the public morals, or health, or convenience, or safety. Nor is it essential that there be any disorder or disturbance in the sense that it disturbs the public peace or the quiet of the neighborhood. It is enough that the acts there done are contrary to law and subversive of public morals, and the result is the same whether the unlawful acts are denounced by the common law or by statute.’ ”³

As is apparent from this definition, a house of prostitution, or bawdy-house, is a disorderly house, but not all disorderly houses are houses of prostitution. ”A house of prostitution is one in which a prostitute plies her trade”. 73 CJS, Prostitution, § 1, p 226. Prostitution, the trade of the prostitute, commonly refers to the performance of sexual acts for compensation. Soliciting and accosting and prostitution itself are different and distinct concepts, MCL 750.448; MSA 28.703.⁴ Recognizing the distinction customarily drawn, the Alabama Court of Criminal Appeals recently held a complaint alleging the defendant "did prostitute herself by making an offer to indiscriminate lewdness” did not charge prostitution, Holloway v Birmingham, 55 Ala App 568; 317 So 2d 535 (Ct Crim App, 1975), cert den 294 Ala 759; 317 So 2d 541 (1975). The Court stated, 55 Ala App 574:

"Here appellant made a solicitation to perform a natural and an unnatural sex act for a named sum of money. The proposition got no further than that. There was no bedroom affair, no disrobing, no touching of the bodies, no money paid, and no sexual activity. In short, the crime of prostitution was not committed.” (Emphasis added.)

We hold that in order to constitute a "house of prostitution” a place must be one in which sexual acts are committed for compensation. Premises where soliciting and accosting but no sexual acts occur are not houses of prostitution and cannot be closed pursuant to the abatement statute.

Appellant also argues that limiting the applicability of the abatement statute to houses of prostitution, and requiring that sexual acts occur on the premises, ignores the effect the Legislature intended to give the terms "lewdness” and "assignation”.

These terms are not defined in the statute. In Diversiñed we ascribed to those words a meaning we found "clear in light of the history and purpose of these [abatement] statutes”.. 396 Mich 250. Citing State, ex rel Murphy v Morley, 63 NM 267; 317 P2d 317 (1957), we said that the statutory term " lewdness’, applies only to acts of assignation or prostitution”.⁵ 396 Mich 248-249. Similarly, in accordance with the rule of noscitur a sociis, we read both "lewdness” and "assignation” as being synonymous with prostitution.

Appellant claims that, despite the definition in Diversified, "lewdness” cannot be wholly limited by the meaning of the term "prostitution”. Rather, lewdness should be given a meaning which comprehends the activity of soliciting and accosting. It is argued that solicitation is inextricably associated with prostitution and is a cognate activity⁶ to which the abatement statute should properly be applied.

We disagree, for we are satisfied that such argument misperceives the nature of "cognate” activities. The cognate activities which could properly be embraced would have to be sexual acts of some sort.

In Chicago v Geraci, 30 Ill App 699; 332 NE2d 487 (1975), an Illinois appellate court reached the question of whether a masturbatory massage parlor is a house of prostitution under the Illinois abatement statute. In determining that it was, the court assigned the following interpretation to the term "lewdness”, 30 Ill App 3d 704:

"Although traditionally the term 'lewdness’ is viewed as being broader than and including the term 'prostitution,’ (People v Lackaye, 348 Ill App 542; 109 NE2d 390 [1952]; opinion adopted by Illinois Supreme Court, 1 Ill 2d 618; 116 NE2d 359 [1953]) such terms refer to the same general class of activities which are normally associated with houses of prostitution (or whatever such establishments may be called). They are intended to designate and prohibit sex acts of whatever nature which are performed for money. ” (Emphasis added.)

Solicitation for purposes of prostitution is not covered under the rubric of "lewdness”, as it is not a sexpal act. At most, solicitation is the offer to perform a sexual act for compensation. Establishments used to solicit or offer to perform elsewhere the acts covered by the statute cannot be closed pursuant to it. See State ex rel Washtenaw County Prosecuting Attorney v Western Union Telegraph Co, 336 Mich 84; 57 NW2d 537 (1953).

In accordance with our opinion in Diversiñed, we hold that the abatement statute applies only to houses of prostitution, assignation or lewdness, as places where sexual acts are committed.

The Court of Appeals is affirmed.

Levin, J., concurred with Kavanagh, J.

1 We note that leave was granted in these cases for the limited purpose of deciding this issue. However, we acknowledge that a judgment for abatement in a prosecution of this nature cannot be rendered without a finding of knowledge of the accosting and soliciting on the part of the owners or operators of the place found to be a nuisance and their acquiescence in those activities.

Such a finding was made by the trial judge in the Levenburg case. No such finding has yet been made in the Richmond case because the trial has not yet taken place. The Richmond case is before us on an appeal from a denial of defendant’s motion for summary judgment.

2 396 Mich 244, 246; 240 NW2d 460 (1976).

3 396 Mich 244, 249; 240 NW2d 460 (1976).

4 396 Mich 244, 249; 240 NW2d 460 (1976), citing People v Goldman, 7 Ill App 3d 253; 287 NE2d 177, 178-179 (1972). Goldman involved an unsuccessful attempt to abate the display and dissemination of pornography and the promotion of a "Swingers Club” pursuant to a statute prohibiting the use of all buildings and places for the purposes of lewdness, assignation or prostitution. The opinion does not indicate that any accosting and soliciting occurred on the premises.

5 See People ex rel Wayne Prosecuting Attorney v Sill, 310 Mich 570, 575; 17 NW2d 756 (1945), as cited in Diversified, 396 Mich 244, 248; 240 NW2d 460 (1976), where this Court acknowledged that one of the purposes of this statute is to effectively eliminate the use of property, real or personal, in connection with prostitution.

6 MCL 8.3a; MSA 2.212(1).

7 We note that this definition has been accepted by lower appellate courts in other jurisdictions.

In Garrison v Menendez, 158 So 2d 856, 859 (La App, 1963), writ refused 245 La 643; 160 So 2d 229 (1964), the court found that solicitation for prostitution was an activity included in the ordinarily understood dictionary definition of assignation.

In State v Baldino, 11 NJ Super 158; 78 A2d 95 (1951), the court noted, in dictum, that while defendant could not be convicted of maintaining a place for the purpose of prostitution when it was shown no illicit sexual acts were performed on his premises, he might have been indicted for maintaining a house of assignation due to the use of his establishment for facilitating of appointments for indulgence in illicit sexual intercourse.

Finally, the court in People v Bayside Land Co, 48 Cal App 257; 191 P 994 (1920), appeared to accept the trial court finding that no acts of prostitution or assignation were actually committed on certain premises where acts of sexual intercourse were solicited while finding these activities were still prohibited as falling within the term "lewdness”. Yet the court proceeded to use the term "assignation” in a manner that can only be. understood to be consistent with the meaning we give this term today when it said:

"It appears from the record that a party of some nine persons, among whom were the investigators from the office of the district attorney, were at the Tower Cafe (the premises involved in this suit) and while there made an assignation to repair to the other place

where rooms might be obtained, and where, as stated by one of the women, 'they could have a real party.’ Pursuant to the assignation made on the premises, they did go to the Seal Inn, and there rented rooms, and some of them indulged in lewd acts. Probably the court

admitted this testimony for the purpose of ascertaining whether or not the purpose of the assignation so made was consummated.” (Emphasis supplied.)

8 Noscitur a sociis is defined in Black’s Law Dictionary (4th ed), p 1209, to mean:

"It is known from its associates. * * * The meaning of a word is or may be known from the accompanying words.

"The doctrine means that general and specific words are associated with and take color from each other, restricting general words to sense analogous to less general.” (Citations omitted.)

1 The statute provides in part:

"Any building, vehicle, boat, aircraft or place used for the purpose of lewdness, assignation or prostitution or gambling, or used by, or kept for the use of prostitutes or other disorderly persons, * * * is hereby declared a nuisance and * * * shall be enjoined and abated as hereinafter provided, and as provided in the court rules.”

2 See People v Goldman, 7 Ill App 3d 253; 287 NE2d 177 (1972); State, ex rel Murphy v Morley, 63 NM 267; 317 P2d 317 (1957); State, ex rel Carroll v Gatter, 43 Wash 2d 153; 260 P2d 360 (1953); State, ex rel English v Fanning 97 Neb 224; 149 NW 413 (1914).

3 Appellant has not proceeded in either Levenburg or Richmond on the theory that these bars are nuisances under common law. See Attorney General, ex rel Optometry Board of Examiners v Peterson, 381 Mich 445; 164 NW2d 43 (1969); Dearborn National Ins Co v Comm’r of Ins, 329 Mich 107; 44 NW2d 892 (1950).

4 MCL 750.448; MSA 28.703 prohibits soliciting and accosting. It provides:

"Any person, male or female, 17 years of age or older, who shall accost, solicit or invite another in any public place, or in or from any building or vehicle, by word, gesture or any other means, to commit prostitution or to do any other lewd or immoral act, shall be guilty of a misdemeanor.” (Emphasis added.)

5 This definition of "lewdness” avoids the vagueness problems noted in Chicago v Cecola, 56 Ill App 3d 143, 148-149; 371 NE2d 955, 959 (1978):

"Upon initial inspection, the word 'lewdness’ appears to be vague and indefinite. In Miami Health Studios, Inc v Miami Beach, 353 F Supp 593 (SD Fla, 1972), the court found that a similar statute prohibiting the maintenance or operation of any place for the purpose of lewdness, assignation, or prostitution was constitutionally infirm as the language employed was too vague and indefinite, and failed to inform reasonable men as to what conduct was prohibited. However, in People v Goldman, 7 Ill App 3d 253; 287 NE2d 177 (1972), the Illinois appellate court observed that lewdness as used in the Illinois public nuisance act, which is quite similar to section 192-1 of the Municipal Code of Chicago, was in the disjunctive seriatim with the words 'prostitution and assignation,’ so that its meaning must be determined by looking to the words with which it is associated. The court concluded that the legislature must have intended 'lewdness’ to be interpreted as being synonymous with 'prostitution,’ and therefore held that the statute was not too vague. (Accord, Chicago v Geraci, 30 Ill App 3d 699; 332 NE2d 487 [1975].) In Geraci, the court adopted the same interpretation with respect to section 192-1 of the Municipal Code of Chicago. We agree with this interpretation.”

See, also, State ex rel Faches v NDD, Inc, 228 NW2d 191 (Iowa, 1975) (holding the term "lewdness”, undefined in the Iowa abatement statute, to be vague).

6 Appellant’s argument is based on the following language used by the court in Goldman, fn 2 supra, 255, and quoted in Diversiñed, 396 Mich 249:

" 'To fix purpose, we must read text in context and if a word is known by the company it keeps, then "lewdness” is synonymous with prostitution. This aid contemplates that where two or more words of analogous meaning are employed together in a statute, they are understood to be used in their cognate sense, to express the same relations, and give color and expression to each other. For example, an "assignation” could be an innocent appointment, a chaste tryst, or a rendezvous (even with destiny), at least those are meanings that can be so ascribed to it, but not here in its context with "lewdness” and "prostitution”. Thus "assignation”, a euphemism coined years ago. to protect the hypersensitive, is synonymous with "prostitution.” ’ ”