Weidner v. Friedman

126 Tenn. 677

• Court: Tennessee Supreme Court
• Decided: September 15, 1912
• Status: Published

Opinion

MR. Justice Neil

delivered the opinion of the Court.

Bills, original, amended, and supplemental, filed against certain proprietors of disorderly houses and their inmates, and the owners of some of the houses wherein the illegal business is carried on, in Chattanooga, to suppress all of the houses as nuisances by permanent injunction and to perpetually enjoin the owners from leasing the houses for such unlawful purpose. These houses are located in what is known as the “red light district” of Chattanooga, covering parts of Florence and Helen streets, most of them adjoining each other, and all near together. The bill ivas filed by private citizens owning property in the neighborhood, that is; within a block, or two or three blocks, on the ground of special and peculiar injury to them, in marring the comfort of their homes, and injuring the rental and sale value of their property. Originally there were very many complainants, but as to most of them the bills were dismissed on their own motion, and they were taxed with all of the costs accrued to that time, by the chancellor. Others entered no formal dismissal, and, while remaining nominally complainants, have really abandoned the case, so that there are now left only five active complainants. Their names are H. A. Weidner, H. Pritts, Joseph Josephs, H. Koblentz, and P. E. Tyler. A decree according to the prayer of the bill was rendered against all of the defendants, bnt only the following of them appealed to the conrt of civil appeals, viz.: J. O. 0. Garner, O. E. Pooler, Laura Hines, Bessie McBee, Ada Gnlver, Lucile Martin, Panline Miller, Nellie Gray, Sallie Smith, Lillian Sterling, and Annie Bonley. The two first were proceeded against as owners of the property, or some of it. Lanra Hines, Ada Culver, Lillian Sterling, and Annie Bonley were proceeded against as madames, or proprietors of houses, and'the others as inmates.

The court of civil appeals affirmed the decree of the chancellor, and thereupon the case was brought to this court by the writ of certiorari. It is insisted in behalf of petitioners, defendants below, that the evidence is insufficient to support the decree, that the evidence does not sustain the charge that complainants suffered any injury in person or property different in kind from that suffered by the general public, and that, in any event, the evidence does not point particularly to any one of the several defendants sued as proprietors and inmates, but only in a general way to all of the “red light district.”

It is claimed by defendants, as matter of law, that no judgment of abatement as to the individual houses can be rested on such general and indefinite evidence. On the other band, it is averred by complainants that there is evidence in terms implicating all, at least in a general way, and that this must be held to include each. Likewise the complainants put forward the proposition of law that all can be proceeded against as being jointly engaged in the commission of a nuisance, and held liable, even though no conspiracy between them be proven, on the ground that they are so near together locally, and their operations are so synchronous, that they must be treated as together creating the nuisance complained of. The rule is also invoked that, where there is a concurrence between the chancellor and the court of civil appeals, this court will not reverse, if there is any evidence to support such concurrence. It is claimed by complainants that there is evidence to support such concurrence on the point of special damage peculiar, to the complainants, as distinguished from the general public; and they point to the fact that defendants do not deny that they, respectively, are proprietors and inmates of disorderly houses on the streets mentioned.

There is no doubt that the keeping of a disorderly house is a nuisance. It was so 'at common law, and is so under our statute. It is a misdemeanor, and the ordinary remedy is in the criminal court, which court can act most effectively by fine and imprisonment, and judgment of abatement. The chancery court has only a limited jurisdiction, which is defined in Weakley v. Page, 102 Tenn., 179, 58 S. W., 551, 46 L. R. A., 552, as the power to grant relief at the suit of a private person only when he can prove special and peculiar injury to himself, different in kind from that suffered hy the general public. That case is in accord with the weight of authority in other jurisdictions. Everywhere the powers of the court are confined within the narrow limits there laid down, and some cases take even a more restricted view. We are not disposed, to expand and extend the doctrine further by construction. There would, by such course of decision, result extreme danger to the usefulness of the chancery court, the danger of overwhelming the court with a mass of litigation which would occupy its time to the exclusion of the vast range of its ordinary duties. The danger is well illustrated by the history of the present case as disclosed by this record. A preliminary injunction of a very drastic character was issued against defendants. They obeyed for a time, and left the district, that is, the “red light district,” but afterwards returned, and renewed their former way of living. Then ensued two proceedings for contempt, preserved and presented here in four large volumes, in addition to the two large volumes embracing the main case. These contempt proceedings were brought to punish defendants for resuming their unlawful business in violation of the .injunction. Fines and imprisonment were imposed. These proceedings are not distinguishable from the ordinary prosecutions against such offenders in the criminal court, except in the form of them, and the charge that they violated an injunction;, instead of the criminal law, It is easy to see how the offense could he, and would he, again and again repeated, after receiving the punishment of $50 fine, and ten days’ imprisonment, all that the chancery court can impose for a contempt. It is true that this may be said of any case in which the chancery court undertakes to suppress a nuisance, particularly any nuisance of the kind involved in the case now before us. This should be a warning to the court to he extremely careful in assuming jurisdiction of such cases, confining the exercise of its powers in this regard within the narrowest limits consistent with duty.

Should it assume jurisdiction in one hill to suppress a whole settlement of such people? We think not. The task should he left to the criminal court, where it most properly belongs. It is one thing to bring before the court a single house of the kind, with its inmates, and quite another to hale before the court a congeries of such houses, and troops of women occupying them. In the first case the court can carefully and adequately examine into and decide the question whether the single house in question has been instrumental in causing damage to nearby owners of a kind special and peculiar to them as distinguished from that done to the public at large. But where a large number of such persons are brought before the court for several such houses, it is practically impossible to apportion the blame, or to ascertain from the evidence how much each house is responsible for the special injury claimed to have been inflicted; so that it must result, as in the present case, in a contention that all must be held equally guilty, because of the fact that the number of such houses so congregated causes crowds of men and boys to gather on the streets and go in and out of these resorts, the use of profane and vulgar language in the streets’ by men who gather there, the traipsing of the women, denizens of such houses, from one house to the other, or along the street, in pursuit of a man or men, the occasional exposure of person on the part of some woman in a house or houses not identified or distinguished from the mass of houses; in short, a jumbled aggregation of general evidence directed to no house in particular, but to all of the houses as an assemblage of illegal resorts. Relief in such a case must necessarily rest upon the postulate that the chancery court has power to break up and destroy such a nest of vice, although it is unable to see from the evidence from what special house the injury proceeded which is the necessary prerequisite to give the court jurisdiction. The task is too much for the chancery court. It cannot accomplish it. On the other hand, it can be accomplished by the criminal court. There no special damage to private persons need be proven. The crime of conducting a disorderly house, or of acting as inmates of one, or of renting a house to be used for such purpose, is all that need be proven. All persons so offending can be punished, not merely by a small fine and short imprisonment, but by heavy fines and imprisonment for any term less than twelve months, and the houses can be broken up.

We have proceeded thus far without mentioning another objection to complainants' claim to relief in the chancery court, if the other objections mentioned were out of the way. That is laches. This “red light district” has been in operation in Chattanooga twenty-five or twenty-sis years, according to the witnesses for complainants themselves; some witnesses say, from thirty to forty years. Parties who apply to a court of chancery for injunctive relief must apply promptly, on the penalty of refusal to entertain the hill because of laches. In Caldwell v. Knott, 10 Yerg., 210, 212, where the nuisance complained of was a milldam, the court held that a delay of ten years, without more, was too much, and the court referred with approval to the case of Weller v. Smeaton, 1 Cox, 103, and Reid v. Gifford, 6 Johns. Ch. (N. Y.), 19, wherein it was held that three years’ delay was too long. These cases were referred to and approved in the case of Madison v. Copper Co., 113 Tenn., 331, 351-355, 83 S. W., 658, in which many other cases were cited showing that even a much shorter time would serve to bar relief in equity under peculiar facts; and it was said in that case (p. 355) that, although the defense of laches had not been raised in the lower court by the parties, this court could itself raise it when it appeared on the record. In the present' case there was a delay of, not three years, or of ten years merely, but for more than a quarter of a century.

The result is that the original, amended, and supplemental bills must be dismissed as to the complainants still remaining before the court. The dismissal of the said bills will have no effect upon the contempt proceedings. It was the duty of defendants to obey the injunction, and their failure to do so vas a contempt of court for which they should be punished. We are of the opinion, however, that the imprisonment should be remitted, because the injunction order was such as would have been superseded, if timely application had been made therefor, since by this order the chancellor decided on the application for a temporary injunction the merits of the cause in advance of a hearing thereon.

The cause will be remanded to the chancery court of Hamilton county for the enforcement of the judgment for contempt, as herein modified, and with directions to dismiss the bills when these matters are finally disposed of.

The defendants found guilty under the respective contempt proceedings will pay the costs of these proceedings in the chancery court in so far as they are un-adjudged. Defendants to tbe respective contempt proceedings in this court will pay the costs of this court and the court of civil appeals.

The complainants still remaining such in the record will pay all of the unadjudged costs of the chancery court. The five active complainants, who have prosecuted the original cause in this, court, and in the court of civil appeals, will pay the costs of said original case in both courts.

It follows that the decrees of the court of civil appeals and of the chancellor in the main case are reversed, while the judgments of both of-these courts in respect of the contempt proceedings are modified and affirmed.