MOORE v. STATE, 181 S.W. 438

PHILLIPS, C. J. The certificate of the honorable Court of Civil Appeals, with the question submitted, is as follows: “This is an appeal by Mrs. J. F. Moore and W. C. Blackmon from the following order of the district court of Tarrant county; ‘It is therefore ordered, adjudged, and decreed by the court that the said defendants, Mrs. J. F. Moore and W. C. Blackmon, are hereby temporary [temporarily] enjoined from using the house known as 1205% Houston street in the city of Ft.

Worth for the purpose of keeping, or being interested in the keeping of a bawdy or disorderly house therein.’ The trial court made no findings of fact, but the evidence is sufficient to support the conclusion that appellant W. C. Black-mon, who was the rental agent of appellant Mrs. Moore, knowingly permitted the house to be used for the purpose prohibited by law. There is nothing in the evidence to indicate that he was otherwise concerned in the keeping of such house further than such knowledge upon his part that the house was being so used made him interested in the same. As to appellant Mrs.

Moore, the evidence fails to show any connection whatever with tbe keeping of the house, or that she knowingly permitted the same, unless the knowledge of her agent Blackmon should, in law, be imputed to her and render her also liable. (For a fuller statement of the evidence and as explanatory of our question reference is made to the brief statement of facts.) “We, therefore, certify to your honors whether or not, under the act of the Thirtieth Legislature (1907, p. 246), authorizing the enjoining of ‘the habitual, actual, threatened, or contemplated use of any premises, place, building, or part thereof, for the purpose of keeping, being interested in, aiding or abetting th.e keeping of a bawdy or disorderly house,’ the writ in this instance was properly issued?” The action appears to have been brought by the county attorney under articles 4689 and 4690 of the Revised' Statutes of 1911, which read: “Art. 4689. * * * The habitual, actual, threatened or contemplated use of any premises, place, building or part thereof, for the purpose of keeping, being interested in, aiding or abetting the keeping of a bawdy or disorderly house, shall be enjoined at the suit of either the state or any citizen thereof.

Any person who may use, or who may be about to use, or who may aid or abet any other person in the use of any premises, place or building or part thereof, may be made a party defendant in such suit; provided, that the provisions of this and the succeeding

article shall not apply to nor be so construed as to interfere with the control and regulation of bawds and bawdyhouses by ordinances of incorporated towns and cities acting under special charters and where the same are actually confined by ordinance of such city within a designated district of such city. “Art. 4690. ■* * * The Attorney General and the several district and county attorneys shall institute and prosecute all suits that said Attorney General or such district or county attorney may deem necessary to enjoin such use; provided, that such suit may be brought and prosecuted by any one of such officers; and provided, further, that nothing in the above proviso contained shall prevent such injunction from issuing at the suit of any citizen of this state who may sue in his own name; and such citizen shall not be required to show that he is personally injured by the acts complained of; and the procedure in all cases brought hereunder shall be the same as in other suits for injunction, as near as may be; provided, that, when the suit is brought in the name of the state by any of the officers aforesaid, the petition for injunction need not be verified.” These articles are from the act- of 1907, (Acts 1907, p. 246).

The present criminal statute in relation to the keeping of bawdyhouses (article 500 of the Penal Code, as amended by the same act) reads; “Any person who shall, directly or as agent for another, or through any agent, keep or be concerned in keeping, or aid or assist or abet in keeping, a bawdyhouse or a disorderly house, in any house, building, edifice or tenement, or shall knowingly permit the keeping of a bawdy-house or a disorderly house in any house, building, 'edifice or tenement owned, leased, occupied or controlled by Mm, directly as agent for another, or through any agent, shall be deemed guilty of keeping, or being concerned in keeping, or knowingly permitted to be kept, as the case may be, a bawdyhouse or a disorderly house, as the ease may be, and, on conviction, shall be punished by a fine of two hundred dollars, and by confinement in the county jail for twenty days for each day he shall keep, be concerned in keeping or knowingly permit to be kept, such bawdy or disorderly house.” In answering certified question our practice is to confine ourselves to the statement of the ease as contained in the certificate of the Court of Civil Appeals, since it must be assumed that it embodies the essential facts upon which the certified question is predicated.

We customarily decline to look to the statement of facts, if it accompanies the certificate; and we shall therefore determine the present question simply upon the facts recited in the certificate. As to the defendant Blackmon, under the statement of the Court of Civil Appeals that the evidence adduced upon the hearing was sufficient to warrant the conclusion that, as the agent of the owner of the premises, he knowingly permitted the house to be used for the unlawful purpose, we think there can be no question as to the injunction having been properly issued.

Penal Code, art. 000, attaches criminal liability to any one who shall, “as agent for another,” keep or knowingly permit the keeping of a bawdyhouse in any house leased or controlled by him. The Court of Criminal Appeals has held that knowingly permitting the keeping of such a house is simply a method of committing the offense of “keeping,” and is not in itself a distinct offense. Willis v. State, 34 Tex. Cr. R. 148, 29 S. W. 787; Schulze v. State (Cr. App.) 56 S. W. 918.

Under this ruling, the evidence in relation to Blackmon would have made him subject to criminal prosecution for keeping a disorderly house by knowingly permitting it to be kept for that purpose. From the nature of the act of 1907, which comprises the articles we have quoted, it inevitably follows that any one subject to prosecution for keeping a bawdyhouse, under the Penal Code, is subject to an injunction, under

article 4689, for the purpose of restraining such unlawful use of premises. It is hardly logical to conclude that this statute, enacted in aid of the criminal law, is narrower in its operation than the criminal statute, and is without application to one amenable to the criminal law on the same subject.

Whether the injunction rightfully issued against the defendant owner of the premises, who, prior to the institution of the suit, appears to have had no knowledge that they were being used for the wrongful purpose, presents a miore difficult question; but, after a careful consideration, in the light of general principles and the statute, we are convinced that she was, at least, a proper party to the proceeding, and the issuance of an injunction running against her, as well, was therefore not unauthorized.

If this had been a criminal prosecution against the owner, knowledge on her part of the unlawful use of the premises would clearly have been essential to justify conviction. But the proceeding was not of that nature. It was a civil suit for the suppression of a public nuisance by means of a civil remedy. The object of the statute would be defeated if the elements necessary to constitute the criminal offense must exist in order for it to apply. Its purpose was a broad one, and it should be given a construction which is consonant with that purpose. At this place it is well to recur to the holding in Marsan v.

French, 61 Tex. 173, 48 Am. Rep. 272, the opinion having been rendered by Judge Stayton, a case wherein damages were sought against an owner of premises which it was charged he permitted to be used for the purposes of prostitution to the injury of the plaintiff, whose home was adjacent, and in which by the charge of the court a recovery for the jilaintiff was authorized only upon its being proved to the satisfaction of the jury that the defendant not only let the premises to prostitutes knowing them to be such at the time, but that he rented them to such persons for such use, etc.

In commenting upon the charge, it was said: “This charge was more favorable to the appellant than a correct application of the law would justify. * * * The rules applied by the court in this ease were such as would be applicable in a criminal prosecution for letting premises to be used as a place of prostitution, and it may well be questioned whether rules so stringent should be applied in civil causes, in which questions of knowledge and intent are often of but little or of no importance.” It is the “use” of premises for the unlawful purpose named, habitual, actual, threatened, or contemplated, at which

article 4689 is leveled. It is such “use” which it is designed to prevent by the civil remedy which it supplies. It is altogether an impersonal statute. It is not a statute in relation to parties to suits, and does not attempt to prescribe who shall constitute the parties defendant to the injunction proceeding which it authorizes. It contains a provision that any person who may use, or be about to use, or who may aid or abet any other person in the use of, premises for the wrongful purpose may be made a defendant, but does not attempt to define only such persons as the proper parties defendant to the action.

This provision cannot be given the effect of an exclusive enumeration of those who may be made defendants in the proceeding. It has none of the marks of- such an enumeration. The purpose of the act from which

article 4689 is taken was to enlarge rather than supplant the general rules of law applicable to injunction suits of this nature. This is shown in the provision in

article 4690 “that nothing in the above proviso contained shall prevent such injunction from issuing at the suit of any citizen of this state who may sue in his own name,” in placing at the disposal of the private citizen the remedy of injunction, without his being required to show that he is personally injured by the acts complained of, and by the further express declaration in the same

article that “the procedure in all cases brought hereunder shall be the same as in other suits for injunction, as near as may be.” It cannot be supposed that its intention was to deny the right to make or join as a party defendant in the suit one who otherwise would be a proper party. The owner of premises is under a primary obligation to keep his premises from becoming a public nuisance. It is a common-law duty. Joyce on Nuisances, § 453. It is frequently announced as a general rule that an owner is not liable for a nuisance created by his tenant of which he has no knowledge.

But upon examination it will be found that this is a doctrine applied to private nuisances. And it may be doubted whether it is to be accepted without qualification in relation merely to private nuisances. Upon this question, this is said in Marsan v.

French: “The maxim, ‘so use your own property as not to injure the rights of another,’ would seem to require that a landlord should at least use reasonable care and diligence in reference to the use to which his property is aiDplied, and that even for negligence in this respect he might become responsible civilly for an injury which could not result if he exercised due care and due regard for the right of his neighbor.” We are not called upon in this case, however, to apply the rule in respect to the civil liability of an owner for the maintenance by a tenant of a private nuisance.

The question here is merely as to the right to have an injunction run against an owner for the abatement of a public nuisance. In such a case it is difficult to perceive how the right is affected by the owner’s previous want of knowledge that the premises constitute such a nuisance. No immunity from injunction against such use of the premises is created by the want of such knowledge on the owner’s part. The right to an injunction arises upon proof of the nuisance, regardless of his knowledge, or want of knowledge, that his premises are being unlawfully used.

It is not affected by the question of the owner’s knowledge, and, of couse, is not defeated by his want of knowledge. If it is established that the nuisance exists, it then becomes simply a question of against whom the writ of injunction may properly run. While it is proper, and perhaps usual, to directly enjoin the immediate user of the premises in such cases, under what theory is the owner exempt from the writ? It is his duty to see that his premises are not applied to the unlawful use, and it is equally the right of the law to have him take such action as will prevent their being so used.

The proceeding is not fo? the purpose of fastening any liability for the past use of the premises. The abatement of the nuisance by the prevention of their future unlawful use is alone its aim. The owner’s ignorance of the past unlawful use of his property does not relieve him of responsibility for its future use.

He cannot say that because he was unaware that it had become a public nuisance, the nuisance may not he restrained and its further existence prevented by an injunction running directly against him, requiring the exercise of his authority as the owner of the property, primarily charged with the duty, inhering in his ownership, of seeing that it is not devoted to unlawful purposes. If in such cases the owner may relegate the proceeding to an action simply against those directly responsible for the nuisance and others concerned with them, it means that they alone are charged with that duty and he is exempt from it.

But the law does not protect persons in the ownership of property, and then permit them to absolve themselves from all obligation in respect to the uses to which it is applied. Ownership carries its duties as well as its benefits. One of them is to keep the property from a use which is unlawful. It is imposed upon the owner because that is where it ought to rest. It is an element of his right of control over the property; his authority to direct the purposes for which it may be used.

The operation of the writ of injunction against the owner of the premises as a means of preventing the continuance of a public nuisance maintained by a tenant imposes upon him no hardship beyond that created by their unlawful use which it is his duty to abate. To the full extent that an injunction under this statute may accomplish the restraint of the nuisance it may be employed.

To have the writ run against the owner, thereby requiring him to relieve his premises of their unlawful use, is one method by which the purpose of the proceeding may be lawfully accomplished, and it is therefore not an improper way for the remedy to be applied. In another view the joinder of the owner of the premises as a defendant in such a case is warranted. The object of the injunction, if finally allowed, is to permanently enjoin the unlawful use of the premises.

It is proper in the proceeding to have the owner before the court; so that, in the event the lease of the premises is terminated, he may be affected by the court’s judgment perpetually restraining the continuance of the nuisance. O’Sullivan v. New York, etc., Co., 7 N. Y. Supp. 51. The question presented was considered and determined by the Supreme Court of Iowa in Martin v. Blattner, 68 Iowa, 286, 25 N. W. 131, opinion on rehearing, 27 N. W. 244.

It was a suit to restrain a public nuisance, in which the owner of the premises was joined as a defendant with the tenants, and where the owner was without any knowledge, prior to the institution of the suit, that his premises were being unlawfully used. The proceeding was under a statute of the same general character as our own. It was urged in behalf of the owner that he was not subject to an injunction in the case because of his want of any prior knowledge of the wrongful 'use of the property. We quote from the opinion as follows: “It must be assumed that Mr.

Gibbs [the owner] leased the premises for a lawful purpose, and that he did not have any knowledge, at the time the injunction was asked, that his tenants had committed a statutory nuisance thereon by selling intoxicating liquors contrary to law. This being so, a petition for a rehearing has been filed upon the ground that a landlord cannot be made liable for' a nuisance created by his tenant of which he has no knowledge. Authorities are cited in support of this doctrine, and we think, in a certain sense, it is undoubtedly true. Cooley, Torts, §§608-612; Woods, Landl. & Ten. § 539.

An examination of these authorities, and all others cited in notes therein, will demonstrate that the doctrine above stated has been established in actions to recover damages for the erection or continuance of private nuisances. In such cases it has been generally held that a landlord! is not liable in damages that have been caused by nuisances, created by his tenant, of which the landlord has no knowledge. This case is materially different. In the first place, this is a public nuisance, although the action is brought by a private citizen under a statute which authorizes him to bring this action.

In the second place, it is not sought to recover damages for the past, but the sole object of the action is to restrain and prevent the nuisance in the future. When Mr. Gibbs was made a party to the action, he obtained knowledge that it was claimed and charged that his tenants had been using the leased premises as a place for the sale of intoxicating liquors, thereby creating a public nuisance, and therefore he, as the owner of the premises, or, rather, his property, under the statute would become liable as therein provided.

This, at least, should be regarded as sufficient to put him on inquiry as to the truth of the matter charged. Not only so, but, as he was made a party and appeared in the action, he is chargeable with such knowledge, in relation to the existence of the nuisance, as was established by the evidence introduced on the trial.

The court found and determined that a nuisance existed, and, until this determination was reversed or set aside in a lawful manner, it must be regarded as conclusive evidence of the existence of the nuisance, as against, not only the lessees, but also as to the landlord. “The statute provides that the ‘building or erection, of whatever kind, or the ground itself in or upon which such unlawful manufacture or sale, or keeping with intent to sell, * * * any intoxicating liquors, is carried on, * * * is hereby declared a nuisance, and shall be abated as hereinafter provided. * * * Any citizen of the county where such nuisance exists * * * may maintain an action in equity to abate and perpetually enjoin the same.’

Chapter 143 of the Acts of the Twentieth General Assembly; Miller’s Code, 411. Under this statute it seems to us that the building becomes a nuisance, and that its continuance as such may be enjoined and prevented. Such is, as we understand, the plain import of the statute. “As we have seen, Mr. Gibbs obtained knowledge at the trial that his building was, under the statute, a public nuisance, and that a citizen acting for the public asked that it be enjoined. It seems to us clear that such a remedy existed as against him and his building.

The statute, in express terms, so provides, and the court was bound to grant the relief asked. We affirm the proposition to be true, upon principle, that no one can use his property, or permit it to be used by another, so as to create a public nuisance. The right of the public in this respect is superior to that of the individual. The property of the latter must be held in subordination to the rights of the general, public. The health and morals of the community so require.

The existence of the nuisance having been conclusively established ás between the parties to this. action, and between each of them, by the judgment of the court, it necessarily follows that the tenants cannot continue the business, or do the thing which created it, in the leased premises. The premises may continue to be occupied by them for lawful purposes, and the lease may continue to exist. Clearly, however, in opr judgment, Mr. Gibbs can protect himself and his premises from being a public nuisance, and to that end he may have the power to cancel the lease, or enjoin the unlawful use.

We however, do not regard it as essential to determine this question. The petition for rehearing is overruled.” In our opinion the owner of the premises was a proper party to the suit, and. on the finding of the court that the premises were being so used as to constitute them a public nuisance, she was subject to an injunction. The certified question is so answered. (&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes