Ryan v. Superior Court

PREWETT, P. J., pro tem. The people of the state of California, on the relation of the district attorney of said *72 county, brought an action against said petitioners under the provisions of the Red-light Abatement Act (Stats. 1913, p. 20) to enjoin the maintenance of a nuisance on certain premises known as the Casino Dance Hall. The court, on the trial, found that the nuisance existed and in due course entered its decree for the abatement thereof. This decree was subsequently affirmed on appeal. Thereafter, the petitioners made application to said superior court for an order directing the delivery to the owners of the property affected by the decree and canceling thé order of abatement. The petitioners offered to execute the bond required by said act and to pay the costs theretofore incurred. Section .9 of said act provides that the court, if satisfied of the good faith of the applicant, may order the premises reopened: The entry of such an order is in the discretion of the trial court. While it is true that the word “may” is sometimes construed to mean “must” where it is evident that the legislature so intended it, still, in view of the purposes of the Red-light Abatement Act, the character of the evil to be dealt with and the difficulty in establishing evasion of the decree, it is evident that the legislature intended to vest discretion in the trial court in granting or refusing' an application to reopen. Moreover, the trial court must be satisfied of the good faith of the applicant. No showing of such good faith was attempted. Indeed, no evidence was offered upon the point. The burden rests upon the petitioners to show their good faith.. The court is required to determine the existence of this good faith the same as it would determine any other question of fact. The demurrer is sustained and the petition dismissed.