State Ex Rel. Barker v. Palmer

Clarkson, J. The defendants John Ivey Brown and R. M. Brown at the close of plaintiff’s evidence made a motion in the court below for judgment as in case of nonsuit. C. S., 567. The motion was refused and in this we can see no error. The evidence is not in the record of the appeal to this Court, and the presumption is that it is sufficient to sup *524 port a verdict. In fact, the name “Jitterbug Club” was perhaps an invitation to the lessors Brown to make inquiry. As a second issue to be submitted to the jury, the defendants R. M. Brown and John Ivey Brown tendered the following: “If so, has such nuisance been maintained with the knowledge and acquiescence of the defendants R. M. Brown and John Ivey Brown?” The court declined to submit the issue tendered by the defendants Brown, and defendants Brown excepted and assigned errors. Before rendering a personal judgment against the defendants Brown, we think the issue should have been submitted to the jury, and in order to support the judgment or order of padlocking the premises, it must first appear that the lessor had knowledge of the nuisance there maintained or, by the exercise of due diligence, might have known the same. Therefore, the issue as to such knowledge tendered by the defendant in this case ought to have been submitted to the jury. N. C. Code, 1939 (Michie), sec. 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 3184, in part, is as follows: “If the existence of the nuisance be established in an action as provided in this chapter, or in a criminal proceeding, 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. Section 3185: “The proceeds of the sale of the personal property as provided in the preceding section shall be applied in the payment of the costs of action and abatement, and the balance, if any, shall be®paid to the defendant.” Section 3186 provides how order of abatement may be canceled. When the defendants Brown leased the premises to the defendant May Palmer, under the above existing statutes, ch. 60 of Consolidated Statutes, entitled “Nuisance Against the Public Morals,” et seq., entered into and became a part of the contract. Pertinent public statutes affecting contracts must be read into the contracts to which they apply, or, at least, *525 sucb contracts must be understood to bave been made in contemplation of tbe law. Spain v. Hines, 214 N. C., 432 (437). In The People ex rel. Lemon v. Elmore, 256 N. Y., 489, it is beld: “A statute authorizing courts of equity upon sufficient proof to issue an injunction against tbe maintenance of a bouse of prostitution and to direct tbe closing of tbe building in wbicb tbe nuisance was maintained, for a year, or until tbe owner shall give bond against tbe reestablishment of tbe nuisance, does not violate tbe 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 tbe previous annotations on this subject bave uniformly sustained tbe constitutionality of statutes conferring upon courts of equity power to abate a public nuisance, although tbe acts complained of also constitute a crime and no property rights are invaded.” Carpenter, Solicitor, v. Boyles, 213 N. C., 432 (446). In tbe Carpenter case, supra, which is similar to tbe present action, tbe whole matter was thoroughly discussed, and tbe facts were beld sufficient to abate tbe nuisance and tbe act beld constitutional. In Calcutt v. McGeachy, 213 N. C., 1 (7), it is written: “In Skinner v. Thomas, 171 N. C., 98, tbe Court said: ‘The police power is an attribute of sovereignty, possessed by every sovereign state, and it is a necessary attribute of every civilized government. — 6 R. C. L., 183.— “It is tbe power to protect tbe public health and tbe public safety, to preserve good order and tbe public morals, to protect tbe lives and property of tbe citizens, tbe power to govern men and things by any legislation appropriate to that end.” 9 Ency. of U. S. Rep., 473: “Upon it depends tbe security of social order, tbe life and health of tbe citizen, tbe comfort of an existence in a thickly populated community, tbe enjoyment of private and social life and tbe beneficial use of property.” Slaughterhouse cases, 16 Wall., 36, 21 L. Ed., 394.’ ‘The exercise of this power is left largely to tbe discretion of tbe lawmaking body, and tbe authority of tbe courts cannot be invoked unless there is an unnecessary interference with tbe rights of tbe citizen, and when there is no reasonable relation between tbe statute enacted and tbe end or purpose sought to be accomplished. 6 R. C. L., 236.’ Durham v. Cotton Mills, 141 N. C., 615; Shelby v. Power Co., 155 N. C., 196; Reed v. Engineering Co., 188 N. C., 39.” New trial.