Johness v. Miller , 5 Pelt. 405 ( 1922 )

Dinkelspiel; J.

The petition, of plaintiff represents:

"The petition of Allen H. Johness ana A. H. Ahten, both of lawful age and residents of the Parish of Jefferson, and of 0. A. Beuohler, Distriot Attorney, for the 38th Judicial Distriot, for the Parish of Jefferson, with respeot shows:

That the defendant herein, Frederick P. Miller, is a resident and domiciled in the Parish of Jefferson and is the owner of certain property looated in the Parish of Jefferson, described as lots Nos. 18, 19 and 30, of Square No. 10, of Friedaichsru Subdivision, said proper-being located at the corner of Orleans Street or Protection Levee and Avenue E.

That there is constructed on said above described property, a oertaln building, within which games of ohanoe, oommonly known as roulette, "bircL-oage" and faro are played for money and where bets and wagers are made on such games in the said building, and that the same is oonduoted and is operated for the direot or indlreot profit of said defendant and not exclusively to the dlreo-e profit of the actual participant in suoh games.

That the operation and oonduot of said gambling establishment in which the aforesaid games are played is a publio nuisanoe under the provisions of Aot No. 193 of the General Assembly for the year 1930, oommonly known as the Higgins Aot, and that the owner of said property should be deolared guilty of maintaining a public nuisanoe.

That petitioners herein desire to avail themselves of the rights aooorded to them under the provisions of the aforesaid aot of the General Assembly, and to have the said nuisance created by said gambling house abated and to have the said building dosed for one year for any purpose whatsoever during that period.

That petitioners desire that an injunction issue herein without bond under the provisions of said act, pending the final determination and judgment of this oourt.

And finally petitioners pray that the annexed affidavits being considered that a temporary injunotion issue herein without bond restraining and enjoining the said defendant, Frederick P. Hiller, from using the above property where said nuisanoo is averred to exist, for any purpose or purposes whatsoever; that the said defendant be duly oited to appear and answer this petition and that this oourt fix a day and dsimpcat date upon which this matter shall be heard by preference and priority over all other esses and that after due proceedings had, this oourt deoree the said defendant guilty of maintaining a publio nuisance and that the operating and conducting of said gambling house be deolared a publio milsanee and the said injunotion be maintained and perpetuated and that the said place be closed for a period of one year and not to be used for any purpose whatsoever during that period. And for oosts and general and equitable relief.

This petition is signed by plaintiffs and is sworn to by Johnese and Ahten.

Annexed, we find this order, issued by the Judge on this petition:

Order.

let as prayed for a rule to show oanse why the nuisance complained of should not be abated and why an in-junotion should not issue herein as prayed for, said rule returnable Haroh 18th, 1921 at eleven otolook A. 1Í. Granted, Parish of Jefferson, this 12th day of March 1921.

(Signed) Prentioe E. Edrington. Judge.

To this petition there appeared the defendant, Frederiok P. Miller, who exoepted to the rule herein taken by plaintiff on various grounds:

1st. That this oouxt is without jurisdiction.

2nd. That th@ rula of plaintiff discloses no cause or right of action.

3rd. That respondent should not be compelled to answer these proceedings for the reason that Aot 192 of the Acts of the General Assembly of the State of Louisiana for the year 1920 is unconstitutional, null and void, and all proceedings brought thereunder are illegal, in that said Aot of 1930 oontravenes and violates Articles 31, 32 and 177 of the Ooxctitiax Constitution of the State of Louisiana.

And the prayer is that the rule be dismissed at plaintiff s oost and for general relief.

The exceptions were sworn to and were filed.

Subsequently plaintiffs in a supplemental petition filed Maroh 31st, 1931, allege in addition to the matters and things alleged in the original petition, that they are taxpayers of the State of Louisiana and are entitled to an injunction forever prohibiting the defendant from oonduoting and from being conoerned in the oonduoting or operating of a publio nuisanoe, like that described in the original petition filed herein, anywhere within the State of Louisiana.

They pray that the supplemental petition be filed and allowed and that they have suoh other orders and deorees as may be neoessary for Hw full and general relief.

sworn The supplemental petition is/ to by Messrs. Johness and Ahten and the order issued the same day, htWfctag permitting the filing of the supplemental petition.

We have thus quoted in full, in order for a proper-understanding and decision in this oase, the pleadings, and from the foregoing, it appears that when the original petition was filed in this cause, the plaintiffs had not alleged among other things that thsy were taxpayers and under Seotion 3 of Aot 193 of 1930, only taxpayers are given the privilege of resorting to summary proceedings therein provided fox.

Defendant protested against the filing on the day of trial, of any supplemental petition, w'aioh would supply a cause of action, when had none had previously existed, but the Judge aq.ua permitted the supplemental petition to be filed.

The Aot, Seotion 1, defines a gambling house, decrees it to be a public nuisanoe, provides who may sue to abate this nuisanoe and in what Court same shall be brought.

It goes on further and decrees against whom suoh suits must be brogght and “when the name of the lessee, tenant or other occupants of any place defined as a gambling house by Seotion 1 of this Act is not known, the action to abate the nuisanoe created,shall be brought against the person or persons in whose name suoh property stands at the time said action is filed, upon the assessment books of the Parish wherein such plaoe is situated and such person hereafter referred to as the owner.

And said Section further provides that when the owner is so made the defendant, he may implead the lessee, or tenant aothally responsible for the maintenance of suoh has nuisanoe and on proof that suoh owner/ not profited, the owner against whom the suit is brought may be dismissed; in other words, that it is only when the person creating the nuisanoe is unknown to the plaintiffs, have they a right to proceed against the owner upon the assessment rolls of the property upon which it is olaimed a nuisanoe was being created and it is further provided that when the tenants and lessees are unknown to the plaintiffs, the owner, under suoh conditions, has a right to Implead the tenants or lessees.

The petition doubtless prooeeds against the owner beoause it sets forth that he, the defetldant, is the person against whoa the property in question should he condemned and closed and further that gambling was being conducted in said property but naming no person who conduots the establishment.

The alleging that gambling is conducted in the establishment, operated for the direct or indirect profit in suoh games, does not oomply with the provisions of the Aot quoted.

The Aot itself provides for summary proceedings by injunction or in abatement of property, imprisonment in the Parish Jail; suoh se&±e aots are ever strictly construed.

We are therefore of the opinion that the supplemental petition, on which this actions rests could not and should not have been fried at the date of its filing; that they did not under give the particulars required/’ the Aot in the original pe-tltion, on which the order to show cause was issued.

The authorities are few in number, out those we have found bearing on this subject, covers, in our our opinion, the points decided.

In order to obtain an injunction agsdnsi or abatement of a nuisance against the owner of the property, the complaining party must show a olear and strong cause supporting his right to such relief, and so where injunction to oomplainant would result Irrespective of the existanOe of the alleged nuisance, the Court will notb decree its abatement.

Rosser vs. Randolph, 31 Am. Dec. 312.

Langdon vs. Chicago R. R. Co. 48 Iowa 437.

Where the neme of the lessee, tenant or other occupant of any place defined as a gambling house, by Sec. 1 of this Aot, is not known, the aotion to abate the nuisanoe created, Bhall be brought against the person or persons in whose name suoh property stands at the time suoh action is filed; and, in order to maintain an aotion against the person in whose name the property stands, it is neoessary that tile plaintiff make a prima facie showing that the lessee, tenant or other oooupant of the place defined as a gambling house, is unknown to the plaintiff, in order that the owner has a right to implead the tenants or lessees.

Seo. 4, Jot. 193 of 1930.

decided The Judge Qqu¿, not haring /aooakcfc&sadc the constitutionality of the Acts in question, under numerous decisions of the Supreme Court and this Court we oannot deoide that qjse stion.

For the reasons assigned, it is therefore ordered, adjudged and decreed, that the judgment of the Court aqua he and the same is hereby affirmed, with oosts of both Courts against plaintiff.

-Judgment affirmed-