State ex rel. Evans v. Caldwell ( 1964 )

BEJACH, J.

This cause comes to the Court of Appeals, Eastern Section, by appeal from the Criminal Court of Washington County, and also by petition for certiorari and supersedeas, filed by Mr. and Mrs, Charles V. Caldwell seeking to review and supersede the judgment of the Criminal Court of Washington County, Tennessee, of June 3, 1963 which adjudged their residence in Johnson City, Tennessee, to be a nuisance and ordered same to be padlocked. This cause was formerly in the Supreme Court, but that Court ordered it transferred to the Court of Appeals. In this opinion, the parties will be referred to as petitioners and respondent or called by their respective names, the term petitioners being applied to appellants’ petition for certiorari and super-, sedeas. The State was also a petitioner in the lower court.

Petitioner, Charles V. Caldwell, was indicted in the Criminal Court of Washington County on a charge of maintaining his home in such manner that it was a public nuisance. In addition, a petition of the State of Tennessee on the relation of Lodge Evans, District Attorney General, was filed in the same Court against both Mr. and Mrs. Charles V. Caldwell, seeking to declare their home to be a public nuisance and to have same abated by padlocking of said residence. By agreement, the two causes were heard together,- with the same testimony, or at least parts thereof, heard by the court and the jury trying the indictment, with additional testimony heard by the court alone on the petition for padlocking. The trial on the indictment was before the court and a jury, and the trial of the petition for padlocking was before the court, without a jury. The same testimony was heard, however, in both trials, although in the padlocking trial two additional witnesses were heard by the court, after the jury had retired. The jury returned a verdict of not guilty on the indictment, and, consequently we are not concerned with that case. The trial judge, Hon. Oris D. Hyder, however, sustained the petition on relation of the District Attorney General, and ordered the home of Mr. and Mrs. Caldwell padlocked. Petitioners appealed, and also filed a petition for certiorari and supersedeas. There had been previously granted a temporary injunction restraining Mr. and Mrs. Caldwell from operating their home as a nuisance, but that injunction had not been made permanent and no citation for contempt of court for violation of said injunction had been issued.

So far as the record before us indicates, no writ of certiorari nor writ of supersedeas has been issued.

In this Court, as appellants, and as petitioners for the writs of certiorari and supersedeas, petitioners have filed four assignments of error which are as follows:

“ERROR NO. I

“The evidence preponderates against the judgment of the court in ordering the petitioners’ residence padlocked. This error is based upon grounds 1 and 3 of the motion for a new trial.

“ERROR NO. II

“The judgment is contrary to the law and the evidence.

“ERROR NO. Ill

“Padlocking petitioners’ residence amounts to a confiscation or forfeiture of their property without compensation and without due process of law, and is viola-tive of Article I, Sections 8 and 21 of the Constitution of Tennessee.

“ERROR NO. IY

“Padlocking petitioners’ residence and depriving them of their home amounts to confiscation or forfeiture of their property without due process of law and without compensation, and is violative of the 5th and 14th Amendments to the-Constitution of the United States.

“The court erred in overruling petitioners’ motion for a new trial by reason of a manifest errors enumerated above.”

Inasmuch as there was a verdict of not guilty in the criminal case against Mr. and Mrs. Caldwell, this Court is concerned only with the proceeding involved in the case of the State of Tennessee ex rel. Hon. Lodge Evans, District Attorney General, against Mr. and Mrs. Caldwell for abatement of an alleged nuisance under provisions of Sections 23-301—23-316, T.C.A. In that aspect of the situation, the cause comes to us under the provisions of Section 27-303 T.C.A., as if it were an equity case appealed to this Court, with a presumption of the correctness of the lower court’s judgment or decree, unless the preponderance of the evidence is to the contrary. Black et al. v. State ex rel. District Attorney General, 130 Tenn. 529, 172 S.W. 281.

Petitioners’ assignments of error present two questions for disposition by this Court, viz., 1. Whether or not the preponderance of the evidence is contrary to the judgment or decree of the lower court, and 2. Whether or not the action of the court in entering the decree, which orders petitioners’ home padlocked, violates either Article I, Sections 8 and 21 of the Constitution of Tennessee, or the 5th and 14th Amendments to the Constitution of the United States. The first of these questions is presented by Assignments of Error Nos. I and II and the second by Assignments of Error Nos. Ill and IY. We will dispose of the second question first.

The question, of whether or not the judgment or decree of the court in this case violates either the Constitution of Tennessee or the Constitution of the United States is, in our opinion, settled adversely to the contention of petitioners by the case of State ex rel. Estes v. Persica, 130 Tenn. 48, 168 S.W. 1056.

Prom the opinion of the Supreme Court in that case, written by Mr. Justice Buchanan, we quote as follows:

“It is next said that the act is class legislation, and, as such, is inhibited by section 8 of article 1, and by section 8 of article 11, of the Constitution of the state, and the fourteenth amendment of the Constitution of the United States. This insistence rests on fallacious premises.

“The insistence that the act violates the fourteenth amendment of the Constitution of the United States is not well made. The act is an exercise of the police power of the state, and there is no such arbitrary classification or disregard of the rights of property, either so far as the principals in the commission of the nuisance are concerned or the owner of the building, as to invalidate the act. Mugler v. Kansas, 123 U.S. 623, 8 Sup.Ct. 273, 31 L.Ed. 205; Kidd v. Pearson, 128 U.S. 1, 9 Sup.Ct. 6, 32 L.Ed. 346; Eilenbecker v. District Court, 134 U.S. 31, 10 Sup.Ct. 424, 33 L.Ed. 801.” State ex rel. Estes v. Persica, 130 Tenn. 56, 58, 168 S.W. 1058, 1059.

In State ex rel. Estes v. Persica, the constitutionality of Chapter 2, Public Acts of Second Extra Session, 1913, known as the Nuisance Act, (carried forward into secs. 23-301—23-316, T.C.A.) was involved. This Act authorizes the abatement of public nuisances therein defined, including the unlawful sale of intoxicating liquors, by process of injunction, and authorizes, in proper cases, the padlocking of places where intoxicating liquors are unlawfully sold. The property involved in the Pérsica case was a place of business, and counsel for petitioners contend that padlocking cannot properly be used in the case of a residence. We have found no reported case where a private residence was ordered to be padlockd, and so such case has been pointed out to us; but, we find no valid reason for distinguishing the right of padlocking on that ground. In our opinion, even a private residence could be properly ordered padlocked, if the proof clearly established that intoxicating liquor was being illegally sold at such residence, and that padlocking of such residence was necessary to prevent a continuation of sales there. The proof of sales ought, perhaps, in such case, to be stronger than if sales at a place of business were involved. In the instant case, however, there is no proof of illegal sales of intoxicating liquor having been made on petitioners’ premises, and, as we shall point out in disposing of Assignments of Error I and II, the preponderance of the evidence is to the contrary.

In addition to relying on the provisions of the Nuisance Act, Sections 23-301—23-316 T.C.A., respondent relies on Section 39-2901 T.C.A., which, among other provisions, contains the following:

“It is a public nuisance:

“(4) To maintain houses of ill fame, kept for the purpose of prostitution and lewdness, gambling houses, or houses.where drunkenness, quarreling, fighting, or breaches of the peace are carried on or permitted, to the disturbance of others.”

In onr opinion, the provisions of this Code Section are merely cumulative to the provisions of Sections 23-301-23-316 T.C.A.

Assignments of Error III and IV will be overruled.

We next take up Assignments of Error I and II which present the question of whether or not the evidence preponderates against the judgment or decree of the lower court. In order to dispose of this question, it will be necessary to review the evidence.

Scott Lawson, an employee of J. E. Green Construction Co., testified that he lived at 45% Orleans Street in Johnson City, Washington County, Tenn., about 500 feet from the residence of petitioners on top- of a hill at a deadend street or alley known as Dean Street, with only one other house located on this street after passing Orleans Street, but that there are numerous other houses in the general locality, including the Clifton View Baptist Church, which is also- about 500 feet from the home of petitioners. This witness testified that he had frequently seen people coming from the Caldwell house in an intoxicated condition, and that a continuous stream of noisy traffic going to and from the Caldwell house disturbed church services at the Clifton View Baptist Church. He was, however, unable to say that the disturbances or drinking were caused by anyone going to or from the home of petitioners.

The Reverend B. M. Canup, minister of the Clifton View Baptist Church, testified that his church is 400 to 500 feet from the petitioners’ home, and that he had heard considerable noise on the road leading towards their home, and that such noise and traffic had disturbed services at his church. He had never been to or past petitioners’ house.

Mrs. Bobert Giles testified that she lived near the Caldwell home, and that she had frequently seen people come from the Caldwell house who were in an intoxicated condition, and that she had seen a fight on the road right below the Caldwell house. She could not state positively, however, that the people whom she had seen had been in or to the Caldwell home.

Mrs. Charles Hubbard testified that she lived near the Caldwell home, and that she frequently saw and was disturbed by the noisy traffic going up the hill towards the Caldwell house, but that there were other houses in the area and she could not say positively that these people went to the petitioners’ home.

Larry Hubbard, 12 years of age, testified that, on one occasion, he and Bobby Babb had sold liquor bottles to Mrs. Caldwell, that they received 2% cents each for half pint bottles, and a nickel each for pint bottles, and that Mrs. Caldwell paid them $2.09.

Bobby Kenneth Babb, aged 16, testified, in general, to the same effect as Larry Hubbard, except that he could not and did not identify Mrs. Caldwell. He said that the amount received for the bottles sold was $1.10 and that they received 2% cents each for the bottles.

Mrs. Angie Simerly, a widow who lived at 49 Orleans Street in the same block with the Clifton View Baptist Church and about two blocks to two and a half blocks from the Caldwell home, testified that she had seen cars coming down the hill and back up, with intoxicated people coming back.

G.uy Williams, self employed, who resided about 150 feet from the Clifton View Baptist Church, and about 1000 feet from the Charles Caldwell house, testified that he had seen a lot of traffic going to and from the Caldwell home, that he had seen a number of people coming away in a state of intoxication.

The Reverend B. M. Canup, being recalled to the stand, testified that there is only one store in the vicinity of the Caldwell home, and that he had never been to the top of the hill where that home is located.

The above was all of the evidence introduced before the court and jury on the trial of the indictment; but, after the trial judge had charged the jury, and the jury had retired, the witness Scott Lawson was recalled to the stand where he testified that the general reputation in the community was that intoxicating liquors were being sold in and at the Caldwell house. Also, Mr. Tommy Dillow, the Criminal Court Clerk of Washington County, testified that in 1959, a temporary injunction had been issued by the Criminal Court of Washington County enjoining Mr. and Mrs. Charles Y. Caldwell from selling and possessing for sale intoxicating liquors upon their premises, and a certified copy of such temporary injunction was introduced in evidence. He testified that the injunction had never been madQ permanent, and that no citation for contempt of court had been issued against either Mr. or Mrs. Caldwell.

In our opinion, the evidence summarized above, including that offered before the trial judge outside the presence of the jury, was wholly insufficient for conviction of Mr. and Mrs. Caldwell for contempt of court, consisting of' violation of said injunction, and, consequently, wholly inadequate to justify a judgment for padlocking their residence. We recognize that proof of reputation is made competent under the provisions of the “Nuisance Act” (secs. 23-301 — 23-316 T.C.A.), as tending to show violation of the injunction. But in our opinion, proof of bad reputation for violation of liquor laws is, by itself, inadequate to sustain a finding of fact that illegal sales of intoxicating liquor had been made; and, without proof of unlawful sales therein, petitioners ’ residence should not, in our opinion, have been ordered to be padlocked. In our opinion, the record discloses no proof of actual sales of intoxicating liquor made by petitioners at their residence, and, consequently, the judgment ordering their residence to be padlocked was not justified by the proof. The proof offered might have been sufficient to justify making the temporary injunction permanent, but not sufficient to sustain the judgment for padlocking of petitioners ’ residence.

We recognize that, on the trial of the indictment, proof of guilt beyond a reasonable doubt was required for a conviction, whereas, for the purpose of sustaining the State’s petition for the abatement of an alleged nuisance merely a preponderance of the evidence was required. Even so, where the drastic remedy of padlocking the residence of petitioners was applied for, such proof must be considered as inadequate. Even the trial judge, preliminary to pronouncing his judgment, indicated that he considered padlocking to be a very drastic remedy. From his remarks made at the time of pronouncing judgment, we quote as follows:

“All right. Well, as I have said before, I certainly feel that to padlock a residence is a last resort on the part of the court to abate a nuisance. In this case, I have a clear recollection of hearing this case before, and certainly it’s my recollection that we hoped that this condition would be cleared up- in that .neighborhood by action less than a padlock order.”

Our conclusion is that Assignments of Error I and II should be sustained, and the State’s petition for abatement of the alleged nuisance by means of padlocking of the residence of Mr. and Mrs. Charles Y. Caldwell, dismissed. Inasmuch, however, as a temporary injunction has heretofore been granted in this cause, same should be remanded to the ’ Criminal Court of Washington County for further and additional proceedings therein, such as the hearing of an application to make the temporary injunction permanent, or for any other and additional efforts, on stronger proof than that contained in the present record, to have the alleged nuisance abated, or for any other relief in said cause not inconsistent with this opinion.

The costs of the cause will be adjudged against the State of Tennessee.

Avery, P.J., (W.S.), dissents. Carney, J., concurs.