In re Selowsky

The petitioner has applied for a writ of hateas corpus to secure her release from imprisonment following a judgment of conviction of contempt of court, rendered by the superior court of Napa County, for the violation of the terms of a certain decree previously rendered by and entered in said court.

It appears from the petition that on the twentieth day of March, 1917, the district attorney of Napa County filed a petition in the superior court of said county alleging that the petitioner here was using certain premises owned by her and known as the “Stone Bridge Saloon,” being situated in Napa County, “for the purpose of lewdness, assignation and prostitution,” and praying for a judgment of the court that said premises be declared a nuisance and that the same be perpetually enjoined; that, subsequently (on the twenty-eighth day of June, 1917), a trial was had upon the said petition and the answer thereto of the defendant (petitioner here) and that, on the nineteenth day of November, 1917, the court, upon findings that said premises were owned, in the possession of, maintained and conducted by the petitioner as a place of lewdness, assignation, and prostitution, entered its decree in said action, adjudging and declaring the said premises to be a nuisance and enjoining the further maintenance thereof by the defendant or any other person.

The petition here further shows that, on the twenty-first day of June, 1918, the district attorney of Napa County presented to the superior court of said county a verified petition, together with certain supporting affidavits, charging and alleging the petitioner here (Mary M. Selow'slcy) with violating the judgment and the injunction above mentioned, and praying for an order and citation directed to her, requiring her to appear before said court and show cause why she should not be punished for contempt of court therefor; that, upon the filing of said petition, an order was made requiring the said Selowsky to appear and show cause before said court on the first day of July, 1918, at the hour of 2 o’clock P. M.; that said order together with a copy of the petition upon which it was made, having been served upon Selowsky, and she having made an answer to the same, a hearing on said petition was had on the day last above named, and on the eighth day of July, 1918, and thereupon the petitioner here was adjudged guilty -of contempt of court in violating the

Annexed to and made a part of the petition for the writ here applied for are the judgment adjudging the premises mentioned a nuisance and enjoining the further maintenance of the same and the judgment adjudging the petitioner, Selowsky, guilty of contempt of court in that she violated the injunction and punishing her therefor.

The general proposition submitted for decision here is, of course, that the court below was without jurisdiction to adjudge the petitioner guilty of contempt and to punish her therefor. In support of this general proposition, a number of points are made and presented, and are submitted for decision on the petition for the writ and a demurrer interposed thereto by the respondent upon the general ground that said petition does not state sufficient facts to justify the granting of the writ.

It is contended by the petitioner that, for reasons to be hereinafter considered, the proceeding instituted against her in the superior court for the abatement of the nuisance complained of therein was not inaugurated under the so-called “red-light abatement” statute (Stats. 1913, p. 20), but was brought under the general law of the state authorizing the abatement of nuisances. It is hence argued that, if the petitioner was guilty of contempt of court in that she violated the terms of the injunction issued in said proceeding, she must have been tried and should have been punished for contempt under the sections of the Code of Civil Procedure providing generally for the trial and punishment for contempt of court. (See Code Civ. Proc., secs. 1209-1218, inclusive.) It is further contended that the affidavits upon which the proceeding in contempt was founded do not state facts sufficient to constitute a violation of the injunction order of the judgment in the original action and hence insufficient to have clothed the court with jurisdiction to try and punish the petitioner for contempt ; that the facts recited in the judgment in the contempt proceeding do not show that the petitioner violated the terms of the original judgment. It is also claimed that section 6 of the Abatement Act, establishing the measure of punishment for any violation of the decrees entered under the pro

It would, perhaps, be the more orderly course first to set forth the salient provisions of the Abatement Act.

Section 2 provides that any building or place used for the purpose of “lewdness, assignation or prostitution,” or wherein or upon which such acts “are held or occur, is a nuisance which shall be enjoined, abated and prevented as hereinafter provided, whether the same be a public or private nuisance. ’ ’

The third section provides that whenever there is reason to believe that such a nuisance is kept, maintained, or exists, in any county, etc., the district attorney of said county must, or any citizen of the state, residing within said county, in his own name may, maintain an action in equity to abate and prevent the nuisance and to perpetually enjoin the person or persons so conducting or maintaining the same, and the owner or lessee or agent of the building, or place, in or upon which such nuisance exists, from directly or indirectly maintaining or permitting such nuisance.

Section 4 provides that, when the existence of such nuisance is shown by a verified complaint, or an affidavit, the court or judge may issue a temporary injunction for its abatement.

The sixth section provides the penalty, as for a contempt of court, for the violation or disobedience of any injunction or order expressly provided for in the act, which is not less than two hundred dollars nor more than one thousand dollars, or imprisonment in the county jail for not less than oné month nor more than six months, or by both such fine and imprisonment.

Section 7 is as follows: “If the existence of the nuisance be established in an action as provided herein, an order of abatement shall be entered as a'part of the judgment in the case, which order shall direct the removal from the building or place of all fixtures, musical instruments and movable property used in conducting, maintaining, aiding or abetting 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, as hereinafter provided. While such

Section 9 reads: “If the owner of the building or place has not been guilty of any contempt of court in the proceedings, and appears and pays all costs, fees and allowances which are a lien on the building or place and files a bond in the full value of the property, to be ascertained by the court, with sureties, to be approved by the court or judge, conditioned that he will immediately abate any such nuisance that may exist at such building or place and prevent the same from being established or kept thereat within a period of one year thereafter, the court, or judge thereof, may, if satisfied of his good faith, order the premises, closed under the order of abatement, to be delivered to said owner, and .said order of abatement canceled so far as the same may relate to said property. The release of the property under the provisions of this section shall not release it from any judgment, lien, penalty or liability to, which it may be subject by law.” (Stats. 1913, pp. 20, 21.)

The contention that the original action for. the abatement of the nuisance, complained of against the petitioner cannot be held to have been brought under the “Red-light Abatement Act” is based upon the proposition, pressed by petitioner with apparent earnestness, that the act does not clothe a court of equity with power to grant a perpetual injunction. The argument is that the power perpetually to enjoin nuisances of any kind or character existed in courts of equity long before the passage of said act; that the provision therein giving the courts power to issue perpetual injunctions adds nothing to the power already exercised by courts of equity, and that, therefore, the provision prescribing a penalty for a violation of any injunction or order issued or made in a case arising under said act has reference solely to the violation of the terms of the preliminary restraining order which' the law authorizes the court to make upon the filing of a petition for the abatement of the alleged nuisance.

But it was further pointed out, in oral argument, in support of the proposition that the action was not instituted under the abatement act, that the judgment entered in said action does not contain the order provided for by section 7 of said act, directing the removal from the building wherein the nuisance is alleged to have been, maintained and the sale of “all fixtures, musical instruments and movable property used in conducting the nuisance,” nor directing the “effectual closing of the building . . . against its use for any purpose,” and so keeping it closed for a year.

One answer to that proposition is to be found in the fact that the complaint and the judgment in the original action closely follow the language of the abatement act, except in so far as that the judgment fails to direct a sale of the personal property, if any, used in the maintenance of the nuisance, and does not order that the building in which said nuisance was alleged and found to have been maintained shall not be used for any purpose for the period of one year. But, as to that provision of the statute, it is to be remarked that, while the language thereof appears to be mandatory, we do not believe that it was intended by the legislature that in all cases, regardless of the particular circumstances thereof, the judgment, to be valid, so far as its injunctive feature is concerned, should contain a direction that the personal property should be sold, or that the building or place where the nuisance was maintained should be closed to all use or for any purpose for the period of one year. Cases under the act may arise which are not so flagrant in the law’s violation as in others—as, for

The above reasoning is equally pertinent to the proposition that the judgment must direct a sale of the personal property used in connection with the maintenance of the nuisance. Such property might be owned by a pérson wholly innocent of and, indeed, opposed to the immoral purpose for which it was used, and certainly it would not be a just law that would sanction the confiscation of such a person’s personal property.

A judgment similar to the one here was entered in the case of People ex rel. Bradford v. Dillman et al., 37 Cal. App. 415 , [ 174 Pac. 951 ], and, while the question now under discussion was not raised in that case, the judgment therein was, nevertheless, affirmed, the assumption of both the attorneys and the court being, evidently, that the judgment, in substance as well as in form, was one which might appropriately be rendered and entered under the statute.

As to the point that the judgment in the contempt proceeding does not itself show contempt, it may be observed that it

In Overend v. Superior Court, 131 Cal. 284 , [ 63 Pac. 372 , 374], the court said: “In the case of a contempt committed in the presence of the court, the section (1211, C. C. P.), says that the order adjudicating the contempt must contain a recital of the facts. This provision can only mean that the order must contain a recital of those facts which, in a case of constructive contempt, the law says must he incorporated in an affidavit.” (Italics ours.)

But, of course, in the case of a constructive contempt the affidavit or affidavits must contain a recital of facts sufficient to show that a contempt has been committed. Or, as this proposition is stated in Hutton v. Superior Court, 147 Cal. 159 , [ 81 Pac. 409 ], “the affidavit or affidavits upon which the contempt proceeding is based constitute the complaint, and unless they, upon their face, charge facts constituting a contempt, the court is without jurisdiction to proceed.” (See, also, Batchelder v. Moore, 42 Cal. 415 ; Overend v. Superior Court, 131 Cal. 284 , [ 63 Pac. 372 ] ; Rogers v. Superior Court, 145 Cal. 91 , [ 78 Pac. 344 ] ; Frowley v. Superior Court, 158 Cal. 220 , 226, [ 110 Pac. 817 ] ; Mitchell v. Superior Court, 163 Cal. 423 , [ 125 Pac. 1061 ].)

The present question, then, is whether the affidavits upon which the contempt proceeding against the petitioner was based show facts sufficient to constitute a contempt.

Two affidavits were filed as the basis of the proceeding— one by John De Vries and the other by E. A. Kelton, sheriff of Napa County. In the affidavit of De Vries it is alleged that, on the first day of May, 1918, affiant visited the building in which the nuisance interdicted by the court’s decree was maintained by the petitioner; that, at that time, said building was occupied by the petitioner and two other women; that, at said time, the petitioner sold and served affiant with intoxicating liquors in said building, for which he paid peti

The affidavit of Sheriff Helton alleges: “That on the eighteenth day of May, 1918, he, in company with officers of the law, visited the premises belonging to Mrs. M. Selowsky, mentioned and set forth in the judgment in said cause, made, signed and filed herein on the nineteenth day of November,

1917, and that at said time said Mrs. M. Selowsky was still the owner and in charge of said premises, and was keeping and maintaining a house of lewdness, assignation and prostitution, assisted by one Florence Ponta, as follows: That at said time, said Florence Ponta occupied a room at said premises with a man, and affiant verily believes’ committed with him then and there, the acts of illicit sexual intercourse; that thereafter, and on the same day, said Florence Ponta occupied a room at said premises with another man and, as affiant believes, committed such acts; that said premises set forth in said judgment hereinbefore referred to, and occupied by said Mrs. M. Selowsky, sometimes known as and called Mary M. Selowsky arid Mrs. M. Krueger, on the eighteenth day of May, 1918, were in charge of said Mrs. M. Selowsky, and were conducted as a house of lewdness, assignation and prostitution; that Florence Ponta, one of the inmates thereof, is a prostitute, and was working in said house for said Mrs. M. Selow

The specific objections to the affidavits are that they do not charge that the alleged solicitation of the acts of sexual intercourse referred to therein was carried on with the knowledge of the petitioner; that it is not made to appear therefrom that the women mentioned would or intended to commit the proposed acts of prostitution upon the premises, “or that they solicited affiant to stay all night upon the premises ’ ’; that the allegations in the affidavits that the building was at the time mentioned being conducted as a house of prostitution involve the mere conclusions or unsupported opinions of affiants.

We shall not attempt to follow the ramifications of the very able argument advanced in support of the claim that the affidavits, either taken alone or together, do not make out a sufficient ease of contempt against the petitioner to have given the court jurisdiction to inquire into the charge. It will be enough to say that, in our opinion, in the character of cases arising under the abatement act, the affidavits sufficiently charge facts constituting a violation of the injunctive order made against the petitioner in the original action and hence a contempt of court.

It is obviously true that, to prove that a building or a house is maintained for the purposes of lewdness, assignation, and prostitution, circumstantial evidence must necessarily be relied upon, for, particularly as to acts of prostitution or assignation, it is rarely the case that direct evidence in support of such a fact may be obtained or is available. Sexual relations between the sexes are, of course, always carried on clandestinely. Such performances, it-is to be apprehended, are seldom ever witnessed by persons save those engaged therein. Hence, in .proving illicit sexual relations between the opposite sexes, where the proof of such acts is indispensably necessary to the establishment of a case, either civil or criminal,

In the present case, as will be noted, the affidavit of De Vries declares that one of the women in the house in question solicited him to have sexual relations with her at a specified price. This was not only of itself an act of lewdness (see Webster’s Dictionary; Cyclopedic Law Dictionary), but tended to show that the building or house was carried on as a place of prostitution or assignation. He further declared that he had had considerable experience in the investigation of houses of prostitution and stated without qualification that the place was conducted as a house of prostitution; that liquors were therein dispensed and that the women inmates of the house were garbed in the attire usually worn by prostitutes.

Sheriff Helton’s affidavit states that the petitioner was conducting a house of prostitution at the place in question, assisted by one Florence Ponta, a female; that the latter occupied a room in said house on two different occasions on the day he (affiant) was there with two different men; that said Florence Ponta is a prostitute, and that he verily believes that she practiced sexual acts with the two men referred to; that said acts were committed with the knowledge and approval of said Mary M. Selowsky.

Upon the facts set forth in the affidavits a judgment or verdict would, in our opinion, safely rest in any ease where it is legally requisite to prove acts of prostitution or of assignation or of lewdness to establish the ultimate fact or a crime, and if they are sufficient for such purposes, then certainly they are sufficient to show that the decree in the original action was knowingly violated by the petitioner and consequently a contempt of court committed by her.

It is, of course, to be conceded that the belief of the affiant that the Ponta woman cohabited and had illicit relations with the two men cannot be accepted as evidence of that fact, but that allegation in the affidavit may be eliminated and still

We now come to the consideration of the question whether section 6 of the Abatement Act, prescribing the penalty for the violation of the terms of any order or injunction made .or issued in an action arising under said act, is or is not valid. As stated above, the contention is that the section is unconstitutional and is in conflict with sections 1209 and 1218 of the Code of Civil Procedure. The same contention was made in People v. Barbiere, 33 Cal. App. 770 -780, [ 166 Pac. 812 -816], and therein we expressed our views upon the question as to the validity of said section of the act. In that case, among other things, it was said: “But we do not acquiesce in the view that section 6 of the abatement law either affects or is affected by the code section referred to. We know of no constitutional limitation upon the right of the legislature to fix reasonable penalties for contempts of the judgments, decrees, orders, or processes of courts of justice, and, in admeasuring such punishments, to assign, as it may do and has done in cases of public crime, to certain acts of contempt a greater or less penalty than is annexed to others, according to the nature of the contempt with respect to the subject matter of the adjudication violated and the consequences of such violation to the public or to individual rights. ’ ’ We have found no occasion to recede from the views thus expressed. Certainly it cannot justly be contended that the legislature may not amend section 1218 of the Code of Civil Procedure by prescribing a more severe penalty for any contempt of court than is now thereby prescribed. If, therefore, section 6 of the Abatement Act is void, it is not because the legislature is without the power and the right under the constitution to prescribe any reasonable penalty it may see fit for contempt in the violation of decrees, judgments, orders, processes entered, made or issued by the courts, or for other misbehavior affecting or militating against the dignity of a court of justice or which is calculated to circumvent the ends of its judicial mandates, but solely for the reason that said section is in conflict with the provisions of section 1218 of the Code of Civil Procedure, to which proposition, as seen, we have expressed an adverse opinion in the Barbiere case.

We read nothing in the case of Ex parte Clancy, 90 Cal. 552 , 555 et seq., [ 27 Pac. 411 ], which conflicts with the foregoing views. In that case, the petitioner had been adjudicated an insolvent debtor under the state Insolvent Act. The petitioner refused to obey an order of the court made in the insolvency proceeding commanding him to turn over and pay to the receiver in said proceeding certain assets of the value of four thousand dollars. He was proceeded against in contempt and was adjudged guilty of contempt of court. Section 64 of the Insolvent Act provided that ‘all sections of the Code of Civil Procedure of the state of California relating to contempts are hereby made applicable to all proceedings under this act.” But it further provided that “an appeal shall be allowed to the supreme court from any order adjudging any person guilty of a contempt of court.” In a concurring opinion, joined in by Justice Be Haven and Chief Justice Beatty, Justice Harrison held that the provision allowing appeals from judgments of contempt growing out of proceedings had under the Insolvent Act was in conflict with section 1222 of the Code of Civil Procedure, providing that “the judgment and orders of the court or judge, made in cases of contempt are final and conclusive,” and remarked: “To give effect to this provision of the insolvent act is to permit an appeal from judgments of contempt in one class of cases which, under the general law applicable to contempts, is denied to all other judgments for the same offense. Such construction would except cases arising in insolvency from the uniform operation of this general law, and thereby destroy its uniformity and violate the provisions of section 11 of article I of the constitution.” Judge Harrison further said: “Any law for the punishment of this offense is necessarily of

We have no reason for doubting that the affidavits contain sufficient facts to show that a contempt of court had been committed and to have given the court jurisdiction of this proceeding. What the evidence taken at the trial of the contempt proceeding disclosed, we are not advised by the record before us, nor is it necessary to the decision here that we should know what such evidence showed, since the scope of the inquiry in this proceeding is limited to the consideration of the question whether the court was by the affidavits filed herein invested with jurisdiction to hear and determine the contempt proceeding.

The alternative writ is discharged and the prisoner remanded.

Chipman, P. J., and Burnett, J., concurred.