People ex rel. Lemon v. Elmore

The defendant Caparbo is the owner of premises which have been used as a house of prostitution. In an action brought pursuant to the provisions of article 17-A of the Public Health Law (Cons. Laws, ch. 45), a judgment was rendered at Special Term enjoining the defendants from " conducting, maintaining, using, occupying or in any way permitting the use or occupancy of said premises and the building located thereon for the purpose of lewdness, assignation, prostitution, or as a disorderly house.” In accordance with the command of the statute the judgment directed the sheriff “ to effectually close the building located on said premises against its use for any purpose, and to keep the same closed for a period of one year, unless sooner released as provided by law,” and imposes a “ tax ” of $300 upon the property.

• The maintenance of a house of prostitution constitutes a public nuisance. An owner of adjoining property may complain that he has suffered special damage by the maintenance of such a nuisance which interferes with the legitimate use of his property and renders its occupation unfit or uncomfortable, and he may maintain an action in equity for an injunction. (Cranford v. Tyrrell, 128 N. Y. 341 .) Whether in the absence of a statute an action in equity for an injunction might be maintained by a public officer in the public interest to abate such a nuisance is more doubtful. In Attorney-General v. Utica Ins. Co. ( 2 Johns. Ch. 371 ) Chancellor Kent has pointed out that courts of equity have interfered only rarely and in limited' classes of cases “ to put down a .public nuisance which did not violate the rights of property, but only contravened the general policy.” The Legislature, by article 17-A of the Public Health Law, has authorized a district attorney to bring actions to

At common law the issues of fact upon an assize of nuisance to abate the nuisance and to recover damages were tried by a jury. So, too, were tried all actions for forfeiture. The Legislature cannot deprive a defendant of a right to a trial by jury in such actions by authorizing a court of equity to take jurisdiction. (Hudson v. Caryl, 44 N. Y. 553 ; Colon v. Lisk, 153 N. Y. 188 .) That is not what the Legislature has done here. Remedy by common-law action furnished incomplete protection against injury to the public interest by the maintenance of a public nuisance. Remedy by injunction at the suit of a person who had suffered special injury in his property rights furnished more adequate protection to those rights. The Legislature has determined that similar protection should be afforded to public rights. It did not deprive a defendant of his right to a jury trial in any action where jury trials had previously been the rule. It extended an equitable remedy in a field where coruts of equity had been reluctant to interpose their powers. There never had been a right to trial by jury where the remedy for a wrong was through injunction. The Constitution makes inviolable trial by jury “ in all cases in which it has been heretofore used.” It does not restrict the Legislature from enlarging the scope of equitable remedies or require that a defendant shall have a right to trial by jury where no such right previously existed. The provision that the court shall direct the effectual

The same question has been presented in other jurisdictions by similar provisions in analogous statutes. The great weight of authority accords with the conclusion that an equitable remedy, provided in the public interest against the maintenance of a public nuisance, does not violate any right to a jury trial in “ cases in which it has been heretofore used,” even though previously the only remedy against such a nuisance was by a common-law action. To hold otherwise would in our opinion restrict the Legislature in a manner not contemplated by the framers of the State and Federal Constitutions.

We are told by the defendant-appellant that decisions upholding the padlock provisions of prohibition enforcement laws rest upon special considerations peculiar to that class of cases. (Duignan v. United States, 274 U. S. 195 ; Grosfield v. United States, 276 U. S. 474 ; Kling v. United States, 8 Fed. Rep. [2d] 730; certiorari denied, 46 Sup. Ct. 203 .) The attempted distinction is of doubtful weight. Many other States have statutes with provisions concededly analogous to those now under consideration. Almost uniformly the courts have sustained these provisions. In some of these States the courts have held that even without a statute, a court of equity had general power to enjoin a public nuisance. Then

Other objections are urged by the defendant-appellant against the constitutionality of the statute. We find them without substance. No provision has been made in the judgment for the sale of any property used in conducting the nuisance. We do not now consider whether those parts of the statute authorizing such sale are valid.

There remains only for consideration the provision of the statute requiring that “ when a permanent injunction issues * * * there shall be imposed upon said building and the ground upon which the same is located and against the person or persons maintaining said nuisance and the owner, or agent of said premises, a tax of three hundred dollars, which shall be known as a ‘ penalty tax.’ The imposing of said tax shall be made by the court as a part of the judgment.” (§ 343-w.) The Appellate Division has held that this “ tax ” is in effect a penalty and has modified the judgment by eliminating therefrom the imposition of a tax of $300.

It is urged that Hodge v. Muscatine County ( 196 U. S. 276 ,279) is authority that the “ penalty tax ” is in true sense a tax. There the State of Iowa, in section 5006 of its Code, forbade in general terms the manufacture, sale, exchange or disposition of cigarettes or cigarette paper, and in section 5007 provided that “ there shall be assessed a tax of three hundred dollars per annum against every person, partnership or corporation and upon the real property and the owner thereof, within or whereon any cigarettes * * * are sold or given away. * * * Such tax * * * shall be assessed, collected and

In that case the charge was denominated a tax; here it is denominated a “ penalty tax.” There it was annually assessed by the regular tax assessors. Here it is imposed by the court, and only where a judgment is rendered in an equitable action. There the proceeds of the tax were to be distributed in the same manner as other taxes. Here twenty-five per centum of proceeds of the charge shall be paid to the attorney representing the State in the injunction action, and the remainder, after payment of certain costs, “ shall be distributed in the same manner as fines collected for the keeping of houses of prostitution.” (§ 343-z.) It seems to us that in view of these distinctions, the analogy becomes illusory. In the Iowa statute there was ground for a possible inference that the Legislature was seeking revenue for the State by the imposition of an added burden upon a traffic which it was at the same time seeking to suppress. Here no tax was assessed by tax officials upon the traffic but was imposed by a judgment of the court of equity as an integral part of a judgment suppressing the traffic. It is in effect a penalty for an offense, and its proceeds are treated in the same way as a fine. The Legislature, since the offense was committed, has amended the statute by eliminating those features from the statute which were evidently intended to give to a penalty the outward appearance of a tax. It still leaves the distribution of its proceeds as it was. Though the amendment to the statute has no application here, it sheds some light upon the true nature of the charge. That part of the statute

The judgment should be affirmed, without costs. Cardozo, Ch. J., Pound, Crane, Kellogg, O'Brien and Hubbs, JJ., concur.

Judgment affirmed.