State ex rel. Lundin v. Humphrey, 94 Wash. 599, 162 Pac. 983


           STATE EX REL. LUNDIN v. HUMPHREY.           599
 Feb. 1917          Opinion Per Curiam.

      [No. 13340. Department One. February 9, 1917.]
THE STATE OF WASHINGTON, on the Relation of Alfred H.
      Lundin, Respondent, v. JESSE J. HUMPHREY et al.,
                     Appellants. 1


TEMPORARY CESSATION. Under the "Red Light" law, Rem. Code.

SS 946-2, which provides for an action of abatement, "whenever a
nuisance exists," and Id., SS 946-8, authorizing a fine against
any owner of a building used for prohibited purposes whenever a
percent injunction issues in such action, it is nat a defense to
the action that the property was not being used for the purposes
of prostitution at the time the action of abatement was commenced
nor since, where it appears that the owners knew it was being so
used and made no effort to abate the nuisance after arrests had
been made, nor until after the commencement of the abatement action;
a temporary cessation of unlawful practices not being sufficient
where it is presumable that they would have been continued but for
the abatement action.

Appeal from a judgment of the superior court for King
county, Gilliam, J., entered August 11, 1915, in favor of
the plaintiff, in an action to abate a nuisance, tried to the
court. Affirmed.

Peterson & Macbride, for appellants.

Alfred H. Lundin and Frank P. Helsell, for respondent.

PER CURIAM. - This is a proceeding to abate as a nuisance
the conducting of a house of prostitution in the city of
Seattle, and to enforce against the property the penalties
prescribed by the statute. The property in question is owned
by the appellant Kristine Humphrey. It was leased to a
Japanese sometime in the year 1913 as a lodging house, who
conducted it as such until the early part of the year 1914,
when, with the consent and approval of the appellants, he
assigned the lease and turned possession of the property to
one Mabel Roberts. Later on, Mabel Roberts, again with

1 Reported in 162 Pac. 983.

                Opinion Per Curiam.                94 Wash.

the consent and approval of the appellants, reassigned the
lease and delivered possession of the property to one Evelyn
Reede. After the assignment by the Japanese, the house was
conducted by the women named as a house of prostitution.

In July and December, 1914, and again on January 16, 1915,
the lessees and certain inmates of the building were arrested
and fined under the criminal statutes for engaging in
prostitution. After the final arrest in January, 1915, the
inmates of the house abandoned it; Evelyn Reede, who then owned the
furniture, selling it to one Joseph Haten for a stated
consideration of $500.

This action was instituted on January 27, 1915, some
eleven days after the final arrest. Between the dates of the
arrests, the house was in charge of two elderly people who
had taken up their residence in the house some time prior
to January 16, 1915, and remained therein after that time
at the request of Haten. Later on, the appellants
repossessed themselves of the premises and again let it to a
Japanese. Since the arrest in January, 1915, there is no showing
in the record that the house was conducted as a house of
prostitution. The appellants testified that it had not been
so conducted, and testified, also, that they had no knowledge,
prior to the time of the last arrest, that it had ever been so
conducted. It appeared, however, that they resided at all
times in a dwelling house situated within ninety feet of the
building, and that it was common knowledge in the
neighborhood that it was being so conducted, frequent complaints to
that effect being made to the police. It appeared also that
the appellant Jesse J. Humphrey collected the rents for the
building monthly during the time it was occupied by the
women named, going to the house for that purpose.

The trial court entered a decree granting a permanent
injunction abating the nuisance, ordered the furniture in the
building to be removed and sold, and assessed against the
building and the grounds upon which it is situated and
against the owners of the property a tax of $300. This

           STATE EX REL. LUNDIN v. HUMPHREY.           601
 Feb. 1917          Opinion Per Curiam.

peal raises the question whether the tax is legally assessed.

By SS 946-2 of Remington's Code, it is provided:

"Whenever a nuisance exists, as defined in this act, the
prosecuting attorney or any citizen of the county may
maintain an action in equity in the name of the State of
Washington upon the relation of such prosecuting attorney or
citizen, to perpetually enjoin said nuisance, . . ."

By SS 946-8, it is provided:

"Whenever a permanent injunction issues against any
person for maintaining a nuisance as herein defined, or
against any owner or agent of the building kept or used for
the purposes prohibited by this act, there shall be assessed
against 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. "

The trial court found from the evidence - and we think the
finding justified - that the appellants knew of the use to which
the lessees had put the premises long before the last arrest
of the lessees in January, 1915. The evidence justifies the
conclusion, also, that the appellants themselves made no
effort to abate the nuisance or to put the premises to legitimate
uses until after the commencement of the present action. But
since the evidence fails to show that the premises were
occupied by prostitutes or that acts of prostitution were
practiced thereon subsequent to January 16, 1915. The appellants.
contend that the tax levied against the premises was
unjustified. Attention is called to the fact that the language of
the first section quoted is in the present tense - that the
action may be begun "whenever a nuisance exists" - and
argued that, since the nuisance ceased at the time of the last
arrest, no nuisance existed at the time the action was begun
some days later, and hence the action will not lie. But we
think this contention not justified. The appellants
themselves made no effort to abate the nuisance until after the
commencement of the abatement action. The cause for
abatement was the activity of the police officers. The appellants'

                     Syllabus.                    94 Wash.

activity commenced on the commencement of the abatement
action. Having shown a disposition to allow the law to be
avoided, it is presumable that they would have continued to
do so but for the abatement action. A temporary cessation
from the unlawful practices is not enough. The state has
the right to resort to all the remedies afforded to make the
cessation perpetual. Since, therefore, the action was
necessary to arouse the owners to activity, we think the court was
justified in imposing the penalties the remedy afforded.