New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-05-23
oCoNTRA RoNUs 11oREs.,,
Rents for an immoral HOuse-The Tenan
must Pay Important Supreme COur
Decision,

lowing opinion was rendered Dy AssOcldJo
Justice Taliaferro, Justice Howell dissent
ing. 1t is important as reversing decision
in the lever court:
Gilbert Lyman VS.. Kate Townsend.-Ap-
peal from the Fifth District Court for the
parish of Orleans. This is suit on con-
tract of lease. The plaintiff alleges that he
leased to the defendant house in New Or
leans, on CustomhOuse street, for term of
five years from December l, 1866, at the
rate of 5000 month, payable In advance;
that the defendant has failed to pay the
rent in accordance with the contract, and
specifies certain sums due and to become
due, for which he prays Judgment. He
seized Professionally the furniture in the
house in virtue of his lien as lessor.
The defendant AYERS that, in conformity
with her engagement, she paid the rent at
the rate of $200p mOnth5up to the first
of February, 1868, and since that time she
has paid, by agreement with and consent of
the plaintiff, $50 per month, as eompensa-
ton in full for the rent per month. She
further alleges that the building that
she leased from plaintiff was used
as a house of prostitution, and in
tended so to be used at the time the lease
was made, and that with the knowledge
and consent of the plaintiff; that the con-
tract is void, as being one reprobated by
law. and contrary to good morals.
There was judgment in the court below
as of non-suit, and the plaintiff has ap-
pealed.
1t will, in the first place, be proper to in
quire whether the keeping of brOthels or
houses of prostitution is prohibited by law.
By the Statutes of 1855, relative to crimes
and offenses, page LA, section ninety-two,
under the head of Offenses against public
order, health and police, it Is enacted:
IL. vDEf
any disOrderly inn, tavern, ale house, tip
pling house or brothel, shall suffer fine or
imprisonment or both, at the discretion of
the court and the offender may likewise
be adiudged to forfeit his license to keep
house of public resort or entertainment"
The prohibition here expressed is not
against the keeping of houses of the kind
mentioned, but against the keeping of dis
orderly houses of the character specified
In the case of the city of New Orleans VS..
Eliza CASTILLO ia Annual, page 81, this
court said, in reference to this ninety-secOnd
section of the act of 1855, that 1t does not
prevent the city from levying a tax upon
bOarding-hOuses kept for these people
tmeaning lewd wOmen), provided they do
not license disOrderly houses of this class.
The city, heretofore, levied "an annual IL
cense tax of two hundred and fifty dollars
upon each and every person keeping any
renting rooms to or boarding leWd and
abandoned women"
Whether such license tax is now enforced
or not, we are not apprised. The city
clearly has the right to enforce a license
tax of that kind. 1t appears that, by Ordi-
nance of the city, certain districts and lOcali-
ties are defined within which alone the
keeping of houses of the class mentioned
in the ninety-seeond section of the act of
.1zr foI md 10 hot 4Ia
house leased by the plaintiff to the defend
ant is situated within one of these districts.
1t seems, then, that no law of this State
prohibits the disreputable calling or Occu-
patton which the defendant in this case is
not slow in admitting that she is engaged
in. 1t permits such trade or occupation on
the condition that it be prosecuted in an or
derly manner, and within certain specified
limits.
Homes are indispensable for the shelter
and lodgment of the persons so employed.
Is it unlawful for the owner to lease a
house for such purposes If his fate be so
cast that his buildings fall within localities
in some sense degraded by the laYmaker,
subiecting them to the annoyance of public
brothels, should he be debarred from de-
irving revenues from the lease of his build
ings to be used for such establishments
He is required to pay pro rata tax upon
his property, which, it might be, from its
unfortunate location, could not be leased
for any other purpose. The question may
be answered by recurring to the right we
find that persons of the class of the defend
ant possess under the law to keep houses of
i'll fame. With that right they are implied
" vested with the right to buy or lease
buildings for their business.
The right to lease house to be used for
the purposes of a brothel implies cores
pOnding right in the owner to let a house
for that purpose.
Contracts for such purposes are repul-
sive to the moral sense, but when allowed
by law, what warrant is there for declaring
them null as being contrary to good morals!
Courts have not to deal with the question
whether laws sanctioning contracts of the
kind are wise or unwise; upon the legis-
latOr is imposed that difficult and migrate
full task. 1t is for him to encounter the
danger of passing between Scylla and
Charybdis 1t is for him in pOldering the
vexed problem to view society just as it is
and not as we desire it should be. His
trouble in this direction is that he can raise
mans moral standard no higher than his
physical condition will permit. 1t is for
him to divine in regard to these things,
whether from necessity great evils must
not be tolerated in order that greater ones
may be avOided-whether he should miti-
gate even if it be at the expense OF enact
ments offensive to the moral sentiment of
many deep-rOoted evils which he is unable
successfully to combat Upon such basis
many of the strong thinkers of the present
day are inclined to legislate.
In the case now under consideration, if
we should decide the issue adversely to the
plaintiff there would be presented the awk-
ward anomaly of the defendant being able
legally to lease the plaintiffs house for dis
reputable purposes, and after having used
it for many months, avoid payment accord
ing to contract by openly avOwing her own
turpitude, in pleading in defense her viola
ton of morals in the use to which she put
the premises leased. To annul the contract
in the interest of defendant would seem to
outrage morals at least as much as it would
to enforce it in behalf of the plaintiff.
As opposed to the views here intimated,
we are referred to the decision of this court
in the case of Kathma VS.. Walters, TWEEN
ty-second annual, page 54. The opinion in
that case, after a more thorough and
deliberate consideration of the subject,
we are not inclined to sustain. In the
case at bar, we think that the plaintiff
should prevail. 1t is, therefore, ordered
that the judgment appealed from be annul-
ed, that the plaintiff have judgment in his
favor against defendant, as follows: That
he recover from defendant the sum of $500,
with legal interest on 5000 thereof from the
first of December, 1868; with legal interest;
on the like sum of 5000 from January, 1869,
like interest on the like sum from the first
of February, 1869, and like interest on like
sum from the first of March, 1869; that he
! recover from the defendant the further sum
of $4,000, with legal interest upon the sew
eraI installments comprising that sum as
thev severally become due, according to
| the terms of the written contract of the
parties; legal interest to be computed com
| mencing on the first of April, 1869, for 5000,
and SO successively on each subsequent in