Omaha daily bee., 1914-05-05
OMA HOTEL CASE REVERSED
Supreme Court Differs from Lower
Court Decision.
FANNING SHOULD BE A PARTY
I'm possible to Ascertain what Part
of Furniture should ne seEre-
gated, but Place Held to
he Nuisance.
tFrom a staff Correspondent

tfrOm StaIf correspondent
LINCOLN, May A--(Special Telegram)
The supreme court in an opinion this
morning in the action brought by former
County Attorney English for an injunc-
ton against the operation of the Oma
hotel in violation Of the Albert law re-
verses the order OF the district court
to remove and sell the furniture, but af-
firms the district court as to closing up
the hotel and declares that Charles Il.
Tanning, owner Of the property. should
be made a party to the action as defend
ant
Courts Ruling
The action was brought to compel the
closing Of the hotel for one year and for
the sale Of the furniture, but the court
holds that 1T Is impossible to separate
the building into parts and to segregate
one portion as that in which the nuisance
existed. This being so, the only method
to abate the same was to. declare the
whole of the premises public nuisance
and abRte the same by the decree"
Therefore, the judgment of the district
court is reversed as to the order remov.
ing the furniture of the building and at
tirmed as to the remainder of the decree
relating to the closing of the hotel
The syllabus of the court in relation TO
the case reads:
Where a decree was rendered under
sections S7i4, SIS2, inc, r. g. 1912, declar-
Ing certain property a public nuisance and
en1oining the owner and occupant thereof
from further illegal acts and no appeal
Is taken therefrom, upon appeal from
further provisions OF the decree ordering
the furniture etc, removed and the
building effectually closed for a year,
that portion of the decree not appest ed
from Is a final adjudication as to the
existence OF the nuisance.
In q proceeding for an Injunction and
to abate a nuisance under said section
where II Is shown that persons not parties
to the suit are the owners of the furniture
in the building, the court is without
jurisdiction to order the furniture to be
removed and sold. In such case the
owners of the property sought to be
seized should be made parties defendant
to the action.
The provisions of the statute declaring
that the owner or lessee of any builfS
used for the purpose of lewdness, as
signation or prostitution is guilty of a
nuisance and that the building and the
furniture, fixtures, etc, contained therein
also constitute nuisance; providing for
an injunction against the continuance of
the same and for the abatement of the
nuisance are not in conflict with the
constitution of the United States or fire
constitution of this state.
Section S7S2, providing for the assess
ment of a tax of $500 against the prop
erty, and against the persons maintaining
the nuisance, and the payment of a por-
tion of the tax to the attorney prosecuting
the action, violates section /, article TX
of the constitution and section s, article
viii thereof. 1t is. therefore, void and
incapable of enforcement. This section,
however, was not an inducement to the
passage of the act and its elimination in
no wise affects it's validity.
The right to bring an action 10 abate
public nuiseneesh1ay be conferred upon
private individuals by the legislature.
Constituting sections S77g and 1881 to-
gether. 1t is held that it Is the intention
of the law that a building declared to be
a nuisance shall be closed effectually for
all purposes unless a bond to release
tion S7S1.