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04/01/76 STATE EX REL WAYNE COUNTY PROSECUTOR v.

April 1, 1976

STATE EX REL WAYNE COUNTY PROSECUTOR
v.
DIVERSIFIED THEATRICAL CORPORATION



Levin, J. Kavanagh, C. J., and Williams, Coleman, Fitzgerald, and Lindemer, JJ., concurred with Levin, J. Ryan, J., took no part in the decision of this case.

SYLLABUS BY THE COURT

1. Nuisance -- Obscenity -- Motion Pictures.

The showing of obscene films within a building is not the use of the building for the purpose of "lewdness" within the meaning of the statute providing that a place of lewdness, assignation or prostitution is a public nuisance (MCL 600.3801; MSA 27A.3801).

2. Nuisance -- Obscenity -- Motion Pictures.

The meaning of the words "lewdness, assignation or prostitution" in the statute providing that a place used for these purposes is a public nuisance is clear in the light of the history and purpose of such statutes and that meaning cannot properly be expanded by judicial construction to include a place in which obscene motion pictures are shown (MCL 600.3801; MSA 27A.3801).

The opinion of the court was delivered by: Levin

The Wayne County Prosecutor commenced an action under the statute providing that a place of lewdness, assignation or prostitution is a public nuisance against defendants Diversified Theatrical Corporation, Pussycat Theatres of Michigan, Inc., Lido Cinema Corporation, Highland Theatre Corporation, Leonard Brooks and Jean Schumer. The defendants operate motion picture theatres which show films found by an advisory jury to be obscene under state and Federal constitutional standards. The complaint sought an order of abatement of nuisances and an order closing the defendant's theatres which was granted by the Wayne Circuit Court, Thomas J. Foley, J. The Court of Appeals, V. J. Brennan, P. J., and J. H. Gillis and Bashara, JJ., affirmed with the modification that the injunction should apply only to the showing of the particular films involved (Docket No. 20165). Defendants appeal. Held:

The public nuisance statute was intended to apply to houses of prostitution and not motion picture theatres where sexual acts are not committed but are portrayed on the screen. The meaning of the words "lewdness, assignation or prostitution" is clear in the light of the history and purpose of these statutes and cannot properly be expanded by judicial construction.

59 Mich App 223; 229 NW2d 389 (1975) reversed.

The question is whether a statute which provides that a place of lewdness, assignation or prostitution is a public nuisance *fn1 can properly be applied to motion picture theatres that show films found to be obscene under state and Federal constitutional standards. *fn2

We assume, without deciding, that the films are obscene. *fn3 We conclude, however, that the statute was intended to apply to houses of prostitution and not motion picture theatres where sexual acts are not committed but are portrayed on the screen.

I

The Michigan statute is one of a number of "red light abatement acts", enacted in the early 1900s *fn4 to subject houses of prostitution to abatement as nuisances. The Iowa act, passed in 1909, served as a model for similar legislation in at least two other states. *fn5

These acts have been applied consistently to houses of prostitution. *fn6 In 1914, the Nebraska Supreme Court held that evidence that acts of prostitution had occurred at a hotel was insufficient to support a finding ...


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