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District Court of Appeal, First District, Division 2, California.

PEOPLE v. LIM et al.*

Civ. 11441

Decided: March 18, 1941

Anthony Brazil, Dist. Atty., of Salinas, Earl Warren, Atty. Gen., and Warren Olney and Herbert E. Wenig, Deputy Atty. Gen., for appellant. Harry L. Noland, of Salinas, and James M. Hanley, of San Francisco, for respondent.

The plaintiff sued to restrain the operation and maintenance of, and to abate as a public nuisance a public gambling house in the city of Monterey. The action was instituted by the district attorney of Monterey County upon a complaint alleging in detail the manner of operating the gambling place, the character and variety of the several gambling devices indulged in, and the difficulties encountered by the peace officers of the city and of the county in controlling the activities of the defendants. It is further alleged “That the maintenance, existence, operation, and conduct of said gambling games by the owners and operators thereof has in the past constituted and does now and will in the future constitute the keeping of a gambling house, a public nuisance, to the extent that the keeping of said gambling house is injurious to the health, is indecent, and offensive to the senses and interferes with the free use of property, the comfortable enjoyment of life and property of the people of the State of California, and particularly that portion thereof referred to in the next succeeding paragraph, for the reason that it tends to and does in fact debauch and corrupt the public morals, encourage idle and dissolute habits, draws together great numbers of disorderly persons, disturbs the public peace, brings together idle persons and cultivates dissolute habits among them, creates traffic and fire hazards, and is thereby injurious to health, indecent and offensive to the senses and impairs the free enjoyment of life and property.” The defendant Eddie Lim alone appeared and filed a general and special demurrer to the complaint. This was sustained and the people appeal.

The primary question argued by appellant is whether a public gambling place is enjoinable by the state as a public nuisance. It is the position of the respondent that since the statute does not include a public gambling place in its definition of public nuisances they are not enjoinable under section 731 of the Code of Civil Procedure. Appellant takes the position that such places were nuisances per se in the common law and that the statute has not eliminated them as such. We are in accord with the views expressed by the appellant and for that reason the judgment must be reversed.

There can be no doubt that a gambling house was treated as a nuisance per se at the common law. In 46 Corpus Juris, page 700, it is said: “In a broad sense the term ‘disorderly house’ includes bawdyhouses, common gambling houses, and places of like character. The specific kinds of disorderly houses which are regarded at law as nuisances per se are bawdyhouses and gambling houses; and such houses are per se nuisances at common law whether or not they are conducted in such manner as to amount to a disturbance of the public peace.” See Wood on Nuisances, 3rd Ed., 1893, vol. 1, pp. 45, 46, 63. Sections 3479 and 3480 of the Civil Code read: “Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway is a nuisance.” and “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” At the same session when these sections were enacted the legislature enacted section 4468 of the Political Code which reads: “The common law of England, so far as it is not repugnant to or inconsistent with the constitution of the United States, or the constitution or laws of this state, is the rule of decision in all the courts of this state.”

Does the enumeration in the code sections of certain offenses as nuisances abrogate the common law rule that other offenses equally obnoxious are nuisance per se? We can find no sound reason for holding that it does. To our minds the true rule is stated in Re Estate of Elizalde, 182 Cal. 427, 432, 433, 188 P. 560, 562, where it is said: “In this state the common law, except so far as it is inapplicable to our conditions, or has been modified by statute, still remains in force. This principle is referred to in the Estate of Apple, 66 Cal. [432] 434, 6 P. 7, where the court said: “ ‘The Code establishes the law of this state respecting the subjects to which it relates;” but this, of course, does not mean that there is no law with respect to such subjects except that embodied in the Code. When the Code speaks, its provisions are controlling, and they are to be liberally construed with a view to effect its objects and promote justice—the rule of the common law that statutes in derogation thereof are to be strictly construed having been * abolished here; but where the Code is silent, the common law governs.’

“The common law of England is declared to be the rule of decision in all the courts of this state so far as not repugnant to or inconsistent with our Constitution and statutes. Pol.Code, § 4468. The Civil Code was not designed to embody the whole law of private and civil relations, rights and duties; it is incomplete and partial; and, except in those instances where its language clearly and unequivocally discloses an intention to depart from, alter, or abrogate the common-law rule concerning a particular subject-matter, a section of the Code purporting to embody such doctrine or rule will be construed in the light of common-law decisions on the same subject. Siminoff v. Goodman & Co. Bank, 18 Cal.App. 5, 11, 121 P. 939.” To the same effect is Stiles v. Laird, 5 Cal. 120, 122, 63 Am.Dec. 110, where the court said: “The statute of this State defining what are nuisances and prescribing a remedy by action, does not take away any common law remedy in the abatement of nuisances which the statute does not embrace.” See, also, Farmer v. Behmer, 9 Cal.App. 773, 781, 100 P. 901; Weis v. Superior Court, 30 Cal.App. 730, 733, 159 P. 464; People v. Glenn–Colusa Irr. Dist., 127 Cal.App. 30, 38, 15 P.2d 549; and People v. Truckee Lumber Co., 116 Cal. 397, 400, 48 P. 374, 39 L.R.A. 581, 58 Am.St.Rep. 183.

There is nothing in the statutes referred to which would support a conclusion that the legislature, in enumerating certain specific acts as nuisances, intended to exclude all those acts known to be such at the common law. When the maxim expressio unius est exclusio alterius is invoked the decision must rest upon a determination of the legislative intent, and, under the well-settled doctrine that repeals by implication are not favored, it must clearly appear from the legislation that the abrogation of settled rules of the common law was intended before it will be held that the statute brought that result.

The respondent argues that the district attorney was without authority to maintain the action in the name of the people because section 731 of the Code of Civil Procedure authorizes him to sue “to abate a public nuisance, as the same is defined in section thirty-four hundred and eighty of the Civil Code”. The section referred to merely states that “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons.” It should be noted that section 731 of the Code of Civil Procedure makes no reference to section 3479 of the Civil Code, and also that section 4156 of the Political Code provides that “The district attorney may, and when directed by the board of supervisors must, bring a civil action in the name of the people of the state of California, to abate a public nuisance in his county.” This authority was sustained in Weis v. Superior Court, 30 Cal.App. 730, 733, 159 P. 464.

There is no merit in the special demurrer. If any of the allegations relating to the harmful results of the activities complained of should be deemed conclusions rather than statements of fact, they were surplusage and may be disregarded.

The judgment is reversed with directions to overrule the demurrer.

NOURSE, Presiding Justice.