Albright v. Karston

• Decision Date: 15 November 1943
• Docket Number: 4-7254
• Parties: Albright v. Karston
• Court: Arkansas Supreme Court

176 S.W.2d 421

206 Ark. 307

Albright v. Karston

No. 4-7254

Supreme Court of Arkansas

November 15, 1943

Appeal from Pulaski Chancery Court; Taylor Roberts, Special Chancellor.

Reversed.

John P. Vesey and Murphy & Wood, for appellant.

Owens Ehrman & McHaney, for appellee.

Robins J. McHaney, J., not participating. McFaddin, J., concurring.

OPINION

ROBINS J.

The relief sought in this case by appellee (plaintiff below) was an injunction against appellants, the superintendent and assistant superintendent of the Arkansas State Police (defendants below) to prevent them "from molesting plaintiff or his property any further." The grounds on which this relief was sought were that no proper affidavit for the search warrant under which the State Police made one search and seizure on appellee's premises was filed with the justice of the peace before the issuance of the warrant, that the justice of the peace had no power to issue the search warrant; that the members of the State Police had no authority to serve same, and, finally, that the tables, blackboards, and other articles found by appellants in appellee's "bookmaking" establishments and seized and destroyed by them were not gambling devices within the meaning of the statute. The lower court held that the members of the State Police had no authority under the law to execute a search warrant and decreed that the appellants be "permanently enjoined from seizing, destroying, or otherwise damaging plaintiff's property in the city of Hot Springs, Arkansas, known as the Kentucky Club and located at 314 1/2 Central Avenue, or his property known as the White Front and located at 310 1/2 Central Avenue, Hot Springs, Arkansas." The decree of the lower court also directed that appellants return to appellee a clock and radio taken by them from appellee's premises. This appeal followed.

The undisputed testimony established that appellee was carrying on in each of the places mentioned in the complaint, and for which protection by injunction was sought, what is commonly known as a "bookmaking" establishment, wherein wagers were made on horse races being run at tracks in various parts of the United States, and further that appellee was making these bets with his customers, paying same when the customer won, and retaining the amount wagered when the customer failed to win.

Section 3355 of Pope's Digest of the Laws of Arkansas is as follows: "Hereafter it shall be unlawful to bet in this state, directly or indirectly, by selling or buying pools or otherwise, any money or other valuable thing, on any horse race of any kind whether had or run in this state or out of this state."

By § 3322 of Pope's Digest it is provided: "Every person who shall keep, conduct or operate, . . . any gambling house or place, . . . where gambling is carried on, . . . shall be deemed guilty of a felony. . . ."

Chief Justice Hill, in the case of State v. Vaughan, 81 Ark. 117, 98 S.W. 685, 7 L. R. A., N. S. 899, 118 Am. St. Rep. 29, 11 Ann. Cas. 277, said: "There is no possible excuse under the law for a poolroom -- a place maintained for carrying on or facilitating betting on horse races or any other sport or game or contest or other event upon which wagers are laid -- to exist in Arkansas for one minute. Its maintenance is a crime, nothing more, nothing less." It is held in the same case (headnote 2): "A turf exchange . . . wherein money is received, won and lost on horse races, where tickets for pools on horse races to be held in this state and elsewhere are bought, sold and cashed, . . . is a nuisance at common law."

While there are decisions in which a contrary view is expressed, the weight of authority in this country supports the holding that an establishment maintained for the purpose of receiving and making bets on horse races is a gambling house, regardless of whether the act of betting on a horse race is forbidden by statute, as it is in Arkansas.

In the case of Thrower v. State, 117 Ga. 753, 45 S.E. 126, the Supreme Court of Georgia held (headnotes 4 and 5) that "betting on a horse race came within the meaning of the Code; that one who maintained a house for the purpose of such a game was guilty of keeping a gaming house, even though betting on a horse race was not prohibited by statute and the race was run in a different state."

The Supreme Court of Illinois, in the case of Swigart v. People, 154 Ill. 284, 40 N.E. 432, sustained a conviction of Swigart on an indictment for keeping a gaming house on proof that he maintained a betting room where "bookmaking" on horse races was carried on.

In re Opinion of the Justices, 73 N.H. 625, 63 A. 505, 6 Ann. Cas. 689, it was held by the Supreme Court of New Hampshire that a place where betting, "bookmaking" or pool selling on horse races is promoted or permitted was a common gambling place.

The Court of Appeals for the District of Columbia, in the case of Miller v. United States, 6 D. C. App. 6, held that a horse race was a game of chance within the meaning of a statute prohibiting the setting up or keeping of any kind of gambling device adapted or designed for playing any game of chance for money.

The decisions in the cases of State v. Shaw, 39 Minn. 153, 39 N.W. 305; People v. Weithoff, 51 Mich. 203, 16 N.W. 442, 47 Am. Rep. 557, and Church v. State, 151 Fla. 24, 9 So.2d 164, all are to the effect that use of a room for the purpose of receiving and making bets on horse races constituted keeping of a gaming room or gambling house.

This court, in the case of Fox v. Harrison, 178 Ark. 1189, 13 S.W.2d 808, held that, even in the absence of a statute specifically forbidding betting on dog races, such betting was nevertheless a violation of the law; and, in that case, we affirmed the decree of the chancery court, refusing to enjoin certain officers from interfering with the operation of the dog racing track.

The testimony showed beyond any doubt that appellee was operating a gambling house. Appellee invoked the extraordinary process of the chancery court in order that he might operate his gambling house hereafter without molestation from the State Police. A gambling house was a public nuisance at common law, and the operation of a gambling house has by statute been made a felony in Arkansas. So, we have here a suitor who impliedly admits that he has been maintaining a public nuisance, and has been committing a felony in doing so, coming into a court of equity and asking that he be protected in his continued maintenance of this nuisance and in his continued commission of this felony. Merely to state the position of appellee is to show the inherent weakness thereof. A court of chancery is a court of conscience and can never be called into activity for the protection of an enterprise that is not only wrong in itself but made a felony by statute.

In Pomeroy's Eq. Jur., 3rd Ed. vol. 1, p. 658, the rule is stated thus: "The principle was established from the earliest days, that while the court of chancery could interpose and compel a defendant to comply with the dictates of conscience and good faith with regard to matters outside of the strict rules of the law . . . while it could act upon the conscience of a defendant and force him to do right and justice, it would never thus interfere on behalf of a plaintiff whose own conduct in connection with the same matter or transaction had been unconscientious or unjust. . . ." In the same volume, at page 657, it is said: "Whenever a party, who, as actor, seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience, or good faith, or other equitable principle in his prior conduct, then the doors of the court will be shut against him in limine; the court will refuse to interfere on his behalf, to acknowledge his right, or to award him any remedy."

Mr. Justice Wood, in the case of O'Connor v. Patton, 171 Ark. 626, 286 S.W. 822, said: "'He who comes into equity must come with clean hands,' or, as it is sometimes expressed, 'He that hath committed iniquity shall not have equity.'"

The Supreme Court of Indiana, in the case of Pittsburg, C., C. & St. L. Ry. Co. v. Town of Crothersville, et al., 159 Ind. 330, 64 N.E. 914, said: "It is a well-settled maxim that he who comes into equity must come with clean hands. Here appellant, under the facts found, seeks the aid of equity to enjoin the appellees from abating a public nuisance maintained by it, on the ground that they have no right to abate it. To grant such relief to appellant, who is maintaining the public nuisance, would be contrary to the well-settled principles of equity. Fet. Eq., pp. 37-40; Bisp. Eq. (6th Ed.), pp. 61-63; 1 Spell. Inj. & Extr. Rem., § 26; 11 Am. & Eng. Enc. Law, (2d Ed.) pp. 162, 163; Albertson v. Laughlin, 173 Pa. 525, 34 A. 216, 51 Am. St. Rep. 777; Unckles v. Colgate, 148 N.Y. 529, 43 N.E. 59; Cassady v. Cavenor, 37 Iowa 300; Central Trust Co. v. Wabash, St. L. & P. Ry. Co., (C.C.) 25 F. 1; Floral Co. v. Bradbury, (C.C.) 89 F. 393; Board of Trade of City of Chicago v. O'Dell Commission Co., (C.C.) 115 F. 574. To grant appellant the relief prayed for under the facts found would be to aid it in maintaining a public nuisance -- a crime under the laws of this state. It follows that, even if appellant's contention that appellees had no authority to abate said public nuisance is correct, . . . the conclusions of law are not erroneous."

In deciding a case much like the one at bar, the appellate division of the Supreme Court of New York, in the case of Weiss v. Herlihy, 23 A.D. 608, 49 N.Y.S 81, said: "But, if the rights he asserts, and for the protection of which he asks the interposition of the equitable power of the court, are in themselves essentially illegal, or a violation of the law, then...