All Texas Racing Ass'n v. State

• Decision Date: 10 April 1935
• Docket Number: No. 9733.,9733.
• Citation: 82 S.W.2d 151
• Parties: ALL TEXAS RACING ASS'N et al. v. STATE, by SHOOK, Crim. Dist. Atty.
• Court: Texas Court of Appeals

Page 151

82 S.W.2d 151

ALL TEXAS RACING ASS'N et al. v. STATE, by SHOOK, Crim. Dist. Atty.

No. 9733.

Court of Civil Appeals of Texas. San Antonio.

April 10, 1935.

Rehearing Denied May 1, 1935.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Suit by the State, by John R. Shook, criminal district attorney of Bexar county, against the All Texas Racing Association and others. From a judgment granting a temporary injunction, defendants appeal.

Judgment reversed, injunction dissolved, and cause remanded.

Conger, Low & Spears, of San Antonio, for appellants.

John R. Shook and W. C. Linden, both of San Antonio, for appellee.

BICKETT, Chief Justice.

This is an appeal by All Texas Racing Association, a corporation, and others, defendants below, from a temporary injunction granted at the suit of the state of Texas upon the relation of John R. Shook, criminal district attorney of Bexar county, Tex., plaintiff below, restraining and enjoining them from operating a pari-mutuel system of betting on the results of dog races run on certain premises located in Bexar county.

The questions presented on this appeal are: (1) Whether it is an offense under any provision of the Penal Code of Texas for one to keep a place where dog races are run and betting upon the results of such races is carried on under the pari-mutuel system; and (2) whether the operation of a place where dog races are run and betting upon the results thereof is permitted under the pari-mutuel system is subject to be enjoined as a nuisance under the provisions of articles 4664-4667, Revised Civil Statutes of Texas (1925).

Appellants were engaged in operating a race track upon which dogs were run and in conducting a pari-mutuel system of betting upon the results of such dog races. The place was located outside the city limits of the city of San Antonio. Numerous persons visited the place for the purpose of observing the dog races and betting on the results of the races. Special officers were in attendance to preserve the peace. No disorderly conduct or breach of the peace occurred at any time. The system of betting in vogue, described as the pari-mutuel system, was such that each person desiring to place a bet on the outcome of a dog race would purchase a ticket designating the dog selected by him with the agreement that all money paid in by all participants should be divided pro rata among those holding tickets on the winning dog after first deducting a charge of 10 per cent. of the amount of the ticket for the operators.

Appellants, by their pleadings and testimony, freely admit that the establishment was operated for the purpose of enabling persons to bet and gamble on the results of the dog races.

Article 625 of the Penal Code of Texas (1925) reads, as follows: "Art. 625. Keeping.—If any person shall keep, or be in any manner interested in keeping any premises, building, room or place for the purpose of being used as a place to bet or wager, or to gamble with cards, dice or dominoes, or to keep or to exhibit for the purpose of gaming, any bank, table, alley, machine, wheel or device whatsoever, or as a place where people resort to gamble, bet or wager upon anything whatever, he shall be confined in the penitentiary not less than two nor more than four years, regardless of whether any of the above mentioned games, tables, banks, alleys, machines, wheels or devices, or things are licensed by law or not. Any place or device shall be considered as used for gaming or to gamble with or for betting or wagering, if any money or anything of value is bet thereon, or if the same is resorted to for the purpose of gaming or betting."

Article 4664 Revised Civil Statutes of Texas (1925) reads, as follows: "Art. 4664. Nuisance.—Any hotel, rooming house or boarding house, country club, garage, rent car stand or other place to which the public commonly resort for board or lodging or commonly congregate for business or pleasure, where intoxicating liquors are kept, possessed, sold, manufactured, bartered or given away, or to which persons resort in assembling of two or more persons to the room for the purpose of drinking intoxicating liquor, or where intoxicating liquors are furnished to minors or to students of any educational institution, or where persons resort for the purpose of gambling, or for the purpose of prostitution, is hereby declared to be a common nuisance. Any person who knowingly maintains or assists in maintaining such a place is guilty of maintaining a nuisance."

Article 4667, Revised Civil Statutes of Texas (1925) reads in part as follows: "Art. 4667. Gaming and disorderly houses. —The habitual use, actual, threatened or contemplated, of any premises, place or building or part thereof, for any of the following uses shall be enjoined at the suit of either the State or any citizen thereof: 1. For gaming or keeping or exhibiting games prohibited by law."

Other articles of the statute authorize the district attorney to institute suit in the name of the state to abate and enjoin the maintenance of such a nuisance as is described and referred to in the two articles last mentioned.

A brief review of the subject of the penal laws affecting gambling in this state may be helpful by way of preface to a consideration of the question as to whether betting on dog races is now prohibited by any provision of the Penal Code. It was specifically held by the Supreme Court of Texas in Dunman v. Strother, 1 Tex. 89, 46 Am. Dec. 97, that there was no statute then in existence in Texas forbidding wagers on horse races. Likewise, in McElroy v. Carmichael, 6 Tex. 454, it was held that betting on horse races was not unlawful under the act of 1848, which declared that persons betting at any gaming table, bank or banks, "or at any other gambling device" should be guilty of an offense and punished as prescribed. The Supreme Court, holding that a horse race is not a gambling device, there said: "This reasoning applies with full force to the game of horse racing, if game it can be called. It is, at least, an unusual application, if not a misapplication, of the term. The sport of horse racing has, for centuries, been known by its distinctive designation. It is not prohibited by the law of the land; and it is understood that all attempts in the legislature, for that purpose, have failed; and it cannot be presumed that a prohibition against this well known sport, would lurk under the disguise and cloak of the vague phrase, `gambling device,' and this in a statute in which certain games were prohibited by name." In Pierce v. Randolph, 12 Tex. 290, the Supreme Court again held that betting on horse races was not prohibited by law. In that connection, the court added: "It is the duty of both Judges and juries to decide on rights according to the laws of the land, and not on their belief of what ought to be law. Their office is not legislative; it is judicial; it is to administer the law as they find it, and not to exalt their own belief or notions above the law, and follow these as a higher code...