City of Wink v. Griffith Amusement Co., 6899.
| Decision Date | 30 December 1936 |
| Docket Number | No. 6899.,6899. |
| Citation | 100 S.W.2d 695 |
| Parties | CITY OF WINK v. GRIFFITH AMUSEMENT CO. |
| Court | Texas Supreme Court |
Suit for injunction by the Griffith Amusement Company against the City of Wink, wherein a cross-suit for injunction was filed. Judgments for plaintiff were affirmed by Court of Civil Appeals , and defendant brings error.
Judgments of trial court and Court of Civil Appeals reversed; suit and cross-suit dismissed.
A. T. Folsom, of Wink, for plaintiff in error.
H. E. Wassell, of Wink, for defendant in error.
The full statement of the case in the opinion of the Court of Civil Appeals will suffice for the purposes of this opinion.
The Griffith Amusement Company, a corporation, was engaged in operating a moving picture theater in the city of Wink, in Winkler county. One day in each week it conducted what is designated as "Bank Night." What the "Bank Night" feature was and how it was operated, and the result thereof, is stated in defendant in error's petition in the following language:
"Plaintiff alleges that for several months prior to the passage of the ordinance complained of, the plaintiff as a part of its weekly business, advertised and conducted what is termed its bank night; that on a certain night of each week it will give thirty-five dollars to any person present who has registered at the theater; a number is drawn by Judges selected from the audience; that it is not, necessary for the person who wins the prize to be actually in attendance in the theater, it is not necessary for him to have ever been in attendance in the theater or to have ever purchased a ticket, provided he registered his name in the book that was left open at the ticket window for the public to register their names; that there was no charge whatever made as a condition of registration, that this idea of holding bank night is a copyrighted idea that the plaintiff pays for; that it is in operation throughout the entire country, and is a special means of advertising; that by virtue thereof the ticket sales at plaintiff's theater on the nights that it holds bank nights are greatly increased, and will amount to approximately $100.00 to $200.00 per week more than its revenue would amount to when not being permitted to operate its bank night; such plan induces increased attendance and acquaints the public with the high class pictures presented at such theater; that without being able to hold bank nights the patrons will fail to attend the theater, and that the loss by reason of the failing of the attendance will amount to at least $100.00 per week or more for every week in the future."
The operation of the "Bank Night" prize drawing proved a very valuable source of income to the theater, the relative weekly returns from the "bank night" operations being on the average $178.98 more than were received prior to the institution of the plan. The giving of right by a registration number to the drawings "free" or without the customer buying a theater ticket was not "pushed" or featured to any very great extent. In fact, the witness DeIrio, the manager of defendant in error, testified that the fact that the public could obtain registrations free entitling them to a "chance" at the prize to be drawn was not generally known to the public — that he did not try to make it "too public, that it was never advertised."
The actual money returns on "bank night" would suggest that if any free numbers were ever distributed, they were negligible. We gather from the whole testimony that the so-called "free number" feature was largely one that existed in the minds of those who operated the theater, and that it was never made a real active part of the "bank night" plan. True, no doubt if any one had applied for a free registration to the drawing, it would have been given, but human nature is such that the average person would seldom, if at all, suffer the natural embarrassment of asking for a free registration. Indeed, if this were not so, the income from "bank nights" would not have been substantially more than that which had obtained prior to the operation of the plan. In fact, the whole plan is built up and made profitable because no normal person likes to "bum" his neighbor for something, and by an appeal to the psychology of cupidity which makes some take a chance of making large gains by a small outlay. Those who invented and formulated the plan may not have been "learned in the law," but their knowledge of mass-psychology was not wanting.
The action was brought by the Griffith Amusement Company to restrain the city of Wink and certain of its officers from enforcing the provisions of a city ordinance, which is copied in full in the opinion of the Court of Civil Appeals.
The first section of the ordinance reads as follows:
Section 3 of the ordinance, prescribing a penalty for its violation, reads:
The city of Wink and its officers answered in the usual way, and by cross-action asked that the defendant in error be enjoined from conducting the "Bank Night" drawings at its theater in the city, as had been its custom. The trial court granted a temporary injunction, restraining the city and its officers from enforcing the ordinance involved, as prayed for by the defendant in error, and denied the application for temporary injunction asked by the city in its cross-action. Upon appeal, the judgments of the trial court were affirmed by the Court of Civil Appeals. The application for writ of error granted by us was on behalf of the city and its officers.
We agree with the Court of Civil Appeals that the ordinance involved is void, for reasons well stated by that court. The inhibitory provisions of section 1, quoted above, are broad enough to include lotteries. It may be that they also include "gift enterprises" not within the provisions of the state lottery statute, but the descriptive language used contains no exceptions, and by section 3 one penalty is provided for the offense, or offenses, defined by section 1. The State Penal Code does not define a lottery, but our courts have interpreted it in accordance with public usage, to mean a scheme or plan which provides for a distribution of prizes by chance among those who have paid, or agreed to pay, a consideration for the right to participate therein. 28 Texas Jurisprudence p. 409, § 2, and cases cited in the notes.
Article 654 of the Penal Code provides as a penalty for establishing a lottery a fine of "not less than one hundred nor more than one thousand dollars." The penalty prescribed by the ordinance in question, as shown above, is a fine "not exceeding ($100.00) One Hundred Dollars, and each day of violation shall be a separate offense." It will at once be observed that the penal provisions of the ordinance are different from those contained in the State Penal Code, although both acts cover the offense of conducting a lottery. The rule is definitely established with us that the penal provisions of an ordinance cannot be different from those of the Penal Code for the same offense, and that ordinances in conflict with the general or state law are void. 30 Texis Jurisprudence p. 301, § 167, p. 304, § 168, and cases cited in the notes; El Paso Electric Co. v. Collins (Tex.Com.App.) 23 S.W.(2d) 295, 296.
The Court of Civil Appeals, however, although holding that defendant in error's "Bank Night" plan was a lottery, and its operation a violation of the law, and that it "is not entitled to the injunctive relief prayed for," nevertheless affirmed the judgment of the trial court, saying:
"However, appellee, we think, can properly complain that the city of Wink is prosecuting and undertaking to enforce a void penal section of its ordinance."
The Court of Civil Appeals also affirmed the judgment of the trial court refusing to grant a temporary injunction in favor of the city of Wink. This was manifestly correct, because, since sections 1 and 3 of the ordinance were void for the reasons stated above, the whole ordinance was void, all sections being interdependent and related to these sections. In so far as it might be said that the city had the right to enjoin the defendant in error from conducting a lottery in violation of the state law, the answer is that the statute has made no provision for the powers of a court of equity to be invoked by a municipality to prevent the violation of the lottery laws of the state as such.
In so far as it may be said that the city had the right to enjoin the defendant in error, and abate the nuisance created, if any, by its "Bank Night" operations, in causing crowds to gather on the streets and sidewalks, etc., in such manner as to obstruct the use thereof, and to create fire hazards, the pleading and the evidence show that the defendant in error was no longer announcing its drawings in such a manner and at such a time and place as would cause such gathering of people or the creation of such a public nuisance.
The Court of Civil Appeals held, as stated, that the "Bank Night" plan of defendant in error constituted a lottery. This may be correct. There are authorities which support this conclusion [Featherstone v. Independent Service Station Ass'n (Tex.Civ.App.) 10 S.W.(2d) 124], and upon reason the conclusion appears sound. In the instant case, there were two different classes of possible prize winners, namely, the holders of free...
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