Gandolfo v. Louisiana State Racing Com'n, 41658

• Decision Date: 13 December 1954
• Docket Number: No. 41658,41658
• Citation: 227 La. 45,78 So.2d 504
• Parties: Joseph C. GANDOLFO et al. v. LOUISIANA STATE RACING COMMISSION et al.
• Court: Louisiana Supreme Court

Page 504

78 So.2d 504

227 La. 45

Joseph C. GANDOLFO et al. v. LOUISIANA STATE RACING COMMISSION et al.

No. 41658.

Supreme Court of Louisiana.

Dec. 13, 1954.

Rehearing Denied Feb. 14, 1955.

James I. McCain, New Orleans, for plaintiff-appellants.

Fishman, Reuter, Rosenson & D'Aquin, Warren M. Simon, Thomas C. Wicker, Jr., Harold R. Ainsworth, New Orleans, for defendants-appellees.

VIOSCA, Justice Ad Hoc.

By resolution dated August 8, 1953, the Louisiana State Racing Commission approved the application for license and granted permission to Magnolia Park, Inc., to conduct a Harness Racing Meeting for sixty-six days in the Parish of Jefferson, beginning Monday, March 15, 1954, and ending May 31, 1954.

On September 30, 1953, twenty-two real estate owners and taxpayers in Jefferson Parish filed this injunction suit in the Civil District Court for the Parish of Orleans against the Louisiana State Racing Commission, officially domiciled in Orleans Parish, and its individual members, and against Magnolia Park, Inc., also domiciled in Orleans Parish. Three of these petitioners were St. Martin's Episcopal Church, St. Martin's Protestant Episcopal School, and Bridgedale Baptist Church, all Louisiana corporations. Thereafter, on October 19, 1953, forty-seven additional home owners or property owners in Jefferson Parish filed a petition of intervention, joining the original plaintiffs.

Plaintiffs and intervenors, hereinafter referred to as plaintiffs, alleged that Sections 148, 153, 156 and 159 of Title 4 of the LSA-Revised Statutes, under which the commission issued the license, are unconstitutional as violating Article 19, Section 8 of the Louisiana Constitutional of 1921, LSA, both because they authorize rather than suppress gambling and because betting on harness races, with the use of pari-mutuel machines, constitutes a lottery. They further alleged that the operation of the proposed track would constitute a nuisance in fact in that their property and homes would be depreciated in value by the proposed illegal operation of the track in the vicinity of their homes, and that the operation of the track at night would interfere with the peace, quiet, enjoyment and value of their homes and property.

Plaintiffs prayed for a mandatory injunction to the Louisiana State Racing Commission, directing it to revoke the license granted to Magnolia Park, Inc.; and further prayed that temporary and permanent injunctions issue against the Louisiana State Racing Commission, and its members, and against Magnolia Park, Inc., prohibiting, respectively, the permitting and conducting of pari-mutuel and handbook wagering in the vicinity of their homes.

The defendants filed exceptions of no right and no cause of action and prematurity, which exceptions were overruled by the district judge, but with reservation of the right to re-urge these exceptions after a hearing of the evidence.

The defendants thereafter filed their answers in which they admitted that Magnolia Park, Inc., proposed to begin operation of its night horse racing plant on March 15, 1954, in Jefferson Parish. They further admitted that pari-mutuel wagering would be conducted at the track in connection with the running of the horses as authorized by the Louisiana State Racing Commission. They contended that Sections 141 to 161 of Title 4 of the LSA-Revised Statutes, which legalize this type of wagering are constitutional and that the operation of the track with pari-mutuel betting could not and would not be a nuisance per se or a nuisance in fact.

At the time of the trial of the rule for preliminary injunction, it was established that Magnolia Park, Inc., had leased for ten years, beginning September 18, 1953, with option to purchase, a certain tract of land adjoining and directly west of Green Acres Subdivision (where a majority of the plaintiffs and intervenors lived or owned property); and it was further established that the racing track, with grandstand, was then in the process of construction at an expenditure in excess of $2,000,000; that public racing was to commence on March 15, 1954, with eight races each night, six nights of the week, from 8 P.M. until midnight; and that the racing area would include parking space for 4,560 automobiles, with a stable area for the accomodation of 600 horses and space for trailers used in the transportation of the horses.

The district judge after hearing this rule for a preliminary injunction, dismissed the application as of nonsuit. Plaintiffs took a devolutive appeal from this judgment. They also applied to this court for writs of certiorari, mandamus and prohibition on the basis that the appeal would not be adequate. This application was denied by this court.

Thereafter, a trial on the merits was had in the district court, and all parties re-offered the same evidence which was taken on the trial of the rule for a preliminary injunction. The district judge rendered judgment in favor of defendants, dismissing the demands of plaintiffs as of nonsuit. An appeal was taken from this judgment and by stipulation the two appeals have been consolidated in this court.

In this court plaintiffs make the following contentions:

1. That pari-mutuel wagering on harness races is gambling in violation of Article 19, Section 8 of the Louisiana Constitution of 1921 and in violation of LSA-R.S. 14:90, and that LSA-R.S. 4:148, 153, 156 and 159 are unconstitutional.

2. That pari-mutuel wagering on harness races constitutes a lottery in violation of Louisiana Constitution, Article 19, Section 8, and in violation of LSA-R.S. 14:90.

3. That, accordingly, the operation of the Harness Racing Meeting by Magnolia Park, Inc., constitutes a nuisance per se.

Plaintiffs have abandoned the contention that the operation of these races will constitute a nuisance in fact. In dismissing that contention in district court, the district judge held that the demand of plaintiffs in this respect was premature in that the track was not then in operation. His ruling was based upon our decision in Frederick v. Brown Funeral Homes, 222 La. 57, 62 So.2d 100, wherein we held that the establishment and operation of a business not prohibited by law cannot be enjoined as a nuisance in fact prior to its operation. Nothing in the decree of the district court or in our decree herein will preclude plaintiffs from bringing proceedings to abate the nuisance should these races, after the track is in operation, be so conducted as to constitute a nuisance in fact.

Article 19, Section 8 of the Louisiana Constitution of 1921 provides:

'Gambling is a vice and the Legislature shall pass laws to suppress it.

'Gambling in futures on agricultural products or articles of necessity, where the intention of the parties is not to make an honest and bona fide delivery, is declared to be against public policy; and the Legislature shall pass laws to suppress it.

'Lotteries and the sale of lottery tickets are prohibited in this State.'

From a mere reading of this Article it is obvious that the first provision, declaring that gambling is a vice and that the Legislature shall pass laws to suppress it, is not self-executory. In the absence of any legislation there is no prohibitory law on the subject. This is likewise true of the second provision of the section, declaring that gambling in futures on agricultural products or acticles of necessity, under certain conditions, is against public policy; and that the Legislature shall pass laws to suppress it.

The third provision of the section, dealing with lotteries and the sale of lottery tickets, is, however, self-executory; and it does constitute a prohibitory law on the subject, although legislation in support of this provision is necessary in order to make lotteries and the sale of Lottery tickets criminal offenses.

The statutes which the Legislature has adopted under its power to pass laws to suppress gambling, and which are now in force, and pertinent to this case, are LSA-R.S. 4:141 to 4:161, LSA-R.S. 14:90, and LSA-Civil Code, Article 2983.

LSA-R.S. 14:90 provides as follows:

'Gambling is the intentional conducting, or directly assisting in the conducting, as a business, of any game, contest, lottery, or contrivance whereby a person risks the loss of anything of value in order to realize a profit.

'Whoever commits the crime of gambling shall be fined not more than five hundred dollars, or imprisoned for not more than one year, or both.'

This statute prohibits gambling as a business but does not prohibit gambling between individuals.

LSA-R.S. 4:141 to 4:161, inclusive, create the Louisiana State Racing Commission, define its powers and duties, authorize it to prescribe rules and regulations under which shall be conducted all horse races upon which there is wagering, give it control generally over the conduct of all race meetings conducted in the State of Louisiana, and provide for license fees, commissions and taxes.

LSA-R.S. 4:148 provides:

'The commission may prescribed rules and regulations under which shall be conducted all horse races upon the results of which there is wagering. The commission shall make rules governing, permitting, and regulating the wagering on horse races under the form of mutuel wagering by patrons, known as the 'pari-mutuel wagering' and the 'bookmaking form of wagering,' both of which methods are legal. Only those persons receiving a license from the commission may conduct these types of wagering, and shall restrict these forms of wagering to a space within the race meeting grounds. All other forms of wagering on the result of horse races are illegal, and all wagering on horse races outside the enclosure where horse races have been licensed by the commission is illegal.' (Italics ours.)

LSA-R.S. 4:159 provides in part:

'No person shall directly or indirectly hold any horse race meeting with mutuel pools or pools making wagering on the results, without having first procured a license. No...