Garono v. State
Decision Date | 15 June 1988 |
Docket Number | No. 87-732,87-732 |
Citation | 524 N.E.2d 496,37 Ohio St.3d 171 |
Parties | GARONO, d.b.a. Garono Vending Company, Appellee, v. The STATE of Ohio et al., Appellants. |
Court | Ohio Supreme Court |
Syllabus by the Court
1. The General Assembly appropriately determined poker to be a game of chance under R.C. 2915.01(D).
2. In order for possession of a gambling device to be illegal, it must be acquired, possessed, controlled, or operated with the purpose to "[e]stablish, promote, or operate, or knowingly engage in conduct that facilitates any scheme or game of chance conducted for profit." R.C. 2915.02(A)(2) and (5).
The present appeal involves the issuance of a permanent injunction on April 3, 1985 by the Court of Common Pleas of Mahoning County enjoining defendants (state of Ohio; Mahoning County, Ohio; city of Youngstown, Ohio; city of Struthers, Ohio; city of Campbell, Ohio; Austintown Township, Ohio; and Beaver Township, Ohio), their officers, agents, servants, employees, and attorneys, as follows:
Appellants (state of Ohio and city of Youngstown), together with defendants (Mahoning County, city of Struthers, Beaver Township and Austintown Township), appealed to the court of appeals claiming that the injunction interfered with the ability of the police to carry out their duties to enforce the law and that the prohibition against public statements violated appellants' First Amendment rights of free speech. The court of appeals held that because the machines were not illegal or gambling devices under the reasoning of State v. Gavlek (Dec. 27, 1983), Mahoning App. No. 83 C.A. 25, unreported, the police could be restrained from seizing the machines. The city of Struthers was excepted from this injunction, however, since there was no evidence that any of its officers or officials was involved with the seizure of the machines. The court of appeals refused to uphold the second part of the injunction regarding the prohibition of public statements, finding that this constituted a prior restraint and therefore violated appellants' rights of free speech.
The factual record consists solely of a Stipulation of Facts submitted to the common pleas court which reads in pertinent part as follows:
The cause is now before this court pursuant to the allowance of a motion to certify the record.
John A. Connor II, Columbus, for appellee.
Gary L. Van Brocklin, Pros. Atty., and Mary Jane Stephens, Youngstown, for appellant State of Ohio.
Edwin Romero, Director of Law and William J. Higgins, Youngstown, for appellant City of Youngstown.
PETER M. HANDWORK, Judge, Court of Appeals.
Appellants challenge the court of appeals' decision below only insofar as it affirmed the granting of the first part of the injunction. Appellants assert that this portion of the injunction should have also been denied because: (1) it interferes with the ability of the executive branch to enforce the law, (2) it violates appellants' rights of local self-government, and (3) draw poker machines are gambling devices per se.
We will address only appellants' first and third propositions of law inasmuch as the issue of whether the injunction interferes with appellants' right of local self-government was not raised below. It is well-settled in the law that " * * * questions not raised or passed upon by the lower courts will not be ruled upon by the Supreme Court." Mills-Jennings, Inc. v. Dept. of Liquor Control (1982), 70 Ohio St.2d 95, 99, 24 O.O.3d 181, 183, 435 N.E.2d 407, 409.
For the reasons which follow, we affirm the granting of the injunction only insofar as it relates to the further impoundment by the Beaver Township police of the four poker machines owned by appellee, but reverse the granting of the injunction as it relates to the permanent prohibition against enforcement of the law by the defendants herein.
An injunction is an extraordinary remedy in equity where there is no adequate remedy available at law. It is not available as a right but may be granted by a court if it is necessary to prevent a future wrong that the law cannot. Sternberg v. Bd. of Trustees (1974), 37 Ohio St.2d 115, 118, 66 O.O.2d 257, 258-259, 308 N.E.2d 457, 460; State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 153, 40 O.O.2d 141, 149, 228 N.E.2d 631, 642; Perkins v. Quaker City (1956), 165 Ohio St. 120, 125, 59 O.O. 151, 153, 133 N.E.2d 595, 598; and Salem Iron Co. v. Hyland (1906), 74 Ohio St. 160, 167, 77 N.E. 751, 752. The grant or denial of an injunction is solely within the trial court's discretion and, therefore, a reviewing court should not disturb the judgment of the trial court absent a showing of a clear abuse of discretion. Perkins v. Quaker City, supra, 165 Ohio St. at 125, 59 O.O. at 153, 133 N.E.2d at 598.
A court should exercise great caution regarding the granting of an injunction which would interfere with another branch of government and especially with the ability of the executive branch to enforce the law. Country Club Hills Homeowners Assn. v. Jefferson Metro. Housing Auth. (1981), 5 Ohio App.3d 77, 5 OBR 189, 449 N.E.2d 460; Lyons v. Cincinnati (1936), 55 Ohio App. 458, 9 O.O. 49, 9 N.E.2d 988; and Snyder v. Alliance (1931), 41 Ohio App. 48, 179 N.E. 426. An injunction would be proper where the police are unwarranted in going beyond their authority or duty, but an injunction cannot be used to make crime " 'profitable, easy, and uninterrupted.' " (Citation omitted.) Monfrino v. Gutelius (1939), 66 Ohio App. 293, 303, 20 O.O. 99, 103, 33 N.E.2d 1003, 1007. See, also, Snyder v. Alliance, supra, 41 Ohio App. at 51, 179 N.E. at 427. Unless the police seek to enforce an unconstitutional or void law, we will not inhibit their efforts to enforce the law. Troy Amusement Co. v. Attenweiler (1940), 137 Ohio St. 460, 19 O.O. 153, 30 N.E.2d 799; VFW v. Sweeney (C.P. 1952), 64 Ohio Law Abs. 277, 111 N.E.2d 699.
From the facts set forth in the stipulation of facts in the case sub judice and the allegations in appellee's petition, this case appears to set forth circumstances similar to those presented in Troy Amusement Co. v. Attenweiler, supra. In Troy, the plaintiff sought an injunction to prevent the constable and justice of the peace from interfering with the plaintiff's business by searching the premises, arresting the manager, or seizing equipment used in connection with the operation of "bank night" in the company's theater. Bank night was a promotional drawing which consisted of the public signing a registration book, being assigned a number, and reporting to the manager within three minutes if their number was drawn to collect the bank account. Plaintiff alleged that Attenweiler was filing numerous affidavits for arrests and search warrants for the sole purpose of harassing plaintiff in order to injure his business, good will and reputation. Plaintiff sought an injunction because Attenweiler did not have sufficient assets to compensate plaintiff for the substantial losses plaintiff would suffer if the court should determine that the affidavits were wrongfully filed. The court held that the plaintiff was not entitled to an injunction because equity cannot interfere where the criminal courts have jurisdiction to determine whether prosecution was lawful. Since the manager had adequate protection at law by means of his criminal defense and through an action for wrongful prosecution, arrests, or...
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