Nathan H. Schur, Inc. v. City of Santa Monica

Decision Date17 August 1956
Citation300 P.2d 831,47 Cal.2d 11
CourtCalifornia Supreme Court
PartiesNATHAN H. SCHUR, Inc., a California corporation, Plaintiff and Respondent, v. CITY OF SANTA MONICA, a Municipal Corporation, and H. W. Hutchinson, Chief of Police, Defendants and Respondents. Roy C. TROEGER, Sevart Smith, Joseph Silverman, Max Kleiger, Edmond G. Friege, and Nathan Franklin, Plaintiffs and Appellants, v. CITY OF SANTA MONICA, a Municipal Corporation, and H. W. Hutchinson, Chief of Police, Defendants and Respondents. L. A. 23679.

LeSage & Bowman and Thomas W. LeSage, Pasadena, for appellants.

Caryl Warner, Los Angeles, for respondents.

CARTER, Justice.

Nathan H. Schur, a corporation, commenced two actions against the city of Santa Monica and its police chief. In the first it asserted that an ordinance of said city, hereinafter mentioned, was unconstitutional in limiting the licenses that may be issued for conducting games of skill to one for each 12,000 inhabitants. In the second action it asserted that section 4226 of the city code, infra, is invalid because it is in conflict with the anti-gambling laws in the Penal Code; that the licensing of certain games by the city officials is a crime on their part, Pen.Code, § 337; that the city, through its police chief, has issued licenses to Troeger and the other plaintiffs, hereafter referred to as Troeger, in the Troeger action (later mentioned) under its ordinances which are for games which are games of chance in violation of the Penal Code; that the city claims section 4226 and the licenses issued thereunder are valid; that because of the invalidity of the city laws and the licensing thereunder the city is illegally spending money in such licensing and in policing the games. To show its interest Schur alleges that it owns property in the amusement zone in the city which is adapted to conducting games and that it is a city taxpayer. It asks that the city be enjoined from carrying out the questioned laws and licesing thereunder and a declaration of the invalidity of them.

Troeger, and five other plaintiffs, commenced an action (hereafter called the Troeger action) against the city and its clerks and police chief alleging that they are the holders of licenses granted by the city for the conduct of amusement games; that they have submitted applications for the annual renewal of their licenses with the police chief but that he will deny their applications on the ground that their games constitute gambling proscribed by the Penal Code; that the games operated by them are of skill and not a violation of the gambling laws but that a dispute exists between them and the city on the subject. They ask for a declaration of their rights, that it be ordered that the licenses be issued to them and the city and its officers be enjoined from interfering with their businesses.

The two Schur actions and the Troeger action were consolidated for trial but the consolidation was vacated as to the first Schur action because of the result the court intended to and did reach in the second Schur action; that is, that the ordinance was valid but the games licensed and proposed to be licensed were a violation of the law aside from the claim of invalidity made in the first Schur action. Apparently the first Schur action is still pending and undecided but it is not of importance here.

Prior to trial and after motion therefor by Troeger and granted in that action, Trogeger filed a supplemental complaint in which it was alleged that the police chief had denied plaintiffs' applications for a renewal of their licenses; that a due and regular public hearing after due notice given was had by the city council in which evidence was taken and a reporter was present, and the council found that plaintiffs' games were not a violation of the gambling laws of the state and they were entitled to licenses; that notwithstanding such finding the police chief still refused to issue the licenses. It was further alleged that evidence was introduced at the hearing, and Nathan Schur, the principal owner of Nathan Schur, a corporation, appeared at the hearing and testified in opposition to Troeger's applications for licenses. The allegations of the supplemental complaint were admitted at the trial. There is no dispute about the occurrence of the events alleged in the supplemental complaint. Troeger's offer to the court of a transcript of the hearing before the council was refused and his request that the court review those proceedings was denied. Over his objection evidence was received on the question of whether the games were of skill or a violation of the Penal Code anti-gambling laws.

In its findings the court found Schur's allegations in its second action to be true except that the ordinance (city code section 4226) was valid; that the games for which licenses were sought by Troeger were of change and violated the Penal Code; that the expenditure of public funds by the city in licensing the gambling games for printing, preparing and filing applications for licenses and wages for 'administering such games' was illegal; that the city police chief lawfully refused licenses to Troeger and his co-plaintiffs. The judgments declared the rights as found and enjoined the city 'from expending * * * any public funds of the City * * * in the licensing of any said gambling games played or operated in violation of Chapters 9 and 10 of Title 9, California Penal Code; and said defendants * * * are * * * enjoined from expending or disbursing any public funds of the City of Santa Monica, for the printing, preparing, issuance, or filing of applications for permits or licenses for any of said gambling games played or operated in violation of Chapters 9 or 10 of Title 9, California Penal Code'; and that Troeger take nothing.

Troeger appeals from the judgment in each action, the second Schur action and Troeger action. At the trial of the consolidated actions the trial court heard evidence on the question of whether the games for which licenses were sought by Troeger were of skill or gambling. It refused to review the transcript of the hearing and finding of the city council which was set forth in Troeger's supplemental complaint.

Section 4226 of the city code of ordinances provides: 'No person shall keep, conduct or maintain within the City any house, room, apartment or place used in whole or in as a place where any game not mentioned in Section 330 or 330a of the Penal Code of the State of California, is played, conducted, dealt or carried on with cards, dice, balls, billiard balls, pool balls, cues or other device when chance is the predominate or a substantial factor in determining any winner of such game or any portion, part or phase of such game and when for the winning of such game or any portion, part or phase thereof, any person received in any manner, money, checks, chips, credit or any other representative of value or any merchandise or anything of value; nor shall any person keep, conduct or maintain within the City any house, room, apartment, or place used in whole or in part as a place where any game not mentioned in Section 330 or 330a of the Penal Code of the State of California is played, conducted, dealt or carried on with cards, dice, cues or other device when skill is the predominate factor in determining the winner of such game, except such games of skill accommodating not more than 50 players or participants at any one time and for the playing of such game is paid in advance, and where the prize or award to any person for winning any such game or any portion, part or phase thereof consists only of merchandise not exceeding $25.00 in value.' Section 6122 provides that any person required to obtain a license to engage in business 'shall first obtain a permit to conduct such business from the Chief of Police. In order to obtain such a permit, a written application shall be filed with said Chief of Police, which application shall contain a statement of intention as to the location and extent of the premises to be occupied, and in addition such application for a permit to engage in any business licensed pursuant to Section 6207 of this Code shall contain the name of any person financially interested in the business in any manner. The Chief of Police, within a reasonable time after the submission of such application, shall ascertain that the proposed...

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19 cases
  • Collins v. Thurmond
    • United States
    • California Court of Appeals Court of Appeals
    • November 5, 2019
    ...is limited to instances where the underlying conduct is criminal. Although our Supreme Court in Nathan H. Schur, Inc. v. City of Santa Monica (1956) 47 Cal.2d 11, 300 P.2d 831 ( Schur ) was dealing with contentions that the granting of certain gaming licenses violated criminal laws, their d......
  • People ex rel. Gallo v. Acuna
    • United States
    • California Supreme Court
    • January 30, 1997
    ...4 Cal.App.2d 206, 208, 40 P.2d 959; Commonwealth v. McGovern (1903) 116 Ky. 212, 75 S.W. 261, 264; Nathan H. Schur, Inc. v. City of Santa Monica (1956) 47 Cal.2d 11, 300 P.2d 831 (semble ); Armory Park v. Episcopal Community Services (1985) 148 Ariz. 1, 10, 712 P.2d 914, 923 ["We hold, ther......
  • Mitchell v. Superior Court (People)
    • United States
    • California Supreme Court
    • January 2, 1987
    ...as a nuisance, but this court has declined to extend authorization for such injunctions judicially. (See Nathan H. Schur, Inc. v. Santa Monica (1956) 47 Cal.2d 11, 17, 300 P.2d 831.) The statutory authority under which this injunction was issued did not authorize the court to enjoin crimina......
  • Leider v. Lewis
    • United States
    • California Court of Appeals Court of Appeals
    • January 14, 2016
    ...relied on a California Supreme Court case applying Civil Code section 3369 in a taxpayer action, Nathan H. Schur, Inc. v. City of Santa Monica (1956) 47 Cal.2d 11, 300 P.2d 831 (Schur ). The City argued the complaint failed to state a cause of action on any theory because the trial court ......
  • Request a trial to view additional results

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