Reed v. Lehman
| Decision Date | 24 August 1937 |
| Docket Number | No. 474.,474. |
| Citation | 91 F.2d 919 |
| Parties | REED v. LEHMAN, Governor of New York, et al. |
| Court | U.S. Court of Appeals — Second Circuit |
John J. Bennett, Jr., Atty. Gen., for appellant Warner.
Philip Huntington, of Glen Cove, N. Y., for appellant Littleton.
James L. Dowsey, of Mineola, L. I., N. Y., for appellants Skidmore and Hendrickson.
George L. Hubbell, Jr., of New York City, for appellant Vandewater.
Henry Epstein, Sol. Gen., of Albany, N. Y., John F. X. McGohey, Colin McLennan, and John C. Crary, Jr., Asst. Attys. Gen., and Robert W. Duvall, Asst. Co. Atty., of Mineola, L. I., N. Y., for defendants.
Edwards, Levy, Fishel & George, of Mineola, L. I., N. Y. (George M. Levy, of Mineola, L. I., N. Y., of counsel), for appellee.
Before MANTON, CHASE, and MACK, Circuit Judges.
This appeal is from a preliminary injunction order restraining appellants from enforcing, as against appellee, provisions of section 986 of the Penal Law of New York and from interfering with and disturbing the appellee and his employees and patrons in the operation of his business, that of carrying on dog racing meets and from seizing or taking into their possession or custody any of the records or paraphernalia used by the appellee in the operation of his business or otherwise interfering with the patronage of his business.
The amended bill, in addition to alleging diversity of citizenship and that more than $3,000 is involved, alleges that section 1, c. 233, of the Laws of 1934 (New York) amended chapter 440 of the Laws of 1926 by adding a new section (section 17); that this amended section 986 of the Penal Law of New York; that chapter 233 of the Laws of 1934 is in contravention of the Fourteenth Amendment to the Constitution of the United States because the statute "abridges the privileges and immunities of appellee and deprives him of his liberty and property without due process of law and denies the appellant the equal protection of the laws by subjecting him to criminal prosecution for the alleged acceptance of bets, wagers on dog races, while at the same time exempting persons who accept bets and wagers on horse racing from similar prosecution."
The convening of a court pursuant to section 380 of the United States Code (28 U.S.C.A. § 380) was applied for and granted. The court so convened held there was no constitutional question presented for decision and referred the case to the District Judge, who convened the court to pass upon whatever other equitable relief was prayed for. The District Judge, after a further hearing, granted the injunction order.
Appellants also appeal from an order which denied their motion to dismiss the bill. This order is not appealable and that appeal therefore must be and is dismissed. Miller et al. v. Pyrites Co. 71 F.(2d) 804; Central Vermont Transp. Co. v. Durning (C.C.A.) 71 F.(2d) 273; Judicial Code § 129, as amended (28 U.S.C.A. § 227).
The injunction was granted upon the theory that irreparable damages are suffered by the appellee warranting equitable relief. Dog racing meets may be lawfully conducted but arrests were made and are threatened based upon the officials' contention that betting and book-making — gambling — is carried on at the appellee's track under the plan of buying or selling options on dogs raced at the meets. The method of buying and selling options is as follows. Appellee, by lease option agreements, contracts for the exhibition of racing greyhounds with the owners thereof upon a per diem basis. As a condition, the owners agree to execute bills of sales of such greyhounds at prices to be set by the appellee and contain an option agreement obtained prior to each individual performance. These greyhounds are matched according to their experience, speed and ability in ten races nightly, eight greyhounds being entered in each race. The race meets are open to the general public who pay admission. The appellee, having an assignable right to purchase the greyhounds participating therein, offers them for sale to the public on (a) a "first option" which entitles the owner thereof to purchase the greyhound upon his option within 10 minutes after the running of the race at the claiming price previously set thereon; (b) a "second option" offering a similar right to purchase subject to the exercise of the first option and to be exercised during a period of 5 minutes after the expiration of the first option and at a reduction in the claiming price of $25; (c) a "third option" which is subject to the first and second option and which must be exercised during a period of 5 minutes after the expiration of the second option and at a further reduction in price of $25. These options are sold without limit to the patrons of the track. If more than one optionee desires to exercise his option upon the same dog, unless the others surrender their rights thereto, lots are drawn before the racing secretary for the right to exercise the option, the winner thus obtaining the first right.
The eight greyhounds entered in the race are placed in an automatic starting box and a mechanical rabbit is released and circles the race course, followed by the greyhounds which are released after the rabbit has been started. Thus the greyhounds exhibit their racing ability, stamina, and form, and the order of the finish thereof is noted and displayed upon a board placed in front of the grandstand and in view of the public.
We need not say whether or not this is gambling, but we leave that question to the criminal court, where the appellee is to be tried on the indictment found against him...
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