Soc'y of Good Neighbors v. Van Antwerp

• Decision Date: 28 February 1949
• Docket Number: No. 21.,21.
• Citation: Soc'y of Good Neighbors v. Van Antwerp, 324 Mich. 22, 36 N.W.2d 308 (Mich. 1949)
• Parties: SOCIETY OF GOOD NEIGHBORS v. VAN ANTWERP et al.
• Court: Michigan Supreme Court

324 Mich. 22

36 N.W.2d 308

SOCIETY OF GOOD NEIGHBORS

v.VAN ANTWERP et al.

No. 21.

Supreme Court of Michigan.

Feb. 28, 1949.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; Thomas F. Maher, judge.

Action for injunction by Society of Good Neighbors, a Michigan nonprofit corporation, agaisnt Eugene I. Van Antwerp and others From an order dismissing the bill of complaint, the plaintiff appeals.

Order affirmed.

Before the Entire Bench.

Davidow & Davidow, of Detroit, for plaintiff and appellant.

Raymond J. Kelly, Corp. Counsel and Nathaniel Goldstick, Asst. Corp. Counsel, both of Detroit, for defendants and appellees.

BUSHNELL, Justice.

Plaintiff Society of Good Neighbors, a non-profit corporation, has appealed from an order dismissing its bill of complaint, in which it sought injunctive relief, restraining the mayor, commissioner of police, superintendent of police, and deputy superintendent of police of the city of Detroit ‘from in any way interfering with the plaintiff in its conduct of any bingo parties or any of its other activities.’

It is the claim of plaintiff that for some years it has been operating a charitable organization which renders assistance in emergency cases to all persons regardless of rece, color or religion. It has financed itself by voluntary contributions and operated with the aid of voluntary workers, in addition to about 30 individuals on its pay roll. According to plaintiff, in 1944, due to increased costs of living and operating expenses, it undertook to augment its income by conducting bingo parties.

It is stated that several years later an instance arose which brought about a prejudiced attitude on the part of the police department towards plaintiff's operations, which developed into an ‘animus' on the part of defendants, resulting in ‘a campaign of inquisition’ and repeated visits of the police, which plaintiff claims were merely for the purpose of frightening patrons at its bingo games and thereby suppressing its activities. Later, a grand jury investigation was instigated and representations were made by defendants to the revenue officers of the federal government and certain state officers respecting plaintiff's operations. Plaintiff asserts that many religious, charitable, service, patriotic and other non-profit organizations are operating bingo, reffles, and lotteries in the city of Detroit, without being molested by the police, but that plaintiff has been singled out as the sole object of police interference.

After defendants filed their motion to dismiss, plaintiff amended its bill of complaint to include more specific details of the actions of the police, and it alleged that, through its director, it asked that an arrest be made so that the matter could be tested in the criminal courts. It avers that the conduct of its operations is ‘perfectly legal,’ and that the threats of the police will amount to a continuing trespass and cause irreparable damage unless restrained by a court order.

The trial judge accepted the allegations of the bill of complaint as true and stated in a filed opinion that the court believed itself to be without jurisdiction to restrain defendants in that plaintiff's operations constituted ‘a game of lottery, a game of chance. It is gambling.’ The court was also of the opinion that plaintiff had an adequate remedy at law and entered an order dismissing the bill of complaint.

Article 5, § 33, of the Constitution of 1908 provides:

‘The legislature shall not authorize any lottery nor permit the sale of lottery tickets.’

In People v. Welch, 269 Mich. 449, 257 N.W. 859, defendants were charged with managing a lottery and aiding and assisting in disposing of merchandise by way of lottery for money and a game of chance. The trial judge quashed an information filed against the defendants, and on appeal by the people the order of the Superior Court of Grand Rapids was reversed and the cause remanded for further proceedings. It is there said that the operations of Welch and others, in conducting what they termed a ‘beano’ game, was a violation of § 372 of the penal code, Act No. 328, Pub.Acts 1931, 4 Comp.Laws 1948, § 750.372, Stat.Ann. § 28.604.

Bingo is essentially the same as ‘beano,’ ‘keno,’ and ‘lotto,’ described in the Welch case.

Plaintiff does not contend that the statute just cited is unconstitutional or in any way defective, but argues that it is the victim of a discriminatory enforcement of the criminal law and, as such, is entitled to injunctive relief in a court of equity. It relies strongly on Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 1065, 30 L.Ed. 220. In that case an ordinance of the City of San Francisco provided that no one should ‘establish, maintain, or carry on a laundry, within the corporate limits of the city and county of San Francisco, without having first obtained the consent of the board of supervisors, except the...