Sportatorium, Inc. v. State

• Decision Date: 20 March 1937
• Docket Number: No. 12469.,12469.
• Parties: SPORTATORIUM, Inc., et al. v. STATE.
• Court: Texas Court of Appeals

104 S.W.2d 912

SPORTATORIUM, Inc., et al. v. STATE.

No. 12469.

Court of Civil Appeals of Texas. Dallas.

March 20, 1937.

Rehearing Denied April 17, 1937.

Appeal from District Court, Dallas County; Claude M. McCallum, Judge.

Action to enjoin an alleged nuisance by the State of Texas against Sportatorium, Inc., and others. From an order granting a temporary injunction, defendants appeal.

Affirmed.

J. E. Newberry, Robert L. Hurt, and M. R. Irion, all of Dallas, for appellants.

Andrew Patton, Guy L. Mann, and E. G. Moseley, all of Dallas, for the State.

LOONEY, Justice.

The State of Texas, through Hon. Andrew Patton, District Attorney for Dallas county, brought this action against the Sportatorium, Inc., W. T. Cox, Max Grossman, and Red Norton (and two others, later dismissed from the suit), under the provisions of article 614b, Vernon's Ann. P.C. (an Act of the 43d Legislature, 1934, Second Called Session, p. 131, c. 62), also under the provisions of article 4664, R.C.S., alleging that defendants were maintaining a nuisance, as defined in said articles of the statute, praying that on final hearing the nuisance be abated and enjoined and, in the meantime, that defendants be temporarily enjoined from maintaining same. Appellants denied that they were guilty of maintaining a nuisance, on the contrary, were conducting merely a floor show, not in violation of any law. On hearing, the court granted the temporary writ, from which this appeal was prosecuted.

The applicable sections of article 614b are: Section 1, which reads as follows: "It shall hereafter be unlawful for any person to conduct in public competition for prizes, awards or admission fees, any personal, physical or mental endurance contest that continues longer than twenty-four (24) hours"; section 2, "It shall hereafter be unlawful for any person to conduct, within any period of one hundred sixty-eight (168) hours, in public competition for prizes, awards, or admission fees, more than one (1) such personal, physical or mental endurance contest at the same place or location, and in which any of the same contestants engage"; also, section 7, reading: "Any house, structure, building, place or open air space that is being used for the purposes in violation of the provisions of this Act is hereby declared to be a common nuisance. Any person who knowingly maintains or assists in the maintaining of such a place is guilty of maintaining a nuisance." Also section 8, among others, makes it the duty of the district attorney, on reliable information that such nuisance exists, to file suit in the name of the State against whoever is maintaining the same, for its abatement and to enjoin its future maintenance.

While appellants in their brief have not questioned the constitutional validity of the statute in question, it was suggested at the oral argument that it was of doubtful validity. We think the act is valid and that in its enactment the Legislature was clearly within the proper exercise of its police power for the protection of the health and morals of the people. City of Birmingham v. Leo A. Seltzer, Inc., 229 Ala. 675, 159 So. 203; Pughe v. Lyle (D. C.) 10 F.Supp. 245; Weaver v. Stone (D. C.) 11 F.Supp. 559.

The facts show that appellants were engaged or interested in an attraction designated on their admission tickets as the "Battle of the Champions," "Derby Show," "The 1937 Version of the Walkathon," conducted in a building known as the "Sportatorium," located near the intersection of Industrial boulevard and Cadiz street, near the limits of the city of Dallas. Four deputy sheriffs of Dallas county witnessed these performances (relieving each other at the vigil) from Friday, February 19, 1937, at 1:56 p. m. to 11 p. m. Saturday, February 20th; also by Harold McCracken, assistant district attorney, who attended same from 7:30 p. m., November 18, 1937, to about 11 p. m. same day, and again on the night of February 19th, and also on Saturday night, February 20th, from 11:30 to 1:45 a. m. February 21st. These witnesses observed the crowds, the different physical acts and performances of the participants, and heard the announcements made by the manager of the performances and the advertisements broadcasted over radio from the building. The entertainments begun Thursday, February 18, 1937, at 9 p. m. and ended Monday, February 22d. At first, about 34 couples (a man and a woman) participated in the performances, the participants being persons who formerly had training for this character of entertainment. During the first night, 5 participants were eliminated; the second night 8 more were eliminated, and at the close only 20 couples remained, the others having been eliminated under some order or rule of the management. The same persons participated throughout the performances, until eliminated — that is, the 20 couples remaining at the end were among those at the beginning. Their physical activities were dancing or walking around on the platform built in the center of the arena, and were required to be continually in motion for 45 minutes of each hour during 22 hours of each day, 15 minutes of each hour and two hours — from 5 to 7 — each morning were allowed for rest, sleep, recreation, etc. As touching the character of the performances, Mr. Grossman, one of the defendants, testified that at 1:30 p. m. Saturday (February 20th) their Mr. Hall announced over radio, as follows: "Again we greet you from the Sportatorium here at Cadiz and Industrial Boulevard, in the Derby Show of 1937. Now, the markers on the score board tells us that forty training periods have elapsed, and that there have been more disqualifications last night. We had thirty-one teams and now six have been eliminated in the first 24 hours, and now we understand that there have been eight disqualifications during the night, of boys and girls who have violated the rules and regulations of the Derby Show, and have been eliminated, and before we go on I want to tell you that the Derby Show has hit Dallas, and thousands of guests have been over here, and have congratulated us on the fine manner in which the Derby Show has been presented, and the very nice bunch of girls that we have, and the dancers and singers out there to make the complete twenty-three hours of entertainment by the Derby Floor Show, and we are under way for the greatest night tonight of the entire forty-six training periods, and now we are going to have more fun with our Saturday Night Frolic, and our program this afternoon is particularly complete, and the price of admission is one dime, and about six o'clock they go off. There were many disqualifications during the night; it started at 11:55 last evening and they (mentioning names of persons disqualified) were eliminated for violation of the rules and regulations. At 10:30 No. 35, a brother and sister team, were eliminated, and it happened again at 11:45 this morning, and the young lady of team No. 37 was eliminated, and again this morning at 4:30, couple No. 20 were disqualified. So, that leaves at this time twenty-five teams and four boy solos out there, and the going is getting to be a little bit rough. There were many dance numbers presented, and each evening of the Derby Show we are going to allow the boys and girls to get out on the floor and dance, and at 11:55 tonight we will have another dance just for you, for the first European Midnight Frolic, and we have arranged for horns and hats and noise-makers and there will be a frolic, and we will have our master of ceremonies and our orchestra, and we have made plans to stay out all night tonight. Now, we are going to present some entertainment for you by Miss Kate Gary, the partner of Jackie Parr. Last evening, there were eight disqualifications, and there are now twenty-four defending teams in the battle of the Marathon Champions and this afternoon there will be just as much fun, with someone falling to the floor and being eliminated for violation of the rules; we have a man watching them to see that their two knees do not touch the floor. We don't believe in allowing boys and girls to crawl around on the floor and allowed to carry on. We do not believe that a boy or girl should be allowed to stay out there any longer than they can stand on their feet. In other words, if they fall down once that is enough to disqualify them. So, it is more or less a case of staying awake and keeping in good touch with your partners, and it is like a three-ringed circus. There are twenty-five teams doing different steps on the same dance number, and there are thousands of fans who have been to the Derby Show this season who say they have never seen such a great field of entertainers. The floor judge has called for a dance number, and that means drop everything but your partner, and on with the dance. The price of admission in the day is fifteen cents, and after 5:00 o'clock twenty-five cents." And again, at 4:15 p. m. the following announcement was made over radio: "Good afternoon, ladies and gentlemen. We are speaking from the Sportatorium here at Dallas, for the Derby Show of 1937, and all the boys and girls have just returned to the floor after having completed one of their fifteen minute rest periods. And tonight is the great night. Thursday night there were thirty-two teams started off, and the first night there were five of them eliminated. Last night there were eight more eliminated, and we now find ourselves with twenty-five couples and four boy solos. The boys and girls are arranged on each side, and our preparations are under way for the greatest night of all tonight, beginning about sunset and winding up tomorrow about sunrise. The floor judge is now ordering the first dance number. Ladies and gentlemen, everyone came back very happy, and I will tell you that twenty-five teams and four solos did come back to the floor and our guests found the greatest field of entertainers they have ever seen before. Most of the boys and...