State ex rel. Cowie v. La Crosse Theaters Co.

• Decision Date: 21 June 1939
• Citation: 232 Wis. 153,286 N.W. 707
• Parties: STATE ex rel. COWIE v. LA CROSSE THEATERS CO.
• Court: Wisconsin Supreme Court

232 Wis. 153

286 N.W. 707

STATE ex rel. COWIE

v.LA CROSSE THEATERS CO.

Supreme Court of Wisconsin.

June 21, 1939.

Appeal from an order of the Circuit Court for La Crosse County; A. C. Hoppmann, Judge.

Action by the State, on the relation of Robert S. Cowie, against La Crosse Theaters Company, a domestic corporation, to abate as a nuisance the practice of holding “bank nights”. From an order overruling a demurrer to the complaint the defendant appeals and the relator filed a motion in the Supreme Court for an injunction restraining the practice pendente lite. [By Editorial Staff.]

Order affirmed and motion of relator for restraining order denied.

The action is by the State, on the relation of Robert S. Cowie, against La Crosse Theaters Company, to abate as a nuisance the practice of holding “Bank Nights” on the ground that the practice is a lottery. From an order overruling a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action the defendant appeals. The State asks for an injunction from this court restraining the practice pendente lite.

The general scheme of the Bank Nights conducted by the defendant as it appears from the complaint is that a person whether he buys a ticket for admission to the theater or not may register by writing his name on a card in the lobby of the theater and handing it to an attendant in the defendant's employ. This card bears a serial number and is filed. A card bearing the same serial number is placed in a receptacle from which a number is drawn on the stage of the theater at a designated hour on the designated Bank Night. The number drawn is referred to the card file and the name of the person who wrote his name on the card is ascertained and called from the stage and from the theater entrance. If the person called appears on the stage and claims the prize money within three minutes he is awarded a prize. If he fails to appear within that time the prize money is added to the prize to be awarded on the next Bank Night. If the person called is not in the theater, he is permitted to enter without charge to claim his prize. The amount of the prize is advertised and is carried forward to successive Bank Nights until a registrant appears on the stage to claim it within the three minute limit. Absentee registration is also permitted. A person purchasing a ticket may receive an absentee card. If the person is not present when his name is called he is allowed seventy-two hours in which to appear and claim the prize. Proxy absentee registration is also permitted. Under this system a person may purchase as many tickets as he wishes and register a person for each ticket by writing the name of a different person on each card and affixing his own initials. Each such registrant is given a number and if his name is called and he is not present he is also allowed seventy-two hours in which to claim the prize.

It is alleged that in practical operation the vast majority of registrants in fact buy tickets and pay for the opportunity to participate in the drawing, and that these in effect pay for the opportunity of those to participate who do not buy tickets; that the operation of the scheme “tremendously increases” the patronage of the theater; that many tickets are sold to persons who do not see or desire to see the show, but buy solely for the chance to participate in the drawing; that the giving of numbers to persons who do not buy tickets is only a subterfuge devised to give a semblance of legality in order to evade the law; that many thousand dollars have been paid out by the defendant in prizes; that large sums have been hazarded and gambled and lost by the public, including minors, for the chance of drawing the prizes offered by the company; that operation of the scheme tends to demoralize winners and impoverish losers, and if permitted to continue will result in irreparable losses to individuals in legitimate business and injury to the habits and morals of the people of LaCrosse and the surrounding country; that the practice is a wilful violation of the constitution and statutes of the State and affects thousands of citizens; that its continuance will involve the State in a multitude of suits without stopping the practice and the State is without adequate remedy at law. The prayer is that the defendant be enjoined from carrying on the practice and the practice be abated as a public nuisance; and the respondent moves this court to issue its order enjoining the practice pending final decision of the case in the circuit court.Andrew Lees and Lawrence J. Brody, both of La Crosse, and Samuel P. Halpern, of Minneapolis, Minn., for appellant.

Hale & Skemp, of La Crosse, for respondent.

FOWLER, Justice.

The case is an appeal from an order overruling a demurrer to the complaint for insufficiency of facts stated. The action is brought by a private person upon leave of court first granted pursuant to sec. 280.02, Stats. The prayer is for an injunction abating as a nuisance the continuance of Bank Nights by a theatre company in three of its theaters in La Crosse. The claim that the continuance constitutes a public nuisance is grounded on the theory that the practice involved in Bank Nights constitutes the operation of a lottery, and that a lottery is a public nuisance and may be abated as such.

The defendant raises three fundamental questions: (1) A private person cannot bring an action to abate a public nuisance unless he sustains some special injury not sustained by the general public; (2) the practice of having bank nights does not constitute a lottery; (3) if the practice constitutes a lottery, it constitutes a violation of the criminal law, and equity will not enjoin commission of crimes but will leave enforcement of criminal statutes to the remedies afforded by the criminal law.

[1][2] (1) That sec. 280.02, Stats., authorizes the prosecution of the action seems clear not only from the terms of the section itself but from its history. There are two statutory provisions covering abatement of public nuisances by private persons. Sec. 280.01 provides: “Jurisdiction over nuisances. Any person may maintain an action to recover damages for and to abate a private nuisance or a public nuisance from which he suffers injury peculiar to himself, so far as necessary to protect his rights and to obtain an injunction to prevent the same.”

The defendant claims that under this statute a person must suffer some injury peculiar to himself in order to bring the action to abate a public nuisance. We assume that this would be true but for sec. 280.02, Stats., which reads: “Injunction against public nuisance, time extension. An action to enjoin a public nuisance may be commenced and prosecuted in the name of the state, either by the attorney-general upon his own information, or upon the relation of a private individual having first obtained leave therefor from the court. The same rule as to liability for costs shall govern as in other actions brought by the state. No stay of any order or judgment enjoining or abating, in any action under this section, may be had unless the appeal be taken within five days after notice of entry of such judgment or order or service of the injunction. Upon appeal and stay, the return to the supreme court shall be made immediately.”

The action is concededly brought under the latter section. The complaint shows that leave of court was granted to the relator to bring the action in the name of the state. The former section applies to actions brought by a private person in his own name and right. The latter applies to actions by the state brought on relation of a private person. A priori the action is properly brought. The defendant's contention is based upon the holding in Tiede v. Schneidt, 99 Wis. 201, 213, 214, 74 N.W. 798, decided in 1898, wherein it was held that a private person could not bring an action to abate a public nuisance in absence of special or peculiar injury sustained by him through maintenance of it. Sec. 280.02, Stats., was not then in existence, nor was there then any statute purporting to create any right of a private person to institute an action for abatement of a public nuisance in absence of special damage sustained by him. At that time only the attorney general could move solely in the public right. But sec. 280.02 was enacted in 1905. It is manifest that its enactment authorized a private person to institute an action by the state in the public interest upon leave of court first granted.

[3] The defendant contends that courts of equity have no power to enjoin the violation of criminal statutes, in absence of statutory authority therefor. If so, the instant statute expressly gives the court the power here invoked, if the thing complained of constitutes a public nuisance. Confessedly if the thing complained of does not constitute such nuisance the court may not exercise the power invoked upon request and complaint of a private citizen, and no cause of action is stated.

[4][5] (2) As to whether the operation of the scheme constitutes a lottery. Many cases involving the scheme have been before the courts recently. In all of them it is held, and counsel agree, that a lottery involves three elements. There must be a prize, chance and a consideration. Two of these elements manifestly exist in the instant case-a prize and a chance. The defendant insists that the element of consideration is absent; the state insists that it is present because of the increased number of ticket sales for admission on bank nights; and that while the individual drawing the winning number may not buy any ticket, and thus pay no consideration for his chance for the prize, yet the theatre receives a consideration for allowing him his chance in the increased number of tickets sold to others for admission on the night of the drawing. It is of course manifest that the theatre receives from its sales of tickets enough to...