State ex rel. Duensing v. Roby

Decision Date22 June 1895
Docket Number17,639
Citation41 N.E. 145,142 Ind. 168
PartiesState of Indiana, ex rel. Duensing, v. Roby et al
CourtIndiana Supreme Court

Petition for Rehearing Overruled September 27, 1895.

From the Lake Circuit Court.

The judgment is reversed, the cause remanded with instructions to overrule demurrers and for further proceedings not inconsistent with this opinion.

W. A Ketcham, Attorney General, J. Kopelke, T. H. Heard, J. G Ibach, W. H. H. Miller, F. Winter and J. B. Elam, for appellant.

J. W Youche, W. Olds, C. F. Griffin and J. B. Peterson, for appellees.


McCabe, J.

The Governor of this State in his biennial message to the Legislature of the State in January, 1895, called attention to certain facts, and made certain recommendations for the consideration of that body as follows:


"Near the city of Hammond there has been located what is known as the 'Roby Fair Association.' It is not incorporated under the laws of this State, nor, so far as I can ascertain, of any State; and what is the legal nature of the association is sedulously concealed. What its actual nature is, its purposes and character are without any concealment. It is simply an immense gambling concern, with a racing attachment to give it the appearance of respectability, and draws within our borders the lawless and disreputable elements of Chicago, for a purpose that is not permitted, nor could be tolerated within that city's limits. Its every influence is demoralizing, encouraging vice, propagating crime, and thus brings our State into disrepute. Its transactions have been open and notorious, but the authorities of Lake county seem to be either indisposed or powerless to prevent them. I have been earnestly seeking some means, warranted by law, by which this disgrace to our State could be prevented, and although having the able advice, earnest assistance, and active co-operation of Attorney-General Ketcham, have failed to find the way * * *.

"To contend that racing of horses can be humanely or interestingly conducted in this climate during the winter months, is a rank delusion and fraud. It is but a cloak to deceive and afford opportunity to conduct gambling on a gigantic scale and the assembling of disreputable crowds.

* * * *

"I, therefore, in the name of the people, insist that you shall take action upon this subject, and recommend that you make it unlawful for any association within the State to hold such meetings between the first day of November and the first day of April, that no race meetings shall be held within the State, except by associations duly incorporated under the laws of this State."

Pursuant to this information and recommendation, that Legislature passed the following act: (Acts 1895, p. 92.)

"An act regulating horse racing, defining the meaning of certain terms, prohibiting horse racing at certain seasons, prescribing a penalty for a violation of the provisions of this act, prescribing rules of procedure, giving certain civil remedies, authorizing the institution of civil suits, and declaring an emergency.

"Section 1. Be it enacted by the General Assembly of the State of Indiana, that it shall be unlawful for any person, corporation, company or association to cause, permit, or allow any horse, mare, filly, gelding, colt or mule to race on any track or course wholly or partly within this State at any time between the fifteenth day of November and the fifteenth day of April in any year for a purse or a prize in the presence of fifty persons or more, or in cases where advertisements or notices of such race or races are published or given notifying the public that such a race will take place. Any person, corporation, company or association aiding or abetting in such race by taking part in advertising therefor, or by furnishing any animal to participate in such race, or by acting as driver therein, or by allowing or suffering the use of a track, course, or other place owned, managed or controlled by him or it, or by aiding in any way in conducting such race, shall be deemed guilty of a misdemeanor and shall be fined not less than one hundred dollars nor more than five hundred dollars, to which may be added imprisonment in the county jail for a period not exceeding six months.

"Sec. 2. It shall be unlawful for any person, corporation, company or association to hold or advertise for a race meeting oftener than three times in any year, and no race meeting shall be held longer than fifteen days. It shall be unlawful to hold any race meeting oftener than twice in any period of sixty days, and it shall also be unlawful to hold any race meeting until after the full period of thirty days has elapsed after meeting has been held. Any person violating the provisions of this section, or aiding or abetting in the violation thereof shall be fined in any sum not less than one hundred dollars, nor more than five hundred dollars, to which may be added imprisonment in the county jail for a period not exceeding sixty days.

"Sec. 3. The term 'race,' as herein used, shall be taken to mean any and all trials of speed of animals of the horse kind, and any and all matches where such animals are suffered to run, gallop, pace or trot for money or prizes, or upon public exhibition, on any track or course.

"The term 'race meeting,' as used in this act, shall be taken to mean and include all assemblies of persons, or all meetings of persons, who come together, or are notified to come together, for the purpose of witnessing any trial of speed, whether running, galloping, pacing or trotting.

"The terms 'track' or 'course' shall be deemed to mean and include all places prepared, used, kept or maintained for the purpose of conducting races, or of giving public exhibitions of trials of speed or matches between animals of the horse kind, wherein prizes, money or reward is contested for by running, galloping, trotting or pacing.

"Sec. 4. In case of a violation of any of the provisions hereof by any person, whether he was at the time acting with the sanction of the owner, lessee or manager of such track or not, it shall be competent for any citizen of the State to file an information, in the name of the State, on his relation, in the Circuit Court of the county where such track is situate, alleging that any of the provisions hereof, and that the person or persons against whom such information is filed threaten, propose or give out that he or they will do any act hereby prohibited, has been violated, whereupon it shall be the duty of such Court, or the Judge thereof in vacation, to issue a temporary restraining order restraining all persons from in any way violating or assisting in the violation of this act. As soon thereafter as possible the Court or Judge shall direct notice to be given to all defendants, so far as they can be reached by notice, that at a certain time, to be fixed by the Court or Judge, they may appear and show cause, if any they have, why such order shall not continue until the final hearing. Such notice may be served upon any agent, employe or servant of the defendant or defendants, and shall be as effective as if served upon the defendant or defendants personally, or if the defendants are not residents of this State or are unknown or cannot be found, notice may be given by publication as hereinafter provided.

"Sec. 5. All persons who appear to have any interest in such race track property upon the records of the county may be made defendants to such suit, and such persons, as well as all others concerned (the latter of whom need not be mentioned by name) may be notified of the pendency of such proceedings for at least two weeks by publication in some weekly newspaper of the county, of general circulation therein. At the expiration of such time any person having a legal interest in the result of such suit may, upon petition, be admitted as an additional party defendant. Any person having an interest in such property, whether made a party or not, shall be bound by the judgment.

"Sec. 6. Changes of venue may be granted from the county to either party, as in other cases, and the relator shall not be liable for any costs. The suit shall be prosecuted either by the prosecuting attorney or, at the request of the Governor, by the Attorney-General or by an attorney designated by the Governor.

"Sec. 7. An emergency is declared to exist for the immediate taking effect of the act, and it is therefore declared to be in effect from and after its passage."

On May 8, 1895, this suit was begun by the appellant under the provisions of the above statute, by filing a complaint or information, in a single paragraph, against the appellees, in the Lake Circuit Court, in the name of the State, on the relation of Julius Duensing, a citizen of the State of Indiana, which was duly verified. A temporary injunction was granted until the final hearing.

On May 15, 1895, on the motion of appellee Roby, the temporary injunction was dissolved.

On May 24, 1895, being the 29th judicial day of the April term of said circuit court, the appellant filed a verified amended information in two paragraphs. And afterwards, at the same term, filed a supplemental information on leave of court, which was also duly verified.

Afterwards the defendants, Edward Roby, Edward A. Shedd, Charles B. Shedd, The Roby Fair Association, The Roby Breeders' Association, John Condon, Rod Wells and John Kelsey, appeared and separately demurred to the information, and to each paragraph thereof, and to the supplemental information for want of sufficient facts, which demurrer the court sustained, and the plaintiff refusing to further plead, the appellees took judgment upon the demurrer that the plaintiff take nothing by this suit.

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