OPINION
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:
WINTER
RACING.
"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.
The
substance of the...