State ex rel. Olsen v. Crown Cigar Store
| Decision Date | 02 August 1950 |
| Docket Number | No. 8964,8964 |
| Citation | 220 P.2d 1029,124 Mont. 310 |
| Parties | STATE ex rel. OLSEN, Atty. Gen. v. CROWN CIGAR STORE et al. |
| Court | Montana Supreme Court |
Arnold H. Olsen, Atty. Gen., Willis B. Jones, Philip O'Donnell, Asst. Attys. Gen., for appellant.
Mr. Olsen & Mr. O'Donnell argued orally.
W. E. Coyle, Alf C. Kremer, Rex F. Henningsen, all of Butte, for respondents.
Mr. Coyle & Mr. Henningsen argued orally.
Appeal by the state from decree and order entered January 5, 1950, in the district court of Silver Bow county, the Hon. John B. McClernan, district judge, presiding, and cross-appeal by defendants from portions of such decree in an action to enjoin the operation of certain gambling games, lotteries and devices and to abate as a nuisance the building and premises in and on which the gambling and lotteries were permitted, same being decribed as: '* * * the building, structure, and premises * * * shown and designated as the Crown Cigar Store, the Crown Bar, Copper Kings Club, and as 106 and 110 East Park Street * * * The first floor of that certain three-story brick building situated upon that parcel of land situated in Silver Bow County, Montana and described as the West 38 feet of Lot 5 and the East 10 1/2 feet of Lot 6 all in Block 39, Butte Townsite, in the city of Butte, Silver Bow County, State of Montana * * * including the entire first floor of said building and structure and all rooms and compartments thereof, any or all of which may be entered through either of the outside entrances thereof, to-wit: That certain door therein located and opening on said East Park Street, and designated as 110 East Park Street, Butte, Montana, and that certain door therein, located and opening, on said East Park Street and designated as 106 East Park Street, Butte, Montana * * *.'
There is no dispute or conflict as to the facts, same having been agreed to by the parties pursuant to stipulation entered in open court.
The defendant George D. Curtis is the owner of the west 13 1/2 feet of lot 5, and the east 10 1/2 feet of lot 6, all in block 39 of [124 Mont. 312] the Butte townsite in the city of Butte, and the defendant Old National Bank of Spokane is the owner of the 23 1/2 feet immediately to the east thereof.
The two properties combined are the property upon which the Crown Cigar Store and the Copper Kings Club room are located, being the west 38 feet of lot 5 and the east 10 1/2 feet of lot 6, all in block 39, Butte townsite, in the city of Butte.
On the ground floor of the above premises the defendants Joseph M. Lyden and John C. Cox own and conduct a bar, cigar store and lunch counter under the style of The Crown Cigar Store.
In May 1947 Lyden and Cox organized and incorporated the defendant Copper Kings Club, a so-called 'non-profit organization' or social club which has since been managed, operated and conducted by them, Lyden being the president and Cox the treasurer of the club.
The sole and exclusive business of the Copper Kings Club was the conducting, maintaining and operation of slot machines. For such enterprise the club used and occupied a room or compartment in the northwest corner on the first floor of the described building. There was a door, usually kept open, leading from such room or compartment to that portion of the first floor used and occupied by The Crown Cigar Store, bar and lunch counter. The slot machines operated and possessed by the club bore revenue stamps purchased from and issued by the state board of equalization.
In the portion of the building occupied by The Crown Cigar Store a numbers game was run and conducted for profit. The game had grossed the defendants the sum of $253,135. There is no pretense that such game is a 'hickey game' nor that the winners are paid off in 'hickeys' under the provisions of the 'Hickey Law', Ch. 153, Laws of 1937, or those of Chapter 142, Laws of 1945.
The game is called a Chinese lottery by the attorney general, while defendants call it 'The Crown Game' and 'The Crown punchboard game.' The players of the game mark on tickets containing 80 squares numbered 1 to 80. At the close of the game the operators select 20 of those numbers. The player wins if his ticket has marked upon it five or more of the numbers marked by the operators. The players purchase tickets at prices ranging from 15cents to $1 per ticket. On a 25cents ticket the following combinations receive the following awards:
5 numbers pay $.50
6 numbers pay 4.50
7 numbers pay 45.00
8 numbers pay 225.00
9 numbers pay 450.00
10 numbers pay 900.00
The other gambling equipment consisted of lottery tickets, a wooden punchboard, an electric board, and other movable property used in operating the game.
The operators of the game affixed to the stub of each ticket pad purchased or used by the players participating, tax stamps in the amount of 3% of the total price of the tickets sold from the pad.
October 18, 1949, the state of Montana, through its attorney general, filed in the above district court in cause No. 43986 therein, a complaint accompanied by the supporting affidavits of two investigators employed by the attorney general, charging defendants with knowingly and intentionally operating, conducting and permitting in the building and structure and on the premises aforesaid, lotteries and gambling in violation of the laws of the state banning same, seeking to abate the nuisance said to there exist,--to enjoin and restrain the continuance thereof and praying for an order closing the premises and directing disposition of the property used in operating such nuisance.
October 19, 1949, upon reading the complaint and affidavits thereto attached, Judge McClernan issued a restraining order and caused same to be served upon the defendants other than Old National Bank of Spokane, requiring defendants to show cause on October 25, 1949, why a writ of injunction should not issue to abate and prevent the continuance or recurrence of the alleged nuisance.
Upon the stipulated facts the district court found 'The Crown Game' as operated by defendants was gambling and a lottery and on January 9, 1950, rendered judgment declaring the premises a common nuisance; decreed that it be abated for a year; ordered the gambling equipment brought before the court for disposition according to law; ordered defendants to deliver to the sheriff the equipment used in the operation of 'The Crown Game' and ordered the sheriff to take such equipment into his possession, but ordered that the action against the defendant Copper Kings Club be dismissed, holding the operation of its five slot machines to be lawful and declining to enjoin the defendant club from continuing such operation.
Immediately following its entry, the judgment was delivered to the sheriff for execution and within thirty minutes thereafter the sheriff made his return to the effect that no gambling equipment was found on the premises, notwithstanding that at the trial defendants had agreed and stipulated that the described gambling equipment was in their possession and on the premises from October 18, 1949, to January 3, 1950.
On January 9, 1950, following the filing of the sheriff's return the defendants, Old National Bank of Spokane, a corporation, and George D. Curtis filed in the district court their petition 'for delivery of the property to owners and for cancellation of order of abatement,' basing same upon the affidavit of the defendant George D. Curtis and the sheriff's return. The district court, over the objections of the state, granted the petition.
The state's appeal is from the portions of the judgment: (1) Dismissing the action as to the Copper Kings Club; (2) dissolving the temporary injunction; (3) refusing to abate and prevent the nuisance; and (4) from an order made after judgment permitting the defendants, George D. Curtis and Old National Bank of Spokane, to reopen the premises and vacating the abatement as to them.
The defendants' cross-appeal is from the judgment of January 9, 1950, except the portion thereof in favor of the defendant Copper Kings Club.
The operation of the five slot machines and the setting up, running and conducting of the 'Crown Game' is conceded by stipulation of the parties. Such stipulation, inter alia, recites: 'That the Crown game is operated by the defendants Joseph M. Lyden and John C. Cox, their employes, servants and agents and is not operated or conducted by Copper Kings Club, a corporation * * *
'That the Crown game as described in this stipulation is played and operated continuously daily and that four separate games approximately are played every hour in every day during the business hours of the Crown Cigar Store. * * * 'That the defendants unless restrained by the Court, intend to continue to operate said Crown game at said Crown Cigar Store premises in the manner heretofore described * * *
'In particular it is expressly stipulated and agreed that said Crown game was played and operated at the Crown Cigar Store in the manner previously stated on May 26, June 11, September 21, September 22, and September 30th, all in 1949 within the Crown Cigar Store.
'* * * that the five slot machines * * * are owned, operated and possessed by Copper Kings Club, a corporation, within the room approximately 30 feet by 30 feet located at the northwest corner of the ground floor of the building in question here * * * and that ever since the year 1947 said slot machines have been played and operated for money within said club room, and that the defendant Copper Kings Club will operate and will continue to operate said slot machines in the future unless restrained and enjoined by the court.
'* * * that Joseph M. Lyden and John C. Cox, two of the defendants, have been the owners of, in occupation and possession of the Crown Cigar Store business conducted within the premises above described and have conducted and operated the Cigar Store, and...
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