State ex rel. Reading v. W.U. Tel. Co.

• Decision Date: 10 March 1953
• Citation: 336 Mich. 84,57 N.W.2d 537
• Parties: STATE ex rel. READING v. WESTERN UNION TEL. CO. Motion 439.
• Court: Michigan Supreme Court

Page 537

57 N.W.2d 537

336 Mich. 84

STATE ex rel. READING v. WESTERN UNION TEL. CO.

Motion 439.

Supreme Court of Michigan.

March 10, 1953.

Burke, Burke & Smith, Ann Arbor, John H. Waters, New York City, for defendant and appellant.

Frank G. Millard, Atty. Gen., Edmund E. Shepherd, Solicitor Gen., Lansing, Douglas K. Reading, Pros. Atty., for Washtenaw County, Edmond F. DeVine, Chief Asst. Pros. Atty. for Washtenaw County, Ann Arbor, for appellee and plaintiff.

Before the Entire Bench.

DETHMERS, Chief Justice.

This matter was assigned to the late Chief Justice NORTH, who, due to ensuing illness, was unable to complete an opinion. It is an appeal by defendant, on leave granted, from an order of the circuit court granting plaintiff's motion for discovery and for a temporary injunction restraining defendant from continuing the course of conduct, hereinafter considered, charged against it in plaintiff's bill of complaint and denying defendant's motion to dismiss in part said bill filed in 1950 under the provisions of C.L.1948, § 692.251 et seq., Stat.Ann. and Stat.Ann.1945 Cum. Supp. § 18.901 et seq., later amendment, P.A.1951, No. 80, not applicable, to enjoin and abate an alleged nuisance.

Plaintiff's bill of complaint alleges, in substance, inter alia, that defendant is engaged in the business of receiving, transmitting and sending by wire or telegraph, dispactches, messages and money, for compensation, and that it maintains two specified offices for the purpose in the county in question; that it has, in said offices, knowingly acceted bets, or money bet on horse races, for transmission to addresses outside the state to be placed there as bets on horse races, and transmitted the winnings therefrom sent by persons at such out-of-state addresses to local bettors in said county, knowing that it was thereby aiding unlawful gambling transactions; and that it has knowingly permitted persons to be in said offices for those purposes. Pertinent portions of section 1 of the cited statute, under which plaintiff's bill recites that it was brought, read as follows:

'Any building, vehicle or place used for the purpose of * * * gambling * * * is hereby declared a nuisance * * * and all such nuisances shall be enjoined and abated as hereinafter provided.'

Section 12 of the act provides that, if the existence of a nuisance be established in the manner provided in the act, an order of abatement shall be entered, which shall provide for removal from the building and sale of its contents and padlocking the place for one year.

Do such averments of the bill as are summarized above serve to allege the existence of a nuisance on the premises within the meaning of the statute?

'A bet, like an ordinary contract, involves a concurrence of wills. There must be an offer and an acceptance thereof in accordance with its terms * * *.' McQuesten v. Steinmetz, 73 N.H. 9, 58 A. 876, 877.

'If, therefore, an offer to bet is telegraphed by a person in this city to another in New York, and the latter accepts by telegraph, the betting is done, not in Richmond, but in New York, because the offer, being accepted there, takes effect ther.' Lescallett v. Commonwealth, 89 Va. 878, 17 S.E. 546, 548.

In Klock v. Brown, 172 Mich. 379, 137 N.W. 636, it was held that a betting contract did not result from a principal's placing in the hands of a faithless agent money 'with instructions to make a bet of the same', when the agent appropriated it, instead, to his own use. The Klock Case announced a rule in Michigan in line with that of the quoted New Hampshire and Virginia cases to the effect that a bet is made at the time and place where the offer of it is accepted. Under the noted allegations of plaintiff's bill of complaint such acceptance occurred, if at all, out of the state and in no sense in the said two offices of defendant located within the county in question in this state. Those offices were not, therefore, buildings or places 'used for the purpose of * * * gambling * * *' as defined in the statute. Accordingly, the averments of the bill of complaint so far considered, taken as true, fail to establish a case of nuisance under the statute so as to entitle plaintiff to the injunctive relief therein provided. We are cited to no authority for the view, nor do we centertain it, that they make out a case of nuisance, independent of the statute, at common law, enjoinable in a court of equity.

Other allegations in the bill of complaint, although perhaps susceptible of the narrow interpretation that they charge gambling on the said premises unrelated to the above described transactions, nevertheless, fairly construed, as we think, and read in the light of all the averments of the bill, have reference only thereto. That is to say, they reiterate, in vague and indefinite generalities, the definite allegations concerning the transmission of messages and money to out-of-state points for placing there as bets and the transmission of the winnings therefrom to the bettors in the local offices in this state. If it were plaintiff's contention that the said allegations do not refer to transactions of that character but to other matters altogether, they suffer from the infirmity of amounting to no more than conclusions and generalities unsupported by any statement of the facts or the nature of the transactions upon which they are based and, in that event, defendant would be entitled to the granting of its motion that such allegations be stricken or the bill of complaint dismissed in part to eliminate them, inasmuch as plaintiff made no offer to amend to supply the defect.

Allegations in the bill of complaint that defendant aided gambling by the above described practices or that it entered into gambling conspiracies relate to subjects foreign to the statute in question and, if proved, fail to establish a nuisance under it or at common law warranting exercise of the injunctive power of the court. Nor is plaintiff aided by such allegations if, perchance, they effectually charge the commission of crimes by defendant inasmuch as equity will not, independent of the element of nuisance or interference with the property or pecuniary rights of another, enjoin the commission of a crime. United-Detroit Theaters Corp. v. Colonial Theatrical Enterprise, Inc., 280 Mich. 425, 237 N.W. 756. The temporary injunction should have been denied.

Mr. Justice REID, in writing that the two telegraph offices here involved were 'used for the purpose of' gambling, cites People ex rel. Wayne Prosecuting Attorney v. Tate, 306 Mich. 667, 11 N.W.2d 282, People ex rel. Wayne Prosecuting Attorney v. Sill, 310 Mich. 570, 17 N.W.2d 756 and People ex rel. Wayne Prosecuting Attorney v. Bitonti, 306 Mich. 115, 10 N.W.2d 329. In each of those cases an automobile, used, as an 'essential tool' and vital link in a gaming operation, to transport mutuel betting tickets, was held to be a nuisance, subject to seizure and sale. This was corollary to the provisions of C.L. 1948, § 750.306, Stat.Ann. § 28.538, declaring the gambling paraphernalia contained in the vehicles to be a common nuisance and their possession a misdemeanor. The distinction is clear. In the instant case the allegations of the bill fail to make out not only a case of gambling in defendant's offices but also of possessing anything there which may not lawfully be possessed. Assume, however, that defendant, as a public carrier, instead of wiring money and messages, as here, engaged in transporting, in interstate commerce, between points inside and outside of Michigan, gambling devices which may not lawfully be possessed in this state. Would its actions in that respect come within the purview of the nuisance statute here involved? In Grand Trunk W. R. Co. v. City of Lansing, 291 Mich. 589, 289 N.W. 265, we held in effect that certain gaming devices, namely, slot machines, the keeping or maintaining of which, as such, constituted a misdemeanor under C.L.1948, § 750.303, Stat.Ann. § 28,535, were not subject to statutory seizure when in possession of a railway company for transportation, in interstate commerce, from a point outside Michigan and delivery to a consignee in Michigan. Utterly incompatible with that holding is the idea that the railway company might, under the facts in that case, have been restrained from possessing, transporting or delivering the slot machines. At greater variance therewith is the suggestion that the transportation, by defendant public carrier in interstate commerce, of money, which it is still lawful to possess in Michigan, from this state to points outside the state, for placing there as bets, may be restrained by our courts or defendant's places of business used in connection therewith declared nuisances, subject to abatement.

What of the order for discovery? In People, ex rel. Moll v. Danziger 238 Mich. 39, 213 N.W. 448, 449, 52 A.L.R. 136, after discussing the rights protected by the provision of Michigan Constitution of 1908, art. 2, § 16, that 'No person shall be compelled in any criminal case to be a witness against himself' this court quoted with approval from 3 Story's Equity Jurisprudence (14th ed.), § 1942, the following:

'In the next place, courts of equity will not entertain a bill for a discovery to aid the promotion or defence of any suit which is not purely of a civil nature. Thus, for example, they will not compel a discovery in aid of a criminal prosecution, or of a penal action, or of a suit in its nature partaking of such a character, or in a case involving moral turpitude; for it is against the genius of the common law to compel a party to accuse himself, and it is against the general principles of equity to aid in the enforcement of penalties or forfeitures.'

We then went on to say:

'The cases are quite uniform in holding that, where the bill is filed solely for discovery and the facts upon which discovery is sought are such as would tend to criminate defendant, the bill...