State ex rel. Sorensen v. Ak-Sar-Ben Exposition Company
| Decision Date | 26 September 1929 |
| Docket Number | 27083 |
| Parties | STATE, EX REL. C. A. SORENSEN, ATTORNEY GENERAL, PLAINTIFF, v. AK-SAR-BEN EXPOSITION COMPANY, DEFENDANT |
| Court | Nebraska Supreme Court |
Original suit to enjoin defendant from conducting an unlawful betting scheme Motions to vacate restraining order. Motions overruled and preliminary injunction granted.
Motions to vacate restraining order overruled and preliminary injunction allowed.
Syllabus by the Court.
A wrong arising out of repeated violations of a penal statute and harmfully affecting the rights and interests of people generally throughout the state, when committed by a corporation engaged in the public service, is a public wrong which may be enjoined by the supreme court in an original suit in equity wherein the state is plaintiff.
Under the Constitution of Nebraska (article 3, § 24) the Legislature is without power to authorize a lottery.
A lottery or scheme of chance of any kind or description, by whatever name, style or title, is unlawful.
Gambling or betting in the form and substance of a lottery is unlawful and punishable as a lottery.
The statute creating the state racing commission does not authorize the pari-mutuel system of betting in connection with horse races.
The state racing commission is without power to permit betting or gambling at horse races.
The pari-mutuel system of betting on horse races, when in actual operation, is a game of chance, a lottery, likewise gambling and is unlawful.
Additional Syllabus by Editorial Staff.
The words " prizes" and " stakes," as used in Laws 1921, c. 159, § 3; Comp. St. 1922, § 194, providing that association or corporation, person or persons, or owners of horses engaged in races authorized thereby, or others, may contribute to purses or funds that shall be distributed on basis of result of the races, or prizes or stakes that are to be contested for, were not used in sense in which they are elements of lotteries and gaming, but mean prizes or awards honestly and lawfully won by exhibitors, contestants, and owners of horses at fairs, expositions, and stock shows generally.
Original suit in equity in the Supreme Court by the State, on the relation of C. A. Sorensen, Attorney General, against the AkSar-Ben Exposition Company. Motions to vacate restraining order overruled, and preliminary injunction allowed.
C. A. Sorensen, Attorney General, Irvin A. Stalmaster and E. B. Perry, for plaintiff.
Mullen & Morrissey, Herman Aye and Gaines, McGilton, Van Orsdel & Gaines, for defendant.
Heard before ROSE, DEAN, GOOD, THOMPSON and EBERLY, JJ.
This is a suit in equity brought originally in the supreme court by the state of Nebraska on the relation of the attorney general, plaintiff, for an injunction preventing the Ak-Sar-Ben Exposition Company, defendant, its agents, officers, servants and employees from conducting a game of chance, a lottery and an unlawful betting scheme by means of the pari-mutuel system, or otherwise, in connection with horse racing at the Ak-Sar-Ben race track in Omaha, Douglas county.
The petition, in substance, contains pleas that defendant, among other things, was incorporated to promote and conduct expositions, stock shows, fairs, horse races and other forms of public entertainment, without private gain, the races being under the supervision of the state racing commission; that defendant is advertising and unlawfully operating in Douglas county in connection with horse racing the game of chance and the gambling scheme known as the "pari-mutuel" system; that in so doing defendant has violated its charter and the Constitution and statutes of Nebraska and induced thousands of persons throughout the state to attend defendant's races and risk large amounts of money in betting and gambling, thus maintaining a public nuisance and causing the participants in those offenses to violate the law; that minors are permitted by defendant to engage in the betting and gambling and actually participate therein; that thousands of persons throughout the state who cannot afford it are induced and encouraged by defendant to play the game of chance involved in the pari-mutuel system operated by defendant and thereby lose large sums of money; that participation therein tends to demoralize the winners and to impoverish the losers; that individual prosecutions would involve the state in a multiplicity of suits and would not prevent the lawlessness and nuisance described; that the state is without any adequate remedy at law. The pari-mutuel system operated by defendant is described in the petition as follows:
"That the said pari-mutuel system is an illegal and unlawful betting and gaming scheme, and by the said defendant used for that purpose, and in the use thereof, the said defendant receives money from patrons at its races, who pay the same to the defendant and the defendant receives said money in the purchase of tickets issued through said pari-mutuel machine designating specific horses taking part in such race meets, and the holder of such ticket receives after the conclusion of the race bet upon a sum of money evidenced by such ticket which depends entirely upon the result of such race between the horses entered in said race; that after issuing to the party purchasing such a ticket and registering the same, the defendant after the race, pays out an amount of money for said ticket to the purchaser thereof depending on the result of such race between the horses entered in said meet; that during the race meet now being conducted by the defendant, large amounts of money, the exact sum being at this time unknown to the plaintiff, have been bet, gambled, hazarded and lost as the result of the races between said horses carried on through the system of the pari-mutuel machine; that said pari-mutuel machine is a system of betting, wagering and gambling under which all of the money received by the defendant and bet upon the races as aforesaid is thrown into a common pool and is distributed at the conclusion of each race among the bettors backing the winning or victorious horse; that under said pari-mutuel system bettors purchase tickets at booths upon the premises of the defendant and elsewhere which tickets are registered not only as to the total number sold but also as to the total number sold on the particular race for which such ticket is issued; that under this system the bettors make the odds which vary according to the amount of money in the pool thus created and the number of tickets sold on the winning horse; thus the greater the pool and the smaller the number of tickets sold on the winning horse, the larger are the winnings of the bettors; that all losses or winnings under said system are dependent wholly and solely upon chance--outcome of the horses participating in said races and the number of persons betting on the winning horse."
The petition contains the further plea that the law under which defendant claims the right to conduct the pari-mutuel system of betting and gambling is embodied in the act of 1921 creating the state racing commission and containing the following provisions:
Laws 1921, ch. 159, sec. 3; Comp. St. 1922, sec. 194.
The petition is positively verified. In addition there are two affidavits describing the practical operation of the pari-mutuel system as conducted by defendant and as pleaded by the state. One of the affiants stated in substance that, pursuant to invitation under the system, he purchased for $ 2 from an agent of defendant, on its premises, a ticket representing a race horse and received in return after the race $ 122.50, and that he saw several hundred people, among them young men and young women under 20 years of age, purchasing similar tickets.
On the petition and the additional showing outlined the state applied to the supreme court for a restraining order which was allowed June 10, 1929. Defendant and the state racing commission promptly attacked the restraining order by motions to dissolve it. These motions were argued in open court at great length June 17, 1929. Should they be sustained? This was the question for determination.
The original jurisdiction of the supreme court is invoked by the state under the principle that a wrong arising out of repeated violations of a penal statute and harmfully affecting the rights and interests of the people generally throughout the state, when committed by a corporation engaged in public service, is a public wrong which may be enjoined by the supreme court in an original suit in equity, wherein the state is plaintiff. Const. art. V, sec. 2; State v. Pacific Express Co., 80 Neb. 823, 115 N.W. 619; State v. Adams Express Co., 85 Neb. 25, 122 N.W. 691; State v. Chicago, B. & Q. R. Co., 88 Neb. 669, 130 N.W. 295.
At the hearing on the motions to dissolve the restraining order defendant did not deny the charge that it conducted the pari-mutuel system of betting at its races but on the merits of the controversy boldly advocated the propositions that it is authorized by statute to do so, and that there is no law of Nebraska to the contrary. The solution of the problems submitted requires an interpretation of the statute creating the state racing commission and the laws...
To continue reading
Request your trial
-
Neb. Const. art. V § V-2 Supreme Court; Number of Judges; Quorum; Jurisdiction; Retired Judges, Temporary Duty; Court Divisions; Assignments By Chief Justice
...is "public wrong" enjoinable by Supreme Court in original suit by state as plaintiff. State ex rel. Sorensen v. Ak-Sar-Ben Exposition Co., 118 Neb. 851, 226 N.W. 705 Original jurisdiction includes injunction to enforce intoxicating liquor law. State v. Chicago, B. and Q. R. R. Co., 88 Neb. ......