State ex rel. Turner v. Drake

• Citation: 242 N.W.2d 707
• Decision Date: 19 May 1976
• Docket Number: No. 2--57127,2--57127
• Parties: STATE of Iowa ex rel. Richard C. TURNER, Attorney General, and citizen of Polk County, Iowa, Appellant and Cross-Appellee, v. Harold and D. DRAKE and Hubert Herman Heinig, Appellees and Cross-Appellants.
• Court: United States State Supreme Court of Iowa

Page 707

242 N.W.2d 707

STATE of Iowa ex rel. Richard C. TURNER, Attorney General, and citizen of Polk County, Iowa, Appellant and Cross-Appellee, v. Harold and D. DRAKE and Hubert Herman Heinig, Appellees and Cross-Appellants.

No. 2--57127.

Supreme Court of Iowa.

May 19, 1976.

Richard C. Turner, Atty. Gen., and John R. Perkins, Asst. Atty. Gen., for appellant and cross-appellee.

Mark C. Smith, West Des Moines, for Hubert Herman Heinig.

Don F. Neiman, Des Moines, for Harold and D. Drake.

Heard by MOORE, C.J., and MASON, RAWLINGS, LeGRAND and REES, JJ.

LeGRAND, Justice.

This is an action brought upon the relation of Richard C. Turner to enjoin the maintenance of a gambling nuisance. The action is based upon a violation of § 726.6, The Code, 1973, which the petition alleges is a nuisance as defined in § 657.2(6), The Code, 1973. Plaintiff asserts defendants should be enjoined under § 99.1, The Code, 1973.

The trial court dismissed the action. We affirm, although we do so on other grounds.

The applicable statutory provisions are here set out in pertinent part:

§ 726.6 provides:

'Any person who records or registers bets or wagers or sells pools upon the results of any trial or contest of skill, speed, or power of endurance of man or beast, * * * and any person who keeps a place for the purpose of doing any such thing, and any owner, lessee, or occupant of any premises, who knowingly permits the same, or any part thereof, to be used for any such purpose, and anyone who, as custodian or depositary thereof, for hire or reward, receives any money, property, or thing of value staked, wagered, or bet upon any such result, shall be fined not exceeding one thousand dollars, or imprisoned in the county jail not exceeding one year, or both.'

§ 657.2(6) provides:

'The following are nuisances:

'(1) * * *

'(2) * * *

'(3) * * *

'(4) * * *

'(5) * * *

'(6) houses of ill fame, kept for the purpose of prostitution and lewdness, gambling houses, or houses resorted to by persons using controlled substances, as defined in section 204.101, subsection 6, in violation of law, or houses where drunkenness, quarreling, fighting, or breaches of the peace are carried on or permitted to the disturbance of others.

'(7) * * *

'(8) * * *

'(9) * * *'

§ 99.1 provides:

'Whoever shall erect, establish, continue, maintain, use, own, or lease any building, erection, or place used for the purpose of lewdness, assignation, prostitution, or gambling, or pool selling as defined by section 726.6 is guilty of a nuisance, and the building, erection, or place, or the ground itself, in or upon which such lewdness, assignation, prostitution, or gambling, or pool selling as defined by section 726.6 is conducted, permitted, or carried on, continued, or exists, and the furniture, fixtures, musical instruments, and movable property used in conducting or maintaining such nuisance, are also declared a nuisance and shall be enjoined and abated as hereinafter provided.'

This appeal has been submitted on stipulated facts. Defendants Harold and D. Drake are the owners of property at 124--5th Street in West Des Moines. They lease these premises to defendant, Heinig, who operates a tavern at that address. Heinig regularly patronized Ak-Sar-Ben racetrack in Omaha. As an accommodation, he placed bets there for persons who were not able to attend the races. On June 14, 1973, a Polk County deputy sheriff, after having been introduced to Heinig by an unidentified woman, gave him $5 to bet on a designated horse who was to run the next day at the Omaha track. The deputy wrote the number of the horse, the number of the race, and the amount he wanted to bet on a slip of paper which he gave to one of Heinig's employees. The employee in turn gave this data to Heinig. This is said to be recording or registering a bet or wager. It is the only part of § 726.6 defendant is charged with violating.

On June 20, 1973, this same procedure was repeated as to other races. On the last occasion the deputy was accompanied by a fellow officer, who made the same arrangement with Heinig.

Two of the selections were winners. Each time Heinig paid the deputy the exact amount he had collected at the track. No compensation was paid Heinig for placing these bets at Ak-Sar-Ben. No commission was deducted by him from the amount paid on the winning ticket. The parties agree Heinig received nothing for placing and collecting the bets.

Defendants Drake owned the building in question. The unrefuted testimony shows they were unaware Heinig engaged in the practices which plaintiff says subject the property to the injunction now sought.

Heinig asserted generally his conduct did not violate § 726.6, The Code, 1973, and further claimed it came within the 'social gambling' exception which appears as § 726.12 in the 1973 Code.

The trial court dismissed the action, finding Heinig's conduct came within § 726.12 as an exception to the gambling prohibited by § 726.6. The trial court also found defendant's actions would have been in violation of § 726.6 except for that exception.

We do not reach the 'social gambling' question because we hold Heinig did not violate § 726.6 even without resorting to the provisions of § 726.12.

We hold Heinig did not register or record bets or wagers in any event. This case turns upon our construction of § 726.6. Although the present action is not a criminal prosecution, the statute is a criminal one imposing punishment by both fine and imprisonment. It is to be strictly construed. Sutherland Statutory Construction, § 59.08 (4th Ed., Sands, 1974); State v. Kool, 212 N.W.2d 518, 520 (Iowa 1973); State v. Nelson, 178 N.W.2d 434, 437 (Iowa 1970).

The statute contains no definition of 'bet' or 'wager.' We therefore construe these words according to their approved usage. § 4.1(2), The Code; State v. Kool, supra, 212 N.W.2d at 520. For the present purposes we use 'bet' and 'wager' interchangeably. Plaintiff's case can succeed only upon proof Heinig either recorded or registered bets or wagers upon horse races to be ran at Ak-Sar-Ben as those terms are generally understood and applied.

Black's Law Dictionary, Revised 4th Ed., 1968, at page 203, defines 'bet' as: 'An agreement between two or more persons that a sum of money or other valuable thing, to which all jointly contribute, shall become the sole property of one or some of them on the happening in the future of an event at present uncertain, or according as a question disputed between them is settled in one way or the other.'

2 Bouv.Law Dict. (8th Ed. (Rawle's Third Revision), 1914), p. 3414 contains this definition:

'Wager: a bet; a contract by which two or more agree that a certain sum * * * shall be paid * * * to one of them on the happening or nonhappening of an uncertain event; * * * there must be a risk by both parties * * *; a bet is a wager, though a wager is not necessarily a bet.'

Webster's New International Dictionary, 3d Ed. (1966), puts it this way:

'Bet: something that is * * * staked * * * typically between two parties, on * * * any contingent issue * * *'

The rule is thus stated in 38 Am.Jur.2d, Gambling, § 3, pages 108--109 (1968):

'The term 'bet' is defined as the hazard of money upon an incident by which one or both parties stand to win or lose by chance. Other definitions of slightly different wording but similar import may be found. Most of them are based on the premise that both or all parties to the bet shall stand to lose by the chance. According to some modern authorities, however, this is not essential to constitute gambling, but it is enough that one of ...