State v. Vaughan

• Decision Date: 10 December 1906
• Citation: 98 S.W. 685,81 Ark. 117
• Parties: STATE v. VAUGHAN
• Court: Arkansas Supreme Court

98 S.W. 685

81 Ark. 117

STATE v. VAUGHAN

Supreme Court of Arkansas

December 10, 1906

Appeal from Pulaski Chancery Court; Jesse C. Hart, Judge; affirmed.

Judgment affirmed.

Robert L. Rogers, Attorney General, Lewis H. Rhoton, Prosecuting Attorney, Bert Brooks, City Attorney of Little Rock, and W E. Atkinson, for appellants.

1. Poolrooms and turf exchange are gaming houses, and are per se common public nuisances. 51 N.J.L. 387; 3 Ark. 428; 79 Ky 361; 39 Fla. 441; 55 Pa.St. 294; 58 Ark. 82; 51 Mich. 203; 51 Cal. 78; 16 Minn. 209; 60 N.H. 73; 2 Ky. L. R. 339; 98 Ky 635; 80 P. 877.

Book-making is a gaming device or gaming table within the meaning of the law. 6 App. Cas. (D. C.), 6; 98 Ky. 576.

2. Courts of equity have undoubted jurisdiction to enjoin public nuisances. 2 Story, Eq. Jur. § 921; 4 Pomeroy's Eq. Jur. § 1349; Wood on Nuisance, (3 Ed.), § 819; Bispham on Eq. § 439; 18 B. M. 800; 23 Ky. L. R. 1744; 25 Id. 411. That the criminal courts may punish those who maintain a public nuisance does not affect the right of equity to interfere by injunction. 21 Am. & Eng. Enc. Law, 703; 52 L. R. A. 279; 143 Ind. 98; 28 Kan. 726; 66 N.H. 39; 158 U.S. 564; 65 Ia. 488; 84 Ala. 115; 46 L. R. A. 533; 18 L. R. A. 646; 116 Cal. 397; 76 P. 513; 99 N.W. 249; 11 Md. 128; 128 N.Y. 341; 37 Mo. 214; 22 Ala. 190; 61 L. R. A. 150; 30 Ga. 506.

3. The authority of the Attorney General to bring the suit is not statutory, but derived from the common law, and is generally recognized. L. R. 21 Ch. Div. 752; 3 McN. & Gor. 453; 25 Ky. L. R. 411; 1 B. M. 215; 6 B. M. 397; 69 N.Y.S. 383; 59 Mass. 336; Eden on Inj. § 259; 19 Pet. 91; 118 Cal. 234; 26 N.Y. 293; 108 Mass. 436.

J. W. & M. House, for appellees.

1. Betting on a horse race, where it is what is called a turf race, is not gambling, nor a violation of the law. 23 Ark. 726; 58 Ark. 79. Selling pools on horse races or betting on same is not an offense under our statute nor at common law. 15 Ark. 71; Ib. 259; 63 Md. 242; 46 Am. Dec. 97; 58 Id. 94; Kirby's Digest, §§ 1807, 1809, 2036, 2040, 3687, 3688, 3689; 18 Ark. 570; 79 Ky. 359; 1 Morris (Ia.), 169; 46 Mo. 375; 31 Mo. 35; 8 Gratt. (Va.), 292; 33 Ala. 433; 63 Md. 242; 4 Har. (Del.), 308.

2. An injunction will not as a rule lie where there is a plain remedy at law, or by criminal prosecution. The mere fact that the law is against gambling, even if it be conceded that the keeping of a poolroom is keeping a gambling house, is no ground for the interposition of a court of equity. 2 Beach on Inj. 1087-9; High on Inj. 23; 37 S.W. 478; 36 S.W. 1106; 2 Wood on Nuisances, §§ 788, 791; 34 L. R. A. 95. Sec, also, 34 L. R. A. 95; 2 John. Ch. 374; 37 S.W. 478; 46 L. R. A. 850; 42 Am. Rep. 182; 45 S.W. 506; 52 L. R. A. 299. When the remedy at law is complete, equity will not grant relief. 7 Ark. 20; 13 Ark. 630; 26 Ark. 649; 27 Ark. 97; 27 Ark. 157; 48 Ark. 331; 14 Ark. 339. See, also, 1 Bishop's Crim. Proc. § 1417; 141 N.Y. 237; 42 Wis. 609; 59 Ga. 790; 102 Ill.App. 449; 58 P. 605; 99 Wis. 213.

3. In this case the remedy at law was complete. The cities of Little Rock and Argenta each had the power, under its charter, to suppress a nuisance. Kirby's Digest, § 5438. If the running of a poolroom was keeping a gambling house or a common nuisance, the defendants were liable to indictment and punishment, and the whole police power of the State could have been called upon to suppress it. Kirby's Digest, §§ 2464, 7769; 124 U.S. 200; 25 Ark. 301.

OPINION

HILL, C. J.

The Attorney General of Arkansas, the Prosecuting Attorney of the Sixth Judicial Circuit, and the Mayor and City Attorney of Little Rock brought a bill in chancery against Vaughan, Furth, Faucette and others, in the name of the State of Arkansas and the City of Little Rock, seeking to enjoin Furth from operating a pool room at a place in the city of Argenta near the Free Bridge which connects Argenta and Little Rock, and that the other defendants be enjoined from permitting or assisting, in the several ways alleged, said Furth in conducting said pool room. The defendants answered, denying many allegations of the bill, and to this answer the State and city demurred, and the case was determined on the demurrer, the court sustaining it, and the State and city rested upon it and appealed. The review here is limited to the admissions and allegations in the answer and the undenied allegations of the complaint, as all other allegations were eliminated by trying the case on the sufficiency of the answer. The material parts of the answer, aside from its denial of the allegations of the complaint, are as follows:

"It is true that the defendant, Bob Furth, operated what is known as a turf exchange or pool room, where money is received, won and lost on horse races, and where tickets for pools on horse races run, or to be run, at various and divers racecourses in the State of Arkansas and throughout the United States, are bought, sold and cashed." "That in point of fact there are not more than fifteen or thirty people who visit said turf exchange daily, and that neither women nor children are permitted in said pool room or turf exchange. And they state that said pool room or turf exchange is conducted as a quiet, orderly business, and that no persons visit the same except those who desire to do so, and that disorderly or dissolute characters are not allowed or permitted to visit there, and are not in the habit of doing so. It is true that he has caused the said turf exchange to be advertised by a short notice in one of the Little Rock papers, and that he has at times operated a carriage from said city of Little Rock to said pool room. That the business only attracts such as desire to purchase tickets or pools on horse races, and that disorderly or lewd women or the lawbreaking class are not in the habit of attending said pool room or turf exchange. And that no one is disturbed by the gathering of the people in or about said premises. They further state that the city of Little Rock has no corporate property whatever that is in any way affected by the alleged public nuisance as described in said complaint. They further state that the State of Arkansas has no property interest in the matters complained of, and that, if the said defendants are violating any law, the criminal courts of the State have ample power and authority to prosecute the defendants for such offenses, and that the charter of the city of Argenta authorizes said city to punish or abate a nuisance carried on as alleged in the complaint."

The first question under inquiry is whether betting on horse-racing is gambling within the meaning of the statutes against gaming.

The general statute, the only one of them under which it could fall, defines the act therein made criminal to be "betting any money or any valuable thing on any game of hazard or skill." Kirby's Digest, § 1740. It contemplates that the game be "played," for the next section provides that it shall not be necessary for the indictment to allege with whom the game was played. Sec. 1741. In construing these statutes in 1861 Chief Justice ENGLISH for this court said: "But we do not think the Legislature intended to embrace horse-racing by the words 'any game of hazard or skill' 'played,' etc., however vicious such sports may be." State v. Rorie, 23 Ark. 726. In 1893 this court had before it betting on a game of baseball, and it was held to be criminal because on a game of skill, and the distinction that horse-racing was not a game but a sport was approved. Mace v. State, 58 Ark. 79, 22 S.W. 1108. Some States sustain this distinction, and hold horse-racing to be a sport and not a game, within the gaming statutes, but the weight of authority is to the contrary. 20 Cyc. 884; 14 Am. & Eng. Enc. Law, p. 682. It will not do to overrule State v. Rorie merely because against the weight of authority; there is good reason to sustain the distinction therein made, and it has been acquiesced in by the State for 45 years, when at any time it could have been changed by legislation. Therefore it must be taken in this case that betting on horse-racing is not a crime of itself.

The quoted parts of the answer admit the maintenance by Furth of a turf exchange or pool room, wherein money is received, won and lost on horse races, where tickets for pools on horse races run or to be run in Arkansas and elsewhere are bought, sold and cashed; that fifteen to thirty persons daily visit the pool room for the purpose of betting on the races or buying, selling or cashing pools on the races; that said business is advertised, and at times a vehicle to bring patrons to it has been furnished.

What is the status of such a house, notwithstanding it is conducted in a quiet and orderly manner without unusual noise or disorderly conduct? At common law there were no statutes against gaming, yet the maintenance of a gaming house was a criminal nuisance, indictable and punishable as such. Mr. Justice SCOTT for this court said: "Independent of any statute, the keeping of a common gaming house is indictable at common law on account of its tendency to bring together disorderly persons, promote immorality and lead to breaches of the peace. Such an establishment is thus a common nuisance." Vanderworker v. State, 13 Ark. 700. Chief Justice WATKINS for this court said:

"At common law, gaming houses were indictable as a public nuisance (Vanderworker v. State, 13 Ark. 700), but unless restrained by express statute ordinary wagers or betting were tolerated as being for amusement or recreation." Norton v. State, 15 Ark. 71.

In Thatcher v. State, 48 Ark. 60, 2 S.W. 343 the court went into the subject of gaming, bawdy and disorderly houses being common-law nuisances, and held that they were such, not from the noise or...