State v. Wokan Amusement Co.

Decision Date07 March 1933
Docket Number20427.
PartiesSTATE ex rel. CALLIHAN, County Attorney, v. WOKAN AMUSEMENT CO. et al.
CourtOklahoma Supreme Court

Syllabus by the Court.

1. A "lottery" is any scheme for the disposal or distribution of money or property by chance, among persons who paid or promised or agreed to pay, any valuable consideration for the chance of obtaining such property.

2. Operating premises for the purpose of conducting dog races where persons congregate for the purpose of making bets and wagers on the races run and where such bets or wagers are openly and publicly made in the presence of the persons assembled, under our statutes, is a public nuisance.

3. Where certain parties are engaged in the operation of a place where dog races are run, and the method of operation consists of a charge of 75 cents for general admission, and tickets to reserved seats and box seats are sold, which have certain numbers and letters printed thereon which relate to the numbers assigned to the dogs in that particular race; it being further shown that all of the funds received from said sales of seats for that particular race, less 10 per cent for expenses, are divided among those persons holding tickets representing the dogs that finish first, second, and third respectively- held, that said scheme so operated is a lottery and a public nuisance and should be abated by injunction.

4. The sale of a share of stock for the sum of 5 cents with each reserved seat or box, which guarantees a dividend of 20 per cent. regardless of the outcome of the race, is not sufficient to legalize the entire transaction as the stock sale is merely a subterfuge to conceal the real transaction inasmuch as the so-called dividends are dependent for distribution upon chance.

Appeal from District Court, Oklahoma County; T. G. Chambers, Judge.

Action by the State of Oklahoma, on the relation of George M Callihan, County Attorney of Oklahoma County, against the Wokan Amusement Company and others. From a judgment in favor of the defendants, the plaintiff appeals.

Judgment reversed, with directions.

George M. Callihan, Co. Atty., and I. L. Harris, both of Oklahoma City, for plaintiff in error.

O. A Cargill, Gomer Smith, Twyford & Smith, and G. Lee Gibbs, all of Oklahoma City, for defendants in error.

Byron Kirkpatrick, Co. Atty., W. L. Coffey, A. F. Moss, and H. R. Young, all of Tulsa, amici curiæ.

OSBORN Justice.

This case was commenced in the district court of Oklahoma county by the state of Oklahoma, on the relation of George M. Callihan, as county attorney, against the defendants, Wokan Amusement Company, the Capitol City Kennel Club, and others, seeking to enjoin the defendants from operating and conducting certain dog races; it being alleged that the system of operation of said races constitutes a species of gambling, inhibited by the laws of the state, and that the maintaining a place and operating and conducting of said races, by reason of the violation of the laws of the state relating to gambling, constitutes a nuisance, and that same should be abated by a permanent injunction. A temporary restraining order was issued, and answer having been filed, the cause was tried on the merits, resulting in a decree denying said permanent injunction, and dissolving said temporary restraining order.

The system of operation is unique, and the county attorney asserts that it is simply an ingenious way for patrons of the dog races to place bets or wagers upon certain dogs, while the defendants contend that the system has none of the elements that taint it with wagering or betting on the outcome of any particular race.

It appears from the record that a patron pays 75 cents for general admission to the inclosure where the races are held, and that such general admission entitles him to witness all of the races held during that particular performance. It also appears that there are about 3,800 seats in the grand stand, and that unless the patron desires to stand up during the entire performance, he is required to pay in addition the sum of $2 for a reserved seat or $5 for a box. It further appears from the record that each ticket for a reserved seat or box seat has printed thereon certain distinguishing characteristics such as "Issue 1," "Series AA," "Section A.A.," "Seat No. 3," and on the back of each ticket is a certificate of stock of the par value of 5 cents, certifying: "This is to certify that the bearer hereof is the owner of ONE share of the capital stock of Capitol City Kennel Club Inc. Upon the purchase of this stock the purchaser hereby delegates to the board of directors of Capitol City Kennel Club Inc. the power and authority in their discretion, to at any time retire at its purchase price, this or any stock of whatever series then outstanding in said corporation, and upon retirement, to vote the dividends. The foregoing provisions shall be binding upon all subsequent holders of this stock."

It is also shown that these distinguishing marks on the ticket have particular reference to the dogs as they are listed in each race; that under the scheme of operation a patron selects one of the eight dogs which he believes is vested with ability to outrun the other seven dogs in that particular race, and having made such choice he then selects the reserved seat which is represented by his favorite dog, and if he has chosen wisely and his dog places in the race he is entitled to certain dividends on his stock which are figured on the basis of the price of the seats, which is $2, or $5, as the case may be, instead of the price of his stock, which is 5 cents. In the event his dog is not successful, he may return his stock to the company and he is guaranteed a dividend of 20 per cent. regardless of the outcome of the race, so that the company pays him 6 cents upon the return of the stock. However, the price of the seat is not returned.

It appears that eight or nine races are run at each performance; that a reserved seat is good for only one race, so that, strictly speaking, a reserved seat privilege for the entire performance would range from $16 to $45, depending on the number of races and whether the patron has an ordinary seat or a box. In due deference to the management, it might be said that the system as operated does not work so great a hardship upon the patrons for the reason that many of the reserved or box seats which are purchased are never used by the purchaser, in which event a patron is allowed to retain his seat so long as it is not purchased by some one who has a bona fide intention to sit in it, which rarely happens.

The record shows that a number of witnesses who testified herein purchased several seats during the course of one performance, being prompted either by a desire to change scenery or else by a pecuniary interest in the particular dog representing the seat. The evidence shows that the grand stand is divided into three series of seats and that each series is divided into eight sections; that a printed program is furnished, giving the number of each dog, and if the patron believed that dog No. 1 would win first place, he would buy a reserved seat ticket series A-1; if he believed his dog would run second, he would buy a ticket series B-1, and if he believed his dog would likely run third, he would buy ticket numbered series C-1; that if the patron made the right guess he would receive his proportionate share of the contributions ($2 for reserved seats and $5 for box seats) made by all other persons who bought tickets in that race, who failed to exercise that superior judgment in the selection of the fastest canine in that particular race. Thus it behooves every patron to inform himself in advance of each race as to the pedigree and past performance of the various canine participants in the race, lest, by his lack of information, he chooses a seat represented on the race course by an animal symbolizing fidelity instead of fleetness, which error of judgment would be detrimental not only to his enthusiasm, but also to his finances, when the board of directors meets to "retire" his stock and vote the "dividends." In other words, the total receipts, less 10 per cent. reserved by the management for operating expenses, for that race, would be equally divided among those who bought the right ticket. All those who did not win could sell their 5 cents worth of stock back to the company and receive a dividend of 20 per cent., or 6 cents.

The defendants claim that the county attorney presented this cause to the district court on the basis of section 1935, C O. S. 1921 (section 2187, O. S. 1931), which they say has been suspended by a referendum submitted on August 4, 1914, and that this statute is not...

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