West Indies, Inc., v. First Nat. Bank of Nev.

• Decision Date: 17 January 1950
• Docket Number: No. 3581,3581
• Citation: 214 P.2d 144,67 Nev. 13
• Parties: WEST INDIES, Inc. v. FIRST NAT. BANK OF NEVADA.
• Court: Nevada Supreme Court

Page 144

214 P.2d 144

67 Nev. 13

WEST INDIES, Inc. v. FIRST NAT. BANK OF NEVADA.

No. 3581.

Supreme Court of Nevada.

Jan. 17, 1950.

Royal A. Stewart, of Reno, for appellant.

John S. Belford, of Reno, for respondent.

PRIEST, District Judge.

This is an appeal from a final judgment of dismissal of an action commenced in the Second Judicial District Court of Washoe County, after issue joined on the pleadings. Appellant was plaintiff and respondent was defendant in the trial court.

The complaint alleges that on October 23, 1948, decedent Leonard H. Wolff, drew three checks upon respondent in the respective amounts of $7,000.00; $29,000.00; and $50,000.00, and sets out the checks in haec verba, and alleges that same were presented to respondent for payment on October 24, 1948, and dishonored; that Leonard H. Wolff died testate on October 23, 1948; that on November 22, 1948, the respondent was appointed by the Second Judicial District Court, administrator, cum testamento annexo, and on said date qualified, and is now qualified and acting as such administrator of the estate of the said Leonard H. Wolff; that on February 15, 1949, the appellant duly presented its claim to said administrator for the sums set out in said checks totaling $86,000.00, which claim was rejected and refused of February 16, 1949, by an instrument in writing. Plaintiff prayed for judgment against the defendant as administrator of the estate of Leonard H. Wolff, in the sum of $86,000.00 and for costs of suit, payable out of said estate in due course of administration.

Respondent answered and set up as an affirmative defense that the said checks had been given by decedent to plaintiff in payment of money theretofore won by plaintiff from defendant at the gambling game of 'twenty one' and for no other purpose and that the sole consideration for the execution and delivery thereof was money theretofore won by plaintiff from decedent at said gambling game.

Plaintiff's reply admitted the allegations of the affirmative defense heretofore set out. Subsequent to the filing of its reply the plaintiff moved the court for an order permitting an amendment to the reply in such a manner as to show that at all times material to the action, appellant was regularly licensed by state authorities as by law provided and required, to operate the said game referred to. Without objection this proposed amendment was allowed.

Defendant then moved the court for the entry of judgment on the pleadings dismissing the action, upon the ground that if said checks were so executed and delivered, they were executed upon the sole consideration of money won at gambling. Upon stipulation of counsel the motion to dismiss was heard by Hon. Merwyn H. Brown, Judge of the Sixth Judicial District Court. Upon presentation and argument the court entered an order granting the motion for judgment on the pleadings and accordingly entered judgment for defendant. From the judgment of dismissal plaintiff appeals.

At the argument herein counsel for the respective sides mentioned possible distinctions between actions based upon the checks or based upon the alleged indebtness or otherwise founded, but upon being asked by the court whether or not it was the desire of counsel that the opinion should pass squarely upon the point of collectibility by the gambling establishment of money won at a duly licensed game, each replied that he would like the opinion to determine squarely such question. There is therefore the one question presented here to this court, viz: May a gambling house or the proprietor thereof maintain an action at law for the collection of money won at a duly licensed game? We have thus limited the inquiry and have omitted from this determination the question of collectibility of money by a patron of winnings from a duly licensed game. Such question is not presented here.

Appellant contends: That the earlier decisions of this court are not controlling being decided under other statutes declaratory of a different public policy; that the English common law, if adopted by Nevada, has been altered by statute; that since 1909 the public policy of this state has been substantially altered with reference to gambling; that licensed gambling is no longer a public nuisance or contrary to public policy, and that our gambling enactments are repugnant to the English statutes.

Respondent contends: That a portion of the common law known as the Statute of Anne, 9 Anne, c. 14, 4 Bac.Abr. 456, relevant to gambling has been effectually adopted by this state; that if not effectually adopted heretofore it is nevertheless an integral part of the law of this state; that the statute is severable and the adoption of a pertinent part is not dependent upon the adoption of the whole; that the law does distinguish in its regulatory power between useful callings and those that do not contribute to the economic good; that the statute is prohibitive rather than permissive; that an express clause in the act making such accounts collectible would have been ineffectual in the absence of a change of title; and that the social consequences of a change in the recognized law are great and that an intent to repeal by implication should not be imputed to the legislature in the absence of a clear showing.

The first pronouncement of this court upon this question was in Scott v. Courtney, 1872, 7 Nev. 419, in which case the court construed the statute of 1869, p. 119. From this statute we quote sections 1, 3, and 5.

'Section 1. Each and every person who shall deal, play, carry on, open, or cause to be opened, or who shall conduct, either as owner or employe, whether for hire or not, except under a license as hereinafter provided, any game of faro, monte, roulette, lansquenette, rouge et noir, rondo or any banking game played with cards, dice, or any other device, whether the same be played for money, checks, credit, or any other representative of value, shall be guilty of a misdemeanor, and on conviction thereof, shall be punished by a fine of not less than one thousand, nor more than three thousand dollars, or by imprisonment in the County Jail not less than three months nor more than one year, or by both such fine and imprisonment.

'Sec. 3. Blank licenses shall be prepared by the County Auditor, which shall be signed, issued and accounted for, as is by law provided in respect to other county licenses. Each license delivered by the Sheriff, under this Act to any person, shall contain the name of the licensee, a particular description of the room in which the licensee desires to carry on the game licensed, and shall by its terms authorize the licensee to carry on one of the games mentioned in the first section of this Act, specifying it by name, in the room therein described, for the period of three months next succeeding the date of issuance of the license. The said license shall protect the licensee and his employer or employers ¹ against any criminal prosecution for dealing or carrying on the game mentioned in the room described during said three months, but not for dealing or carrying on any other game than that specified, or the specified game in an other place than the room so described; provided, that the licensee shall be entitled to deal, or play, or carry on two or more games in the same room, by paying a license for each game so dealt or carried on.

'Sec. 5. All moneys received for licenses under the provisions of this Act, shall be paid, one half into the County Treasury and one half into the State Treasury, for general county and State purposes respectively.'

In Scott v. Courtney, supra, suit was brought by the proprietor of a duly licensed game to collect money lost at such game. Without a declaration that Nevada had adopted any portion of the common law of England known as the Statute of Anne, heretofore referred to, for it appears that the question was never raised, the court nevertheless concluded, in reliance principally upon decisions of the state courts under similar statutes, that the so-called indebtedness was not collectible and that the action could not be maintained. The immunity clause in the statute, i. e. the declaration in section 3, that 'the said license shall protect the licensee and his employer or employers against any criminal prosecution for dealing and carrying on the game mentioned,' did obviously have certain and considerable persuasive force in leading the court to the conclusion that the license was by the statute limited and losses at such games were not collectible. This immunity feature of the law will be later discussed. The court said:

'In the United States, wagering and gaming contracts seem to have met with no countenance from the courts, and consequently in nearly every state they are held illegal, as being inconsistent with the interests of the community and at variance with the laws of morality. 2 Smith's Leading Cases, 343.'

Section 9021 N.C.L. of 1929, provides as follows: 'The common law of England, so far as it is not repugnant to, or in conflict with the constitution and laws of the United States, or the constitution and laws of this state, shall be the rule of decision in all the courts in this state.' This has been held to include the English statutes in force at the time of the American Declaration of Independence. Ex parte Blanchard, 9 Nev. 101.

The next enactment of the Nevada legislature, affecting gambling was passed in 1879, Statutes of Nevada 1879, p. 114, and is entitled; 'An Act to Restrict Gaming, and to repeal all other Acts in relation thereto.' From this statute we quote sections 1, 3, and 5.

'Section 1. Each and every person who shall deal, play, carry on, or cause to be opened, or who shall conduct, either as owner or employee, whether for hire or not, except under a license, as hereinafter provided, any game of faro, monte, roulette, lansquenette, rouge-et-noir, rondo, keno, fantan, twenty-one, red-white-and-blue,...