Whitson v. City of Cherokee

• Decision Date: 04 June 1935
• Docket Number: 23854.
• Citation: 46 P.2d 907,173 Okla. 208,1935 OK 650
• Parties: WHITSON v. CITY OF CHEROKEE.
• Court: Oklahoma Supreme Court

46 P.2d 907

173 Okla. 208, 1935 OK 650

WHITSON v. CITY OF CHEROKEE.

No. 23854.

Supreme Court of Oklahoma

June 4, 1935

Rehearing Denied July 16, 1935.

Syllabus by the Court.

1. Equity will restrain, by injunction, criminal proceedings under an invalid ordinance or statute, which, if allowed to proceed, would destroy property rights and inflict irreparable injury.

2. Under sections 2425 and 5998, O. S. 1931, cities and towns of Oklahoma are authorized to enact ordinances to restrain prohibit and suppress the game of "snooker."

3. That the change in the name or a modification in the method of playing a game will not take it out of the operation of a statute, which authorizes cities and towns to restrain prohibit, or suppress it, if the principle of the game remains the same.

Appeal from District Court, Alfalfa County; J. W. Bird, Judge.

Action by Carl Whitson against the City of Cherokee, a municipal corporation. Judgment for defendant, and plaintiff appeals.

Affirmed.

Guy D Talbot, of Cherokee, for plaintiff in error.

Walter L. Owen, of Cherokee, for defendant in error.

PER CURIAM.

This is an action brought in the district court of Alfalfa county by Carl Whitson, as plaintiff in error, against the city of Cherokee, a municipal corporation, as defendant in error. The parties will hereafter be designated as they appeared in the trial court.

Plaintiff filed his action against the defendant for an injunction seeking to prevent the defendant from enforcing certain ordinances of the city of Cherokee, which prohibited the keeping, maintaining, and conducting of a snooker hall or snooker parlor within said city, and providing a penalty for the violation thereof.

Plaintiff in his petition, sets forth that he is operating and conducting a place of business known as a "snooker parlor" or a place where tables, balls, cues, and other equipment are used in playing the game known as "snooker," which are furnished or rented for hire to his patrons, and that said business produces a revenue;that the same is a legitimate business and not conducted in violation of the laws of the state of Oklahoma or any valid ordinance of the city of Cherokee, and that unless defendant is enjoined from placing plaintiff, his agents, servants, and employees under arrest and from prosecuting them for conducting said business, his business will be destroyed, and he will suffer irreparable injury. To this petition the defendant answered with a general denial and setting up, as a defense, ordinance No. 525, which declared the keeping, maintaining, and conducting a snooker hall or snooker parlor a public nuisance, and also ordinance No. 526, which prohibited the keeping, maintaining, or conducting a snooker hall or snooker parlor within the said city and providing a penalty for the violation thereof.

Upon the issues thus joined, this cause was heard upon an agreed stipulation of facts, and judgment was rendered by the court denying plaintiff a permanent injunction, and dissolving the temporary injunction theretofore issued, the court assigning as its reason that the plaintiff had a complete, speedy, and adequate remedy at law.

Under the agreed state of facts, it is shown that these ordinances were duly and regularly enacted by the proper municipal authorities; that the plaintiff is the owner of certain property, consisting of tables, balls, cues, and other furniture and fixtures, adapted for the use in the playing of "snooker"; that said game is different from pool or billiard, but played upon pool or billiard tables with pockets and with cues and balls resembling those used in a pool game, but somewhat different in size and number; that said place is a place of amusement, and that the equipment of plaintiff is rented to customers who play the game of "snooker," and as a general rule the loser pays for the use of the equipment and the winner pays nothing. That the city, unless enjoined, will arrest the plaintiff, his servants, agents, and employees for violation of the provisions of said ordinances.

The plaintiff urges only one ground for reversal of this cause, and that is that the trial court erred in refusing a permanent injunction and dissolving the temporary injunction on the ground that the plaintiff had a speedy and adequate remedy at law.

It is a well-established rule in this...