This is а petition for a writ of prohibition seeking to prevent the Superior Court of the County of Los Angeles from enforcing the provisions of a temporary injunction
pendente lite
issued after hearing on an order to
The essential facts of the case are as follows:
Mоnterey Club, one of the petitioners herein (hereinafter referred to as the club), is a corporation organized and existing under and pursuant to the laws of this state (Civ. Code, Div. 1, Pt. 4, Title 12, art. 1). Such petitioner is a nonprofit corporation and its primary purposes, as outlined in its articles of incorporation, are as follows: “To promote, advance and maintain good will and harmonious action among the individual members; to establish higher standards of social relationship between the individual members and the public at large, to the end that the members may receive the benefits and advantages of social relationships and social intercourse, and that the public in general be benefited thereby. To establish a place or places of meeting so that the members may derive the maximum amount of pleasures and recreation.” The membership of said club totals some 400, each and all of whom were admitted and elected to such membership pursuant to the articles of incorporation and the by-laws of the club. As a prerequisite to membership in the club an applicant therefor is required to make a written application, whereupon an investigation of such applicant’s reputation, character and habits is made to determine his fitness and eligibility for membership. If such inquiry results favorably to the applicant he may be elected as a member in accordance with the by-laws, rules and regulations of the club as promulgated by its board of directors. A courtesy or guest card may be issued to a non-member, entitling the latter to the privileges of the club for a period not to exceed two weeks. Use of the club and its facilities is limited to the members and guests, and the public is not invited or permitted to enter such club or participate in its activities.
The ordinance provides that the terms thereof shall not apply to regularly incorporated social clubs or fraternal organizations not open to the general public and whose membership is restricted to those persons regulаrly and formally elected to membership therein, nor to any charitable or benevolent organization which may from time to time hold card parties, the proceeds from which are used for charitable or benevolent purposes.
Concededly, the petitioner Frank Martin is the holder of an unrevoked license issued to him pursuant to the terms of the foregoing ordinance, authorizing him to operate card tables in conformity with such ordinance upon the premises occupied by the petitioner Monterey Club within the city of Gardena, and of which premises the said Martin is lessee.
It further appears that when by resolution of the board of directors of the club it was voted to domicile said club and hold the meetings thereof in the premises of which petitioner Martin was the lessee, and in connection with which premises he held a license from the city of Gardena to operate tables for the playing of draw poker, said club entered into a contract in writing with petitioner Martin, under the terms of which the latter undertook and agreed to provide and maintain suitable furniture, fixtures and equipment for the use of said club and its members and also to maintain said premises as a suitable meeting place for the members of the club and to provide facilities for such members to engage in lawful games of cards, checkers, dominoes and other recreational activities; to equip and maintain suitable facilities for the serving of non-alcoholic beverages, sandwiches and other foods to the members of the club. Said contract further provided that Mr. Martin would refuse permission to аny person other than a
bona fide
member or guest of said club to enter upon the premises for the purpose of using the facilities therein located. Under the terms of the contract petitioner Martin was also invested with the right to make a reasonable charge for furnishing such facilities, service and food to the members of said club or their guests; and he agreed to provide and furnish necessary employees, and would have the right to refuse use of the premises to any individual member
It is further made to appear that petitioner Martin, pursuant to the terms of his contract, equipped and furnished the premises in question at a substantial cоst; that he is the owner of such equipment and has carried out all the provisions of the said contract upon his part agreed to. As a part of such facilities, it appears that petitioner Martin has, in accordance with the permission granted him by the license from the city of Gardena, furnished and operated tables upon which members and guests of the club were permitted to play draw poker, “low ball,” and also games commonly known and referred to as contract bridge and rummy.
In connection with the operation of said tables, the pleadings indicate that in the playing of low ball, “before each hand each player antes five cents, and that the cards were dealt out one at a time until each player had five. The player to the left of the dealer had the рrivilege of opening first, and fifty cents was the minimum and maximum bet, with as many raises and re-raises as the players desired to make. Those who met the opening bet then drew the number of cards they wanted; then it was up to the players whether to check or bet, and the lowest valued hand won the pot.” That in playing the game of draw poker the cards were dealt out as aforesaid; “that the player on the left of the dealer had the privilege of opening the pot; that the deal passed to the player immediately to the left of the dealer after each hand,” there being no “banker” who conducted the game or obtained a percentage therefrom. “That each player anted five cents before the deal; that the pot could be opened with jacks or better, with a minimum and maximum bet of twenty-five cents and fifty cents respectively, with no limit on the number of raises and re-raises. That the best high poker hand won the game.”
It further appears that in connection with the playing of the game of low ball poker, each half hour one of the attendants upon the premises came to the table and collected a twenty-five-cent chip from each player; that this was for rent of the chair and table. From the players engaged in the game of draw poker the attendant collected two five-cent chips as rental for the chair and table from each player.
The complaint filed by the District Attorney of Los Angeles County in behalf of the people of this state alleged that the defendants therein named, including petitioner herein Prank Martin, for a period of at least ten days prior thereto and with the knowledge and consent of the owner of the premises, were using such premises and the furniture and fixtures therein contained for the purpose of “carrying on and conducting as the owners and operators thereof said gambling games on said premises under the fictitious name and style of Monterey Club. Thаt in conducting, operating and maintaining said gambling games, said defendants, and each of them, have caused said premises, buildings, furniture, fixtures and other equipment hereinabove described to be used in the way and manner and for the purpose of inducing, inviting and encouraging the public generally to enter into said premises, and to then and there engage in and play at said gambling games. ...” Then follows a description of the manner in which said games were played as hereinabove set forth. The complaint further charged: “That the maintenance, existence, operation and conduct of said gambling games by the owners and operators thereof has in the past constituted, and does now and will in the future constitute the keeping of a gaming and gambling house and public nuisance injurious to the health of the people of the State of California, for the reason that it tends to and does in fact debase and corrupt the public morals, encourages idle and dissolute habits, draws together great numbers of disorderly persons, disturbs the public peace, brings together idle persons and cultivates dissolute habits among them, and is thereby injurious to health, indecent and offensive to the senses, and impairs the free enjoyment of life.”
The prayer contained in said complaint was for a permanent injunction restraining the defendants from conducting, maintaining or operating the gambling games in question
Upon the filing of said complaint an order to show cause and temporary restraining order were issued. On the return day fixed in the order to show cause defendants named in said action appeared and presented affidavits in opposition to the requested preliminary injunction. These affidavits included one by Myron H. Porter, president of the Monterey Club, in which he set forth the status of such club as a nonprofit corporation, detailed the terms of the aforesaid agreement between the club and petitioner herein, Prank Martin, and also averred that no persons were permitted to enter upon or in said premises except duly elected and qualified members of the club or
bona fide
guests. He denied that the games played in and upon the premises were unlawful or that any of the activities conducted upon said premises, including the playing of draw poker or low ball poker, were harmful to the public or against public health, safety, peace or interest in any manner or way, or indecent or offensive to the senses of the community or neighborhood. This affiant further denied that the activities of the club in the playing of games therein attracted a great number or any number of dissolute persons, but on the contrary stated that no disorderly persons were permitted to come or ever did come upon the premises; that no persons of idle or dissolute habits or of debased or corrupt character were permitted upon the premises. Corroborative of the statements contained in the affidavit of the president of the Monterey Club was the affidavit of petitioner Prank Martin. It further appears from the last-named affidavit, and is denied by respondents
only
upon the ground of lack of information or belief, that the maintenance, operation and conduct of places of business where draw poker and other similar games are played is permitted throughout the State of California, and the names of various cities in this state, totaling seventy-six, together with the number of similar enterprises operated in
The mayor of the city of Gardena by his affidavit stated that he had visited the Monterey Club and that the same was conducted in an orderly and peaceful manner; that the members were law-abiding citizens; that he had never observed any immoral or dissolute practices, and that, as stated by him, “there is and was nothing about the said club or the manner in which it was conducted, or the conduct of the employees or members thereof, which was in any way whatsoever offensive to public morals or decency, nor of such a character as to interfere with the peace and contentment of the community nor was the same a nuisance of any kind or character. On the contrary, in the opinion of this affiant, said Monterey Club is and at all times since its establishment has been a credit to the community.”
The affidavit of the mayor was corroborated by those of Earl Jacobs and Earl P. Powers, members of the council of the city of Gardena. That the Monterey Club was maintained as a private club catering only to its members; that the city of Gardena has a population of approximately 6,000 persons; that he never observed any one engaged in any disorderly conduct nor had he ever seen or heard оf any breach of the public peace by anyone; that he had never witnessed any offensive conduct within or about said club, was the statement contained in the affidavit of P. MacDonneil, secretary of the Gardena Valley Chamber of Commerce, secretary of the Harbor District Chamber of Commerce, and president of the Lions Club of Gardena. Lewis T. Guild, Jr., editor and publisher of the Gardena Valley News, made affidavit to the same effect, and he too averred that the club “at all times since its establishment has been a credit to the community. ’ ’
In opposition to the foregoing affidavits and in support of the order to show cause, there were presented the affidavits of two deputy sheriffs of the county of Los Angeles, who
There is also on file the answer of the defendants in the action instituted by the district attorney, in which pleading the alleged illegality of the games played in the Monterey Club is denied; and which pleading denies that the public generally is invited or permitted to engage in such games upon the premises of said club and alleges that on the contrary the use of said club and its facilities is limited to duly elected members and bona fide guests. The answer further denies that the operation of said club is a public nuisance, injurious to the health of the people, or that any idle, dissolute persons are or ever have been permitted within said club. As a further, separate and affirmative defense, the answer alleges facts in connection with the operation of the club which are heretofore in this opinion set forth, and which facts, generally speaking, were presented upon the hearing of the order to show cause by affidavits, from which quotations hereinbefore have been made.
Respondents first urge that petitioners here are not entitled to the writ sought on the ground that the court was vested with authority to hear and determine the cause; that such authority constitutes jurisdiction, and jurisdiction carries with it the power to decide wrongly as well as the power to decide rightly. Respondents’ claim in this regard cannot be uphеld. In the recent case of
Fortenbury
v.
Superior Court,
16 Cal. (2d) 405 [
It is next urged by respondents that petitioner Monterey Club is not entitled to a writ of prohibition because the club was not named in nor a party to the injunction proceeding pending before respondent court. This contention is equally without merit, because section 1103 of the Code of Civil Procedure authorizes the issuance of the writ upon the verified petition of “the person beneficially interested.” We hold that the claimed legal rights of Monterey Club being injuriously affected by the judicial action of respondent court, the club is “beneficially interested” and therefore authorized to apply for a writ of prohibition.
While it is true, as claimed by respondent, that ordinarily as a condition precedent to an application for a writ of prohibition on the ground of want of jurisdiction in the inferior tribunal to make the order, the claim of such excess or lack of jurisdiction should be called to the attention of the respondent tribunal unless the complaint on its face reveals its failure to state a cause of action, nevertheless this is not essential to the jurisdiction of this court to grant a writ of prohibition.
(Havemeyer
v.
Superior Court,
While it may be conceded, as urged by petitioners, that where, as here, an answer has been filed specifically
But it is futile to quibble over technical bbjections when the sole question presented to the trial court and now directed to us was and is whether the playing of draw poker under the circumstances prevailing at the Monterey Club was a nuisance and subject to be abated and enjoined. It is not necessary for us to resort to the common law for a definition of what constitutes a nuisance, because, as was held in an especially well-considered opinion prepared by Mr. Chief Justice Gibson of the Supreme Court in the case of
People
v.
Lim,
18 Cal. (2d) 872 [
Section 3479 of the Civil Codе defines a nuisance, so far as here applicable, as ‘‘ anything yvhich is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property. ...” In California the common law is inapplicable where, among other things, it has been modified by our statutes.
(Estate of Elizalde,
Sections 3480 and 3481 of the Civil Code define a рublic and a private nuisance. Section 3482 of the same code
The lack of authority of the courts to resort to equity for the purpose of justifying action of the character taken by the court in the instant case is clearly established in People v. Lim, supra, where it is emphatically stated that “ . . . the equitable remedy has the collateral effect of depriving a defendant of the jury trial to which he would be entitled in a criminal prosecution for violating exactly the same standards of public policy. . . . The defendant also loses the protection of the higher burden of proof required in criminal prosecutions and, after imprisonment and fine for violation of the equity injunction, may be subjеcted under the criminal law to similar punishment for the same acts. For these reasons equity is loath to interfere where the standards of public policy can be enforced by resort to the criminal law, and in the absence of a legislative declaration to that effect, the courts should not broaden the field in which injunctions against criminal activity will be granted. Thus, for the reasons set forth, the basis for an action such as this must be found in our statutes rather than by reference to the common law definitions of public nuisance.”
It might be added here by way of emphasis that even if the playing of draw poker were a crime, which under the statutes of California it is not, still a court of equity would be without jurisdiction to enjoin the commission of such an act merely because when committed it would constitute a crime. A court оf equity will not undertake to enforce the criminal law.
(Weis
v.
Superior Court,
As set forth in the case of
People
v.
Lim, supra,
the courts have therefore refused to grant injunctions on behalf
Any ordinance passed by a municipal corporation within the scope of the authority conferred on it has the same force within its corporate limits as a statute passed by the legislature has throughout the state.
(Marculescu
v.
City Planning Com.,
7 Cal. App. (2d) 371 [
Neither playing draw poker nor maintaining a place where it is played being an offense under our law, and therefore being lawful, it follows that the city of Gardena was authorized to license and regulate the operations of such pastime within its corporate limits, and no action can be maintained in law or equity against one operating a business authorized by statute or ordinance upon the claim that such enterprise or business is a public nuisance. (Civ. Code, sec. 3482. ) Nor, from the fact that gambling is associated with the games herein described, does it necessarily follow as a matter of fact or as a matter of law that a public nuisance is thereby born of such pastime. Gambling is neither unlawful per se nor a public nuisance per se in California. In the face of the declaration of the legislative branch of the government, to which branch alone is confided the duty of determining the policy of this state in the matter of public morals, it does not lie within the power of the courts to impose their views as to what is moral or immoral, or what is beneficial or deleterious to public welfare, upon the residents of a community who have legalized the playing of a game not outlawed by statute. In a field where the meaning of such terms as “public nuisance” is so vague and uncertain, it “is a proper function of the legislature to define those breaches of public policy which are to be considered public nuisances within the control of equity. Activity which in one period constitutes a public nuisаnce, such as the sale of liquor or the holding of prize fights, might not be objectionable in another. Such declarations of policy should be left for the legislature. ...” (People v. Lim, supra.)
Playing at any game, even for money, is not of itself an offense at common law. The offense, if any, must be created by statute, and can only be punished as the statute directs.
(United States
v.
Willis,
It may be conceded that in the case of People v. Lim, supra, the Supreme Court held that a сomplaint containing averments similar to those pleaded in the case at bar was adequate and sufficient as against a demurrer. We refer to the allegations that the alleged gambling house “ draws together great numbers of disorderly persons, disturbs the public peace, brings together idle persons and cultivates dissolute habits among them, creates traffic and fire hazards, and is thereby injurious to health, indecent and offensive to the senses, and impairs the free enjoyment of life and property. ’ ’ And, as also pointed out in the Lim case, the free enjoyment of life and property and the dangers designated in the nuisance statute may be impaired through the assemblage of disorderly people who disturb the peace and obstruct the traffic. However, it is important to note that in the casе before us the sufficiency of the allegations contained in the complaint is not the issue we are called upon to decide. In the instant case not only was an answer filed, but a hearing was had upon the order to show cause predicated upon the averments of the complaint, at which hearing, as heretofore pointed out, many affidavits were filed. At that hearing not one iota of evidence was presented which would bring the conduct of petitioner Martin, the club, or its activities, within the pale of our California nuisance statute (Civ. Code, secs. 3479, 3480); but on the contrary, it was established without contradiction that none of the hazards designated in the statute were present in the operation or conduct of the Monterey Club.
As above noted, the complaint filed by the district attornеy was an injunction action seeking to abate a public nuisance. The respondents’ answer in the within proceedings contains the following allegation: “Respondents allege that the purpose and object of the complaint in injunction is to abate a common nuisance consisting of a common gaming and gambling house by enjoining gambling in connection with the games of draw poker and low ball poker as described in said complaint. ’ ’ The utter failure of proof on this issue,
From the foregoing it follows that the temporary injunction granted by respondent court against petitioners was beyond and in excess of the jurisdiction of such court. Let a peremptory writ issue as prayed.
York, P. J., and Doran, J., concurred.