55 S.W.2d 288 | Mo. | 1932
On April 15, 1932, respondent, Wellston Kennel Club, describing itself as "an unincorporated joint stock association," filed bill for injunction in the Circuit Court of St. Louis County, Missouri, against the Prosecuting Attorney, the Sheriff and the County Counselor of said county, the Attorney-General of the State, and the Constable of St. Ferdinand Township in said county and state, appellants herein, to restrain them from interfering in any manner with respondent's activities in conducting, using and participating in the public subscription plan or system of raising funds and awarding purses, defraying expenses and awarding "oversubscriptions" therefrom within its race track (for dog racing) located on State Highways U.S. 40 and U.S. 61, in said county and State. Defendants filed special demurrer thereto on the ground that plaintiff was without legal capacity to sue. The demurrer was overruled and final judgment was entered on May 11, 1932, permanently enjoining defendants as prayed, from which judgment they have appealed. On motion the appeal was advanced because of public interest involved. *804
Appellants assign error to the court's action in overruling their special demurrer; also, to rendition of the judgment because plaintiff's petition fails to state facts sufficient to constitute a cause of action against defendants. We shall consider the latter assignment first.
In 14 Ruling Case Law, pages 426, 427, section 130, it is said:
[1] "The general rule is that a court of equity has no jurisdiction or power to interfere to arrest the authorities charged with the execution of the criminal law, whether it pertains to the State at large, or to the municipalities, which are agencies in the administration of civil government. This interference has been held so completely beyond the jurisdiction of courts of chancery that their decrees in in such cases have been disregarded as absolutely void in collateral proceedings, and persons arrested for contempt for violating their injunctions discharged on habeas corpus."
State ex rel. v. Wood,
"A court of equity has no jurisdiction of criminal matters, that subject being committed to courts of law; as a matter of public policy the courts ought not to interfere with the representatives of the public seeking enforcement of the law."
In Kearney v. Laird,
[2, 3] Counsel for respondent concede that such is the general rule, but insist that plaintiff's allegations of threatened trespass and irreparable property loss bring it within the exception that police officers may be enjoined from illegally doing irreparable injury to the property of an individual. Of this exception it is said in 32 Corpus Juris, section 443, page 280:
"It is only where the statute or ordinance is unconstitutionalor otherwise invalid and where in the attempt to enforce it there is a direct invasion of property rights resulting in irreparable injury that an injunction will issue to restrain the enforcement thereof. Both of these elements are indispensable, and the latter element is not present where it appears that the injury or loss to plaintiff's business *805 or rights of property would be only such as would incidentally flow from the arrest and prosecution thereunder." [Italics ours.]
In Shuman v. Gilbert,
[4] Looking to plaintiff's petition for the facts in the case we find that its objects and purposes, as set forth in its articles of association, are as follows:
"To own, lease, construct, maintain and operate race course grounds; to conduct greyhound racing and other racing contests and exhibitions; to create or make up and award or distribute purses upon trials or contests of speed and endurance between and among racing hounds upon the public subscription plan or system; to conduct agricultural fairs, live-stock and other shows, fairs, entertainments *806 and amusements; to lease and let to others the right to maintain and operate restaurants and stores and booths for the lawful sale of food and refreshments and all other articles of merchandise of every kind and character whatsoever on said grounds; and to do and transact any and all other lawful business usually transacted by or appertaining to race track or amusement enterprises."
It is also alleged therein that plaintiff "has leased, a certain tract of land located on State Highway No. U.S. 40 and U.S. 61, in St. Louis County, Missouri, for the purpose of conducting its said business in accordance with the terms of its said articles of association; that the said tract of land is now improved and equipped with grandstand for spectators, tracks, kennels and stalls for the purpose of conducting racing and race hound meetings, and that it has paid and has become obligated to pay in the lease, rehabilitation, improvement and equipment of said grounds for the purposes aforesaid a large sum of money, to-wit $100,000; that it is the purpose and intention of plaintiff to inaugurate and carry on said business for which it was organized, at the place aforesaid."
It is further alleged that plaintiff "has provided a place within its said race track grounds, an inclosure where it is intended to hold said races, at which plaintiff intends to conduct and supervise the public subscription or system of creating or making up an award or disbursing stipulated purses on said races for the use and benefit of such of its patrons as may wish to subcribe thereto; . . . that said public subscription plan or system is a tripartite arrangement or agreement whereby the plaintiff and the owners of the several entries in each of said races and such of its patrons as shall become subscribers to the purse therein in the manner hereinafter described may create or make up a purse on each of the races to be run at said meeting, and after the same is run, award and disburse said purse and, when necessary, any over-subscription thereto, in the manner hereinafter alleged; that the said public subscription plan or system which plaintiff intends to and will supervise and conduct in connection with said racing at said race meetings within the enclosure of said grounds will be supervised and conducted in manner and form hereinafter set out.
"Plaintiff states that said races or contests, in the result of which it has no financial interest, are arranged to test the speed of such hounds as may be duly entered in each of said races under the rules and regulations of said association; that no more than eight hounds will contest in each race; that plaintiff will offer a purse of not less than $100 nor more than $150 for the winners of each of said races, which said purse shall be distributed under the terms and conditions of a contract of entry made between the owner of each of said hounds *807 entered in each of said races and plaintiff, which said contract in blank form is in words and figures as follows, to-wit:
Color ________________________ Race ____________________________
Age __________________________ Entry No.________________________
Sex __________________________
Sire _________________________
Dam __________________________
"`The owner of the above entered dog hereby leases the dog to the Wellston Kennel Club for the above-named race under the following conditions, to-wit:
"`That should the dog finish first, said Wellston Kennel Club will pay said owner 70 per cent of the purse named in the condition book of the meeting. Should the dog finish second, 20 per cent and if it finishes third, 10 per cent.
"`The owner agrees to pay the entry fee and deliver the dog in the paddock fifteen minutes before the time set for said race, in proper racing condition, and also agrees to hold said Wellston Kennel Club blameless for any injury in said race.'
"Plaintiff further states that it will publish and circulate a printed program which shall designate each race and the hounds entered therein by number and that an employee or employees of plaintiff will accept from patrons in attendance subscriptions to the said purses offered in each of said races, and will issue and deliver to any patron who shall make such subscription to said purse a receipt, which, in blank form, is in words and figures as follows, to-wit:
Amount _________________________ Race ___________________________ Entry __________________________
"`(The above sum is received upon the conditions printed on the reverse side hereof.)
"`If the entry number indicated on the reverse side hereof shall be first in the race, the holder will be paid the proportion of 70 per cent of all that remains, if any, of the contributions made to the race, after payment of purses and expenses, that the amount received hereunder bears to the total amount so remaining. If the entry number indicated on the reverse side hereof shall be second in the race, the holder will be paid 20 per cent of the aforesaid amount. If the entry number on the reverse side hereof shall be third in the race, the holder will be paid 10 per cent of the aforesaid amount.'
"Plaintiff further states that under and in accordance with the terms and conditions of the aforesaid contract to be entered into by and between all of the aforesaid parties in each of said races plaintiff will pay to the owner of the hound which finishes first 70 per cent of the aforesaid purse, and to the owner of the hound which finishes second 20 per cent of the aforesaid purse, and to the owner of the hound which finishes third 10 per cent of the aforesaid purse, and to each of the subscribers to each of said purses holding and presenting receipts bearing the numbers of the hounds finishing first, second and third, respectively, 70 per cent, 20 per cent and 10 per cent of all entry fees paid by the owners of hounds entered in said race and all subscriptions made to the race remaining after the payment of the purse aforesaid, and all expenses of said race, which the amount of said subscription receipts bear to the number of the hounds finishing first, second and third, respectively, bears to the whole amount of the said entry fees and subscriptions so remaining."
Counsel for respondent argue at length that payment of an entry fee by an owner of a race horse or dog for the purpose of competing with other owners similarly disposed for a purse to be awarded on the result of the race does not constitute a wager or bet. But this is beside the question. There is no allegation in plaintiff's bill that defendants will interfere with its dog racing merely because all owners pay entry fees and only those whose dogs win races participate in the purses awarded. The contention is that defendants will interfere with plaintiff's proposed activities in conducting, using and participating in the public subscription plan or system of raising funds and awarding purses, defraying expenses and awarding so-called "oversubscriptions" in connection with its races. The single question is whether the proposed use of this plan or system would, on the allegations appearing in the petition, be violative of any law or statute of this State.
Among the laws of which counsel for appellants say the plan or system in question would be violative is the provision with reference *809 to pool selling which appears in the third clause of section 4286, Revised Statutes 1929, and makes any person guilty of a felony "who in this state records or registers a bet or wager or sells pools upon the result of any trial or contest of skill, speed or power of endurance of man or beast, which is to be made or take place within or without this state."
[5] "Pool selling" is a term used by writers of authority to describe a form of gambling. [In re Opinion of the Justices,
[6, 7] In Funk Wagnall's New Standard Dictionary a bet is defined as "the risking of a certain thing or sum against another specified thing or sum on the issue of an uncertain event." Also, in Black's Law Dictionary a bet is defined as "an agreement between two or more persons that a sum of money or other valuable thing, to which all jointly contribute, shall become the sole property of *810
one or some of them on the happening in the future of an event at present uncertain, or according as a question disputed between them is settled in one way or the other." As said in Harris v. White,
"Bouvier defines a wager to be `a contract by which two parties or more agree that a certain sum of money or other thing shall be paid or delivered to one of them on the happening or not happening of a certain event.' This definition implies that there must be at least two parties to every wager in which one stands to win and the other to lose some valuable thing upon the certain result of a particular event. In such a case each party jeopardizes something, and each has the chance to win something."
From the foregoing definitions it seems clear that respondent's proposed public subscription plan or system of raising funds and awarding purses, defraying expenses and awarding "oversubscriptions" therefrom in connection with dog races embraces every essential element of pool selling denounced in the above quoted provision of Section 4286. The certain result is that three of the eight dogs, if that many be entered in the race, will participate in the purse and the others will not. The uncertain event is which dogs will participate. Each "subscriber" stands to win or lose money from or to the other by this uncertain event. The money "subscribed" constitutes the "pool," and whoever sells the subscription contracts in legal effect sells tickets to or shares in the pool. It is a common incident of pool selling that expenses be set aside from the total amount subscribed, and the nature of the scheme is essentially the same even though in effect it be stipulated that the seller of the pool shall also retain a part of the total amount so remaining. The amount thus retained would only affect the attractiveness of the scheme to subscribers, and that such would by no means be destroyed is fully demonstrated by plaintiff's allegation of fact that "unless it can conduct and supervise the said public subscription plan of creating and awarding purses, as aforesaid, the said races will not be sufficiently patronized by the public to conduct the said races without financial loss and the business of plaintiff will be destroyed and the said property of plaintiff will be wholly lost to plaintiff." *811 However ingenious the method of distributing "oversubscriptions" may be the essence of gambling plainly inheres.
[8] But counsel for respondent say that a subscription to a dog race is not a bet or wager, and that "a subscription, being legal in its incipiency, the manner of its subsequent disbursement cannot illegalize it." A bet is a bet by whatever name it may be called. Respondent's so-called "public subscription plan" is obviously a sham for the transaction of a business expressly forbidden by law, and as said in St. Louis Fair Assn. v. Carmody,
Appellants also contend that from the allegations of the petition the proposed business would be violative of other laws and statutes of this State, but for the purposes of this appeal it is unnecessary to rule thereon. Plaintiff's petition, for the reasons above mentioned, having failed to state a cause of action against defendants the judgment rendered is void and without effect. Entertaining this view of the case it becomes unnecessary for us to rule on appellant's first assignment of error.
The judgment is reversed. All concur.