J. F. ENGLE, EDWARD ROSENGREN, W. O. CREAMER and JAMES AARON, Appellants,
DONALD C. SCOTT, as City Manager of the City of Phoenix, and LOU HOLTZENDORFF, as Chief of Police of the City of Phoenix, a Municipal Corporation, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge. Judgment affirmed.
Messrs. Baker & Whitney and Mr. Lawrence L. Howe, for Appellant Engle.
Messrs. Lewkowitz & Wein, for Appellants Rosengern, Creamer and Aaron.
Mr. Hess Seaman, City Attorney, and Mr. William C. Fields, Assistant City Attorney, for Appellees.
[57 Ariz. 385] LOCKWOOD, C.J.
Roy R. Hislop, as city manager, and E. C. Moore, as chief of police of the city of Phoenix, brought suit in the superior court of Maricopa county against J. F. Engle, Edward Rosengren, W. O. Creamer and James Aaron, defendants, asking first that it be adjudged that defendant Engle, by and through his agents, employees or associates, was maintaining a public nuisance per se in the places described in the complaint, and that such nuisance is subject to summary abatement by plaintiffs under the ordinances of the city of Phoenix and the laws of the state of Arizona, and second, that each of the defendants and their agents be forever enjoined from keeping, occupying and maintaining horse race betting establishments of [57 Ariz. 386] the character described in the complaint at any place within the jurisdiction of the court. The prayer for relief was based upon the allegations that defendants were operating and maintaining establishments "where persons daily congregated for the purpose of making bets and wagers on horse races run in other states, such betting being made under the pari mutuel system of betting, said pari mutuel machines being located at the various tracks where the races are run in states other than the State of Arizona; that persons did daily congregate in said room for the purpose of making bets and wagers on horse races run in other states, which bets defendant J. F. Engle and his agents, employees or associates accepted and received, and after said races were run paid to the winners, if any, the amounts won by such persons," and that by so doing the defendants were maintaining a public nuisance per se, to-wit, a gaming house or place.
After the action was filed Hislop and Moore retired from their offices and Donald C. Scott and Lou Holtzendorff, their successors in office, were substituted as plaintiffs.
Defendants filed separate answers in which many defenses were raised. These answers are so voluminous that we do not quote them, but will consider the defenses set up thereby, in accordance with the legal propositions which they raise. Judgment was for plaintiff, and defendants have appealed.
The first, and the most important, question is whether establishments of the nature of those which the complaint alleges, and the answers admit defendants operate, are public nuisances per se, or, indeed, nuisances at all, in view of the fact that it was neither specifically alleged nor admitted that the acts charged interfered with the comfortable enjoyment of life and property by an entire community or neighborhood or [57 Ariz. 387] by a considerable number of persons. It is the claim of plaintiffs that an establishment of the kind described in the complaint, and admitted by the answers to exist, is a public nuisance per se, and that it is not necessary for the public authorities, in attempting to abate or enjoin the operation of such a nuisance, either to allege or prove that it interferes with the public enjoyment of life and property by the public or any portion thereof. It is contended on the other hand by defendants that this must be proved, and, therefore, must be alleged before it can be held that a nuisance of any character exists. The determination of this question is of considerable importance to the state of Arizona, as it has appeared before us in a number of cases in one form or another, and from the record in those cases, as well as in this, it cannot be doubted that until it be definitely settled whether these establishments are public nuisances per se, it is bound to recur again and again.
Section 43-4603, Arizona Code, 1939, which is identical with section 4693, Revised Code, 1928, defines public nuisances, and reads as follows:
"Public nuisance -- Maintaining -- Penalty. -- Anything which 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 by an entire community or neighborhood, or by any considerable
number of persons, or which unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a public nuisance, and is no less a nuisance because the extent of the annoyance or damage inflicted is unequal. Every person who maintains or commits any public nuisance, the punishment for which is not otherwise prescribed, or who ...