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State ex rel. Sullivan v. Phoenix Sav. Bank & Trust Co.

Supreme Court of Arizona

November 8, 1948

STATE ex rel. SULLIVAN, Attorney General,
v.
PHOENIX SAV. BANK & TRUST CO. et al

Appeal from Superior Court, Maricopa County; Gordon Farley, Judge.

Reversed with directions.

John L. Sullivan, Atty. Gen., Evo De Concini, Atty. Gen., John W. Rood, Perry M. Ling, Chas. D. McCarty and Edward Jacobson, Asst. Attys. Gen., for appellant.

Stahl & Murphy, of Phoenix, for appellee Phoenix Sav. Bank & Trust Co.

Whitney, Ironside & Whitney and Leslie C. Hardy, all of Phoenix, for appellee Frank Pelosi.

LaPrade, Justice. Stanford, C. J., and Udall, J., concurring.

OPINION

LaPrade, Justice.

Page 1019

[68 Ariz. 44] This is an appeal from a judgment dismissing plaintiff's complaint after trial upon the merits. The action was brought by the State of Arizona upon the relation of the Attorney General against The Phoenix Savings Bank and Trust Co., a corporation, Frank Pelosi, and others. The action was designed to enjoin the use of certain premises situated at 21 Wall Street in the City of Phoenix for the purpose of conducting wagering or betting on the results of horse races, characterized in the complaint as "bookie" operations and designated as a public and common nuisance as defined by section 43-4603, A.C.A.1939. The evidence discloses and the court found that for more than a month prior to the filing of the complaint defendant Pelosi permitted a large number of persons to congregate daily within the building located upon the premises for the purpose of wagering and betting on the results of horse races conducted at tracks without the State of Arizona. Additional findings of fact were (1) that "* * * during said times defendant Pelosi there accepted from said persons wagers or bets upon the results of said horse races and there paid to said persons such amounts as were won by them as the result of such wagers or bets. That admittance to said building was effected through a door on the east side thereof which was attended by an employee of defendant Pelosi. The results of said horse races were received by defendant Pelosi within said building by telephone and such results were then and there announced by him. Defendant Pelosi maintained within said building for the convenience of his patrons chairs, tables, lights, and wallboards upon which were posted form sheets and scratch sheets which disclosed the entries by names of all horses running in said races, the names and weights of jockeys who would ride such horses, track conditions, past performances of horses, approximate betting odds, the result of said horse races, pari-mutuel prices paid upon each horse placing, first, second and third, and other information customarily supplied for the purpose of making wagers or bets upon the results of horse races."

(2) that on the same date the complaint seeking the injunction was filed there was filed in the justice court of West Phoenix Precinct a criminal complaint charging Pelosi with wagering and betting on horse [68 Ariz. 45] races as a bookmaker in violation of section 73-1607a, chapter 85, Session Laws 1945, (3) that thereafter on January 22nd an information was filed against defendant Pelosi and others charging them with wagering on the results of horse races as a bookmaker in violation of said section 73-1607a, (4) that no evidence was offered or received to prove that Pelosi had theretofore been charged with conducting the activities complained of other than the criminal proceedings just mentioned which were instituted on the same date. Defendant Pelosi affirmatively alleged that plaintiff had a plain, adequate, and speedy remedy at law and in support of that remedy invoked section 43-4603, supra, and chapter 85, Session Laws 1945 (section 73-1607a, supra). These sections read as follows:

"43-4603. 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 wilfully omits to perform any legal duty relating to the removal of a public nuisance, is guilty of a misdemeanor."

"73-1607a. Penalty. -- All forms of wagering or betting on the result of a horse-race or dog-race, except as provided by law, whether conducted in this state or elsewhere, shall be illegal. Any person directly or indirectly involved in such wagering or betting whether in placing or

Page 1020

making a bet or wager for himself or as a book-maker shall be guilty of ...


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