HEYNE, City Manager, et al.
LOGES et al
Appeal from Superior Court, Maricopa County; Frank E. Thomas, Judge.
Consolidated actions by Roy J. Heyne, City Manager of the City of Phoenix and James T. Duane, Chief of Police of City of Phoenix, against Joe Loges, Wm. Cramer, Pete Anderson, Robert Brown and Frank Pelosi, to enjoin use of rented premises as a common gambling house. From judgments dismissing the complaints, plaintiffs appeal.
Judgments reversed with directions.
Jack Choisser, City Atty., and Howard W. Gibbons, Asst. City Atty., both of Phoenix, for appellants.
Frank W. Beer and Leslie C. Hardy, both of Phoenix, for appellees.
Stanford, Justice. Udall, Phelps and DeConcini, JJ., concur. LaPrade, C. J., not participating.
Five separate civil complaints were filed in the superior court of Maricopa County against the five different individuals (appellees) named above. The complaints alleged the operating and maintaining the business of taking and accepting bets upon the result of horse races run in states other than Arizona and the paying of wagers to the winners. Except for the location of the premises, the complaints were identical in their allegations.
Each complaint alleged the conducting and maintaining of establishments by the individual defendants at which bets and wagers were taken upon the result of horse races run in other states was a public nuisance and further constituted a public nuisance per se. The prayer of the complaints asked that each establishment be declared a gaming or gambling house and therefore a nuisance per se, and that the defendants be restrained and enjoined from maintaining and conducting such betting establishments at the premises described.
The superior court issued an order to show cause in each case and the matters were set for hearing. Defendants' first defense was to dismiss the plaintiffs' complaints for the reason and on the grounds that they failed to state a claim against the defendants on which the relief prayed for [68 Ariz. 311] could be granted; and further answering admitted the use of the premises described in the complaints, but denied that they occupied them in any manner that would constitute a public nuisance per se, or any nuisance whatsoever; that at each of the premises the defendants had formed a social club having for its purpose the entertainment and social enjoyment of its members and limiting the use of said club and its facilities to its members. They further answered by saying "That said club is conducted at all times in all respects as other similar clubs and social organizations are maintained, and used and conducted for recreational purposes within the city of Phoenix."
The cases were consolidated for trial and at the close of the testimony and arguments the trial court took the matter under advisement, and later by judgment it granted appellees' motion to dismiss in each of the five cases. The instant consolidated appeal followed.
The appellants submit but one assignment of error, but it is the basis for five propositions of law, all of which we quote:
"Assignment of Error
"I. The trial court erred in dismissing plaintiffs' complaint, as it should have found that a nuisance per se existed on the premises as described in the complaints, and ...