State Ex. Rel Trampe v. Multerer , 234 Wis. 50 ( 1939 )

In the action, commenced July 28, 1939, in the name of the state of Wisconsin, upon the relation of Charles W. Trampe, a private individual, upon leave first obtained from the court, pursuant to sec. 280.02, Stats., it was sought to enjoin the defendants, Albert Multerer, Marie Multerer, his wife, Edward F. Zrimsek and Marie Zrimsek, his wife, and each of them, from maintaining or permitting their certain premises to be used as a gambling house and from conducting thereon games of "bingo," on the ground that such games as theretofore and then conducted, constituted a public nuisance. It was alleged in substance in the complaint that the premises in question were known as Nos. 1118-1126 West North avenue; that the defendants Zrimsek had an equitable interest in the premises by virtue of an assignment of a land contract; that leave of the circuit court for Milwaukee county to bring the action had been obtained pursuant to the provisions of ch. 280, Stats.; that, upon information and belief, the defendants were then using and for a long time prior thereto had openly and notoriously used said premises for the purpose of conducting and carrying on the game of bingo, or similar games and other games of chance; that, upon information and belief, the premises constituted a common gambling resort; that great numbers of persons resorted to said premises for the purpose of gaming and gambling; that the defendants kept, continued, and maintained said premises as a gambling resort, to which great numbers of persons were permitted to resort for the purpose of gaming and gambling and to which persons did actually resort for such purposes, in violation of the laws of this state and to the injury of the public morals, welfare, and decency of the community in which said premises are located, and that said premises and the games conducted therein constitute and are a public nuisance, within the meaning of ch. 280, Stats. The defendants Zrimsek answered and admitted all of the allegations of the complaint except, (1) those which charged that the defendants had openly and notoriously used said premises for conducting and carrying on the game of bingo or similar games and other games of chance, and (2) those which charged that the said premises constituted a gambling resort and a public nuisance. They alleged that the premises consist of large public halls which are rented for meetings, weddings, parties, and other large social functions, and that various charitable, religious, and fraternal organizations had rented said premises and had conducted therein and had provided for their members and patrons entertainments and amusements, among which was a game commonly called bingo, the proceeds of which entertainments and amusements, including the game of bingo were used exclusively for either charitable, religious, or fraternal objectives and purposes. Trial was had to the court. By stipulation, the action was dismissed as to the defendants, Multerer. The trial court rendered an exhaustive written decision and thereafter made its findings of fact and conclusions of law. The facts found by the court are in accord with the undisputed facts and are not assailed. The court concluded in substance that bingo is a gambling game and violative of sec. 348.07, Stats.; that the defendants Zrimsek, in leasing a part of their premises and permitting the use thereof for gambling purposes, violated secs. 348.09 and 348.11, Stats.; that the operation of bingo games upon the premises constituted a public nuisance; that the use of the proceeds from bingo games for religious, charitable, or other worthy objectives did not render inapplicable the provisions of secs. 348.07, 348.09, and348.11, Stats.; that the plaintiff was entitled to an injunction, pursuant to the provisions of sec. 280.02, Stats., and that the plaintiff had no adequate remedy at law. Entry of judgment was accordingly ordered. From a judgment, entered November 2, 1939, perpetually restraining the use of the premises, or any part thereof, as a place for playing, conducting, or operating bingo games, and for costs, the defendants, Zrimsek, appealed. The following opinion was filed January 16, 1940: The facts are not in dispute. The defendants, Edward F. Zrimsek and Marie Zrimsek, his wife, hereinafter called the "defendants," are the owners of certain premises on West North avenue in the city of Milwaukee. The defendant, Edward F. Zrimsek, operates a tavern on the ground floor thereof. On the second floor is a large hall which for about a year prior to the commencement of the action was leased four or five nights each week and at least two afternoons each week to Auxiliary to Sons of Union Veterans, and St. Victoria Society, patriotic and charitable organizations. For about a year prior to the commencement of the action, those two societies had conducted games of bingo in the large hall, the proceeds of which were turned over to the patriotic or charitable objectives of those organizations. Bingo was played in the following manner: Every person who desired to play was required to pay an admission price upon entering the hall where the game was played. He was given a card, rectangular in shape, divided into twenty-five squares, each of which contained a number. The squares were arranged in vertical and horizontal columns containing five squares. The cards so distributed had different combinations of numbers on them. Numbers corresponding to the numbers on the various cards were placed in a container or drum, which was kept in a conspicuous place. The container was revolved until a number was caught upon a device designed for the random selection of a number. That number was removed from the container and called out to the players. Each of the players having this number upon his card placed a kernel of corn upon the square containing it. When a row of numbers on a card was completely filled out with kernels of corn (either vertically, horizontally, or diagonally) the player called out "bingo." His card was then checked by an attendant and if found to be correct he was declared the winner of that game. He was entitled to the prize that had been announced just prior to the commencement of that particular game. The price of admission was either twenty-five or thirty-five cents, depending upon the day when the game was played and the organization sponsoring the game. The admission price entitled a patron to a bingo card which gave him the opportunity to play a fixed number of games. Additional bingo cards might be purchased at five and ten cents each, so that a player might play as many cards as he desired. As many as ten cards were often played by patrons. No one could play who had not paid the admission price. The prizes, according to the evidence, varied from $2.50 to $165 per game. To the winner a certificate was given which was payable at the bar of the tavern. Ordinarily the winners made purchases at the bar although it was not necessary to do so. If two or more players, on the calling out of a certain number, filled out a row on their cards, the prize was divided and certificates issued to them for a proportional part of the prize. In addition to the chance to win at bingo, a door prize amounting to $1 was given away at each afternoon or evening session. That prize was awarded by lot. The testimony showed that at times there were as many as one thousand people playing. One of the lady managers testified that "we must have seven hundred." The defendant, Edward F. Zrimsek, testified that something like $1,600 to $2,000 was paid out by him each week in redeeming prize certificates. Children were not permitted to purchase admission tickets but were admitted if accompanied by their parents and were permitted to play bingo in case their parents purchased cards for them. Conspicuous signs advertising that "bingo" was played there, and that the public was invited to play, were displayed in the ground-floor windows of the premises. The organizations, from time to time, redeemed or repaid to the defendant, Edward F. Zrimsek, the amounts paid out by him to redeem the prize certificates.

Upon the opening of the trial and the swearing of a witness, the defendant interposed a demurrer ore tenus, asserting that the complaint did not state a cause of action. The court took the motion under advisement, and pending its decision thereon, permitted the trial to proceed. Later on, the motion was denied. The defendants contend that their motion should have been granted and that the court erred in denying it. While the complaint might have been somewhat more specific in its allegations, we think it sufficiently charged that bingo was gambling; that the game of bingo had been conducted upon the premises for a considerable period of time; that the premises constituted a gambling resort and was a public nuisance. In our opinion, no error was committed by the trial court in overruling the demurrer oretenus.

The defendants next contend that bingo was not gambling as it was played upon the defendants' premises and was not prohibited by the statutes of this state. Secs. 348.07,348.09, and 348.11, Stats. This contention is grounded upon the fact that the games were conducted for the purpose of raising funds for charitable and patriotic purposes, and, therefore, there was lacking in them any element of private gain. It is asserted that our statutes prohibiting gambling were never intended to interfere with or outlaw the custom of raising funds in that manner, by religious, charitable, social, or political organizations. It is conceded by the defendants that the term "gamble" is sufficiently broad to embrace the game of bingo if played for money or prizes and for purposes other than those of raising money for charitable or patriotic purposes.

We have no doubt that bingo, as played for about a year upon the defendants' premises, was a gambling game and was a lottery. In the very recent case of State ex rel. Cowiev. La Crosse Theaters Co. 232 Wis. 153, 158, 161, 162,286 N.W. 707, it was held that "Bank Night," as it was alleged to have been operated, constituted a lottery. It was there said that "a lottery involves three elements. There must be a prize, chance, and a consideration." What was said there was in accord with the universal holdings of the courts. In the playing of bingo there obviously was a consideration. The admission price included one bingo card. Other cards could be purchased and were often purchased by patrons who desired to play more than one card. Playing, of course, involved a chance. Only a small percentage of the patrons won a prize and all of the others lost their money. There were prizes ranging from $2.50 to $165. The total prizes amounted to $1,600 to $2,000 each week. Clearly, bingo as played upon the premises was a lottery, and was played, in violation of the statutes of this state. Sec. 348.01, Stats. Sec. 24, art. IV, of our constitution provides:

"The legislature shall never authorize any lottery. . . ." That is a strong declaration of the public policy of this state. Similar games have been considered by other courts. Such courts have all held that such games when played for prizes are gambling. In People v. Welch, 269 Mich. 449,257 N.W. 859, a game called "beano" was considered. It was held to be a lottery. In United-Detroit Theaters Corp. v.Colonial Theatrical Enterprise, Inc., 280 Mich. 425,273 N.W. 756, a similar game called "screeno" was considered and held to be a lottery. Creash v. State, 131 Fla. 111,179 So. 149, was a criminal prosecution in which a game called "bingo" was considered, which also involved a slight element of skill. People v. Babdaty, 139 Cal.App. Supp. 791, 30 P.2d 634, involved a similar game called "tango."

The contention that bingo when conducted for the purpose of raising funds for charitable or patriotic purposes is not gambling and that such a game, when so played, was never intended to be within the prohibition of the constitution or the statutes, needs little discussion because so obviously without merit. No exception of that nature is found either in the constitution or the statutes.

In Seattle v. Chin Let, 19 Wash. 38, 40, 52 P. 324, the defendant there was charged with violating a city ordinance which prohibited lotteries. The defendant contended that the ordinance was invalid because in conflict with a statute which exempted "lotteries for charitable purposes." The court held that the exception contained in the statute was unconstitutional because in conflict with the state constitution which provided that "the legislature shall never authorize any lottery." The court said:

"The language of the constitution is mandatory and the provision is self-executing. The question naturally suggests itself, if lotteries for charitable purposes may be lawfully conducted and permitted, why may not lotteries for any other purpose? We think that the constitutional provision admits of no exception in favor of lotteries for charitable purposes or for any other purpose."

In Adams v. Antonio (Tex.Civ.App.), 88 S.W.2d 503,506, it was contended that the machines there involved should not be held to be gambling devices prohibited by law but rather lawful coin-vending machines, because they were subject to a tax and the revenues received as taxes were badly needed by the state. The court rejected that contention and said:

"It may be conceded that as a result of the recent depression the government is badly in need of revenue, but it is sufficient to say that we have not yet reached the stage where the state is granting concessions to individuals to violate the law in return for revenue with which to support the government."

In Gimbel v. Peabody, 114 N.J. Law, 574, 178 A. 62, it was held that a statute which purported to authorize dog racing under the pari-mutuel system, and which apparently was enacted to relieve a financial emergency created by the depression, and to provide funds needed by the state, was unconstitutional because violative of art. IV, sec. VII, subd. 2, N. J. S. A. Const., which prohibited the legislature from authorizing a lottery, pool selling, bookmaking, or gambling of any kind.

If a state or its municipalities may not be authorized by its legislature to conduct gambling and lotteries for their benefit, it seems clear that religious or charitable organizations could not be so authorized, in the face of a constitutional provision like ours.

The defendants further contend that the playing of bingo upon the premises, as it was continuously played for about a year, did not constitute a public nuisance. A similar contention was made in the La Crosse Theaters Co. Case, supra. It was there said that "every place where a public statute is openly, publicly, repeatedly, continuously, persistently, and intentionally violated, is a public nuisance." (Citing cases.) It was there held that the maintenance of a lottery is a violation of the public policy of this state as declared by its constitution and its criminal statutes. In view of the exhaustive consideration so recently given to a like contention, we see no point in further discussing the matter, which could be nothing more than a repetition of all or a part of what was said there. Under the rule of the Bank Night Case we have no doubt that the game of bingo, as conducted for over a year in the defendants' premises, was a lottery and was properly found by the trial court to be a public nuisance.

The defendants finally contend that the plaintiff had an adequate remedy at law by instituting criminal prosecutions and therefore equity should not have been invoked. A similar contention was fully considered in the La Crosse TheatersCo. Case, supra. It was there said (pp. 161, 162):

"The proposition as to the power of equity to abate public nuisances is stated in 5 Pomeroy, Eq. Jur. (2d ed.) § 1893, where it is said: `Wherever a public nuisance is shown, equity must enjoin it at the suit of the government. Every place where a public statute is openly, publicly, repeatedly, continuously, persistently, and intentionally violated, is a public nuisance.'"

It further said:

"While most of the cases supporting abatement of public nuisances involve acts declared such nuisances by statute, abatability as a nuisance does not depend on statutory declaration, but abatement lies if the thing in absence of a statutory declaration is in fact a public nuisance."

And again:

"It is the fact of being a public nuisance that invokes and supports the remedy by abatement."

The holding in that case is in accord with the holdings of many courts throughout the country as appears from the cases cited in the opinion and also the following cases: Stateex rel. Bailes v. Guardian Realty Co. (1939) 237 Ala. 201,186 So. 168; Garvey v. McNulty, 270 Mass. 260,170 N.E. 58; State ex rel. Dawson v. Anthony Fair Asso. 89 Kan. 238,131 P. 626; State ex rel. Igoe v. Joynt, 341 Mo. 788,110 S.W.2d 737.

We therefore conclude that the game of bingo, as played upon the defendants' premises, was gambling; that continuously playing and permitting it to be played upon the defendants' premises for about a year, constituted a public nuisance, and that the abatement of such games as a public nuisance was authorized by ch. 280, Stats.

By the Court. — Judgment affirmed.

A motion for a rehearing was denied, with $25 costs, on March 12, 1940.