The San Francisco call., 1899-05-10


lief IN this action from a court of
equity. The fact being in doubt, the
injunction heretofore issued at the re-
quest of plaintiff was dissolved until
trial could be had.
That a suitor in court of equity
must enter with "clean hands, ano
that he must show irreparable dam
age are primary rules of equity. One
who is committing a public offense
within house or other inClOsure can
not procure an injunction to restrain
peace officers from entering his house
TO arrest him, though their method of
entering may not be authorized by
law; nor may one who is fostering
and protecting criminals within his
dwelling. or upon his premises, ask a
court of equity to stay the breaking
in of the police, even though such
mode of entry be in excess of their
legal power.
The trial of the case, occupying
eleven days. was devoted mainly to the
determination of the good faith of the
plaintiff.
The ordinance prohibiting bookmak-
ing and wagering upon horse and dog
races was passed March 13, 1899 The
answer of defendants alleges that up
to the 18th day of March, 1899, plain
tAbiL COiituCleu us race meetings III a
quiet and orderly manner at its race
track, but that after said date 1t
conducted the same in violation of
law, and particularly in violation of
order No. ia (second series) passed by
the Board of Supervisors of the city
and county of San Francisco" 1t is
also alleged that plaintiff sold TO
divers persons the privilege of sell
ing pools upon races by horses upon
said track, and making books and bets
and wagers upon such horses con-
testing or TO contest upon said track"
The evidence shows that on the day
after the passage of the ordinance the
plaintiff Cancelled the boOkmaking and
pool-selling privileges upon its track,
returned the purchase money of such
privileges to the purchasers, and has
not since then sold any of such privi-
leges or licensed the making of books
or selling of pools upon its premises.
1t would be sufficient for the purposes
of defendants case to show that plain
tiff permitted a violation of the ordi-
nance; but in the thousand pages of
testimony there is absolutely nothing
which proves the making of books or
wagers upon the premises of plaintiff
after the 14th day of March, 1899. Sew
eral arrests were made by the police
on the 14th. 18th and 18th days of
March; but. except in the cases of
those arrested on the 14th. the testi-
mony is entirely insufficient to estao-
lish any guilty act by the parties ar
rested; and as to the acts committed
on the 14th, the evidence is not entire
ly satisfactory But even If there
were some illegal acts committed, IL
must appear that such acts were COM
mitted with the permission or upon the
sufferance of the plaintiff before it
can be charged with bad faith.
On the other hand, it affirmatively
appears that at the time of filing it's
bill in equity the plaintiff had OBJ
served the law. Its directors have sig
nified their intention to respect it, and
its manager, TO whom by resolution of
its board of directors is entrusted the
authority to grant, refuse and with
draw privileges and licenses upon the
racecourse, testified that no bookmak-
ing, pool-selling or other form of
wagering would be permitted or suf-
fered upon the premises of plaintiff
while the law existed.
The charge that a suitor in equity is
not pure of conscience concerning the
matter in dispute must be proved be-
fore he can be expelled from court,
and that proof is wanting in this case.
Though ii is a matter of common
knowledge that gambling is an Incl
dent of racing as carried on in this
State, the court cannot indulge in the
presumption that it is a necessary in
Cident; nor can the court presume that
because the plaintiff conducts races it
will violate the order of the Board of
Supervisors prohibiting wagering.
The good faith of plaintiff respecting
Ia ordinance ba1rir1p baey1 aSta bIieba3
it is entitled to enter this court and
pray for relief.
Being in court, plaintiff complains
that defendants, in violation of law
and against the will of plaintiff, en-
tered its premises and threaten to
continue so to do; and that such en-
try has caused plaintiff irreparable in
jury.
1t appears that upon some of the
days mentioned in the complaint de-
PENDANTS entered in opposition to the
wish of plaintiff, without any warrant
or other process of law, and upon one
day they prepared to break open the
gates with an ak. The answer asserts
that they will continue to enter as they
have entered and for the same pur-
poses.
The proof is sufficient to show the
udIndSe 10 De lrreparaDle in its nature.
The defendants are peace officers and
cannot be restrained from performing
their duties; they have a right to enter
the premises of plaintiff without it's
consent in the performance of their
duties and in the manner provided by
law, but not otherwise
Counsel for plaintiff vigorously at
tackled the validity of order No 174.
known as the "anti-bookmaking ordi-
nance upon the ground that no COM
petent proof of it's passage was adj
duced; but the determination of that
question not being necessary in the de-
termination Of the cause the ordinance
should not be questioned in this deci-
sion.
The defendants are, therefore. re-
strained from entering the premises of
plaintiff without its consent, excent
in the manner provided by law. and
while engaged in the performance of
their duties as police officers of the
city and county of San Francisco
Let findings be prepared accordinelv
and judgment be entered in favor Of
plaintiff for permanent Injunction in
accordance herewith and for costs.
Dated May 9, 1899.
FRANK ]. MURASKY, Judge.
Another phase of the fight to DESTROY
the traffic of the gamblers was dis
played in the Police Court, where JUS
tice of the Peace Groezinger presides.
GroeZinger did as was expected of him,