Weekly journal-miner., 1917-09-26
KNOCKOUT BLOW IS DEALT THE
 PAR| MUTUEL
JUDGE LYMAN OF PHOE- NIX HOLDS THAT DE- VICE VIOLATES STATES ANTI-GAMBLING STAT UTES, DISMISSES CASE.

| PHOENIX, Sept. 2l. - The pari
 mutuel received its death blow in
 Judge Lyman's court yesterday. In sustaining the demurrer to the com
 plaint. Judge Lyman gave judgment
 to the defendant in the injunction pro-
 ceedings instituted by C. D. Boyce
 versus the State Fair Commission
 whereby the plaintiff sought to re-
 strain and enjoin the commission from
 in any way interfering with, prohibit
 ing and preventing Boyce from carry
 ing out the terms of contract with
 the commission for the purpose of conducting horse race meetings and
 amusements with the exclusive privi-
 lege of operating the pari mutuef ma
 chine.
 The court held with the fair con-
 mission in its demurrer on the ground
 that the contract set out in the com
 plaint provided for public gambling
 and for the further reason that 1t pro
 vided for maintaining public nuis- ance.
 The legality of the contract by which Boyee was to make Phoenix a sport center, was not raised at this time.
 F. C. Struckmeyer, who represented the plaintiff, gave notice of appeal. The State was represented by Assist ant Attorney General Whitney and George Purdy Bullard appeared as amicus curae. Mr. Bullard who argu- ed at length declared that if the con- tract be carried out that every man and woman, every boy and girl who attended the State fair would be thrown directly into temptation.
 In the case of Mccall versus the State of Arizona the Supreme court held that Mccall was not guilty of carrying on gambling game. Nc Call, it will be recalled, was indicted for carrying on a gambling game for the use of the pari mutucl machine. On an agreed statement of facts the case went to the Supreme court, all three judges differing in their opinion. Judge Cunningham whote an opinion in which he stated that the statement of facts failed to show Mccall guilty of gambling. According to the opin- ion of Judge Ross the information was defective and Judge Franklin held that Mccall was guilty.
 The Boyce case IS different from the Mccall case in that Mccall was charged with operating pari mutuel machine without himself being in any way responsible for the horse race. The contract in the case before Judge Lyman yesterday contemplated the operation of the pari mutuel by the same person who promotes the race.
 The contract which has been nuli- fed was entered into between Homer R. Wood and C. NJ. Layton, then fair commissioners, and C. D. Boyce on April 7th of this year. The matter had been in negotiation for somS time and Governor Campbell having learned of it directed letter to Mir. Wood on the subject, stating that the execution of such a contract was not within the province of the commission whose duties except in the actual ad- of the fair were of routine character This letter was sent on April 4th and the receipt of it was acknowledged by the then secre- tary of the commission. Thomas D. on April 9th. The con tract was signed the following day.
 Thercupon the governor demanded the resignation of Mir. Wood. When it was not forthcoming. Governor Campbell declared his office vacant and appointed successor. MT. Lay ton rendered his resignation without request.
 The commission as it was subse- luently constituted declared that it would not recognize the contract and hen followed the injunction proceed ngs by Mir. Boyce.
 Under the terms of the contract 1t vas to run for five years unless earli- 1T abrogated by some violation of the aw by Mir. Boyce or unless the pari nutuel machines were pronounced unlawful by the court. The comfnis- ion was to have general direction of he fair grounds at all times. MT. 3oyce or his assignees were to turn 'ver to the State ten per cent of all admissions to the grounds and one 'cr cent of the registered business of he machines His own commissions or the operations of the machines ferc not to exceed five per cent of the cgistercd business.