U. S. 148, 43 L. ed. 399, 19 Sup. Ct. Rep. 119.

The farthest limit to which the courts have gone in sustaining proceedings in equity to restrain criminal conduct is where under statutes which declare an act criminal and make the repetition of it a public nuisance and vest the courts with power to restrain it after conviction. It is doubtful if such a statute would be valid in this state under the provisions of our Constitution. Stat

utes of that character relate to the violation of the laws regulating or prohibiting the liquor traffic. Eilenbecker v. District Ct. 134 U. S. 31, 33 L. ed. 801, 10 Sup. Ct. Rep. 424; Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. 273; State v. Ehrlick, 65 W. Va. 700, 23 L.R.A. (N.S.) 691, 64 S. E. 935.

Second. A chancellor has no criminal jurisdiction. Something more than the threatened commission of an offense against the laws of the land is necessary to call into exercise the injunctive powers of the court. There must be some interference actual or threatened with property rights of a pecuniary nature. Re Debs, 158 U. S. 564, 39 L. ed. 1092, 15 Sup. Ct. Rep. 900.

The charge as made in the bill is of a criminal nature. The bill actually charges crime, but the crime charged does not touch the enjoy ment of property. The majority opinion, however, assumes that property rights are involved, viz., the right to the use of the race tracks, grounds, and buildings; but that is the defendant's property which his alleged conduct affects, if at all, and which is no injury to the rights of the public except as a moral or religious offense.

If there was material injury to others or the public in such use of the property, if by any process of reasoning betting on a horse race can be said to be use of property, then equity through its power to abate a nuisance has jurisdiction to abate and suppress the race track, and the adjudication of guiltiness of

a crime would be incidental; here it is primary.

Third. The bill in this case, stripped of all unnecessary words, charges the defendant Pompano Horse Club with two crimes: One a misdemeanor, the other a felony denounced by our statutes and sanctioned by penalties prescribed. The two offenses are "gambling" and "maintaining a place for the purpose of gambling." The latter is a felony.

Fourth. No statute exists in this state authorizing a court of chancery specifically to enjoin the commission of crimes. Sections 3223– 3227, inclusive, Revised General Statutes, provide for the abatement of nuisances such as are defined in § 5639, Revised General Statutes. That section in terms refers to §§ 5624, 5497, Revised General Statutes. Neither of these sections refers to § 5514, Revised General Statutes, defining the crime of betting "upon the result of any trial or contest of skill, speed or power or endurance of man or beast," although §§ 3223 to 3227 and § 5639, being chapter 7367, Acts of 1917, were enacted six years after chapter 6188 of 1911 was enacted and which was carried into the Revised General Statutes as § 5514.

Fifth. Section 5497 defines the offense of "vagrancy," and by § 5498 provides for its punishment as a

crime. Section 5624 defines "nuisances" and provides a statutory proceeding at law for their removal and suppression. Section 5639 provides that the persons who maintain the places as described in § 5624, or which are frequented by the persons described in § 5497, or who maintain a place where "games of chance are engaged in in violation of law or any place where any law of the state of Florida is violated," shall be deemed "guilty of a nuisance" and the place be declared a nuisance and such "persons, places, shall be abated and enjoined as provided in article 19, chapter 10, title 3, second division of these Revised General Statutes." That reference is to §§ 3223-3227, supra.

some prosecuting officer. The reason for this rule and that which denies to any private citizen the right to maintain the action is to avoid a multiplicity of suits. If the majority opinion is correct, then any citzen may bring an action for the same offense, and the wise rule against multiplicity of suits and subjecting a person to annoying litigation unnecessarily is violated by the statute. On the other hand, if the state as a party is precluded from maintaining more than one action upon the same cause, her Attorney General, county solicitor, or state attorney may be forestalled in the performance of their duty by some active and alert citizen who first preempts the state's name and binds it to an adjudication upon the case made by him. In such way both the criminal procedure and equitable relief may be frustrated and turned to

no purpose because the judgment of the court in the equitable proceeding is binding upon both parties and may, on the one hand, prevent a successful prosecution of the crime or, on the other, deprive the person charged of the right of jury trial.

Buford, J., dissenting:

In this case Mr. Chief Justice Ellis has prepared to be filed herein a statement of the grounds upon which he dissents from the majority opinion. The grounds as stated by Mr. Chief Justice Ellis are numbered by him from first to tenth, inclusive.

I concur in the views expressed by Mr. Chief Justice Ellis as set forth in the subdivisions of his statement marked second, third, fifth, sixth, seventh, eighth, ninth, and tenth, and therefore must dissent from the majority opinion.

In general as to racing being regarded as a game, within penal statutory provisions, see annotation in 45 A.L.R. 998 [Gaming, § 1]; and as to provisions declaring gaming transactions void and permitting recovery of losses, see page 1003 of that annotation. In some of the cases therein cited, as, for example, Wade v. Deming (1857) 9 Ind. 35, the facts indicated some sort of a clubbing or pooling arrangement, but the decisions turned on general grounds.

The annotation is not concerned with the general question of what constitutes a gambling device or contrivance, or a gambling place, within a statute. See in this connection, James v. State (1910) Okla. Crim. Rep. —, 33 L.R.A. (N.S.) 827, 113 Pac. 226, subsequent appeal in (1911) 4 Okla. Crim. Rep. 587, 34 L.R.A. (N.S.) 515, 140 Am. St. Rep. 693, 112 Pac. 944.

The decision of the reported case

(POMPANO HORSE CLUB V. STATE ante, 51) that the conducting of the sale of certificates under the "pari-mutuel" betting plan, as described therein, constituted engaging in a game of chance, and likewise gambling, is in accord with the weight of authority on this precise point.

A statute imposing a fine upon whoever should set up any gaming table, machine, or contrivance used in betting, or other game of chance, was held in Com. v. Simonds (1881) 79 Ky. 618, to have been violated by one who set up a contrivance known as "French pool," also called "Paris mutual." This was described as a small machine, containing the name. of each horse to be run in a particular race written or printed on the side, and printed numbers placed on the inside of the machine, which could be seen through holes in it, and to be used in this way: "The owner or operator sells the tickets for $5

each; they bear numbers corresponding with the number given the horse on the machine, and by turning a crank or screw attached to the machine the betters are shown at once the number of tickets sold on each horse, as each of said tickets is sold, so as to enable him to bet more intelligently and safely, and lessen the chances of disaster to himself. After the race is over, the machine is examined to see how many tickets have been sold, and those persons holding tickets on the winning horse get the amount of all the money received by the operator for all the tickets sold by him on all the horses that have run in the particular race, less 5 per cent commission on the pool, which the operator of the machine retains for his services."

But under a subsequently enacted statute, providing that it should not apply to persons selling combination or French pools on any regular race track during the races thereon, it was held in Grinstead v. Kirby (1908) 33 Ky. L. Rep. 287, 110 S. W. 247, that both the selling and the buying of such pools on a regular race track during the races thereon must be regarded as legalized. And see in this connection, Louisville Wehmhoff

V.

(1904) 116 Ky. 845, 79 S. W. 201, denying rehearing of (1903) 116 Ky. 812, 76 S. W. 876.

choice would be sold in the same way; also third choice, if there were any bidder for it; and all other horses in the race would be sold together as the field for one bid. The different purchasers would pay their money to the person carrying on the business, and would receive checks in return, on which would be marked the amount of the bid and the purchase made by him, and the total amount in the pool. Upon the result of the race being announced, all the money in the pool would be delivered to the person who had named or purchased the successful horse, less a commission of 5 per cent, which would be retained by the person or persons selling the pools." In upholding the state's power to prohibit the sale of "auction pools" altogether, or to regulate them by issuing licenses permitting such sales at approved race courses, it was said in State v. Williams (State v. Thompson) (1901) 160 Mo. 333, 54 L.R.A. 950, 83 Am. St. Rep. 468, 60 S. W. 1077, that it was perfectly clear that pool selling was gaming or gambling.

Various pooling schemes, including "auction pools," "combination pools," and "Paris mutuals," were regarded as games in People v. Weithoff (1883) 51 Mich. 203, 47 Am. Rep. 557, 16 N. W. 442 (opinion by Cooley, J.), affirming a conviction for keeping a gaming room where such pools were sold. The manner of conducting the "auction pools" was thus described: "A horse race being about to take place in some part of the United States, the person conducting the business of pool selling would give the names of the horses which were to participate in the race, and an auctioneer would ask what was offered for first choice, and the first choice would be sold to the highest bidder, and the person being the highest bidder would select his horse. Second

The purchase of certificates at a pooling booth, operated in connection. with a dog-race track, which certificates entitled the holders to shares in the "earnings" of the dogs in proportion to the "investments" (after the deduction of expenses, the operator of the booth retaining 10 per cent for his services), was held to be gambling, within a statute which denounced, as gambling, betting upon the result of any trial or contest of skill, speed, or power or endurance of man or beast, in Reinmiller v. State (1927) Fla., 111 So. 633.

Gambling on horse races by means of (betting books) French mutual pooling devices, auction pools, or any other device, has been expressly prohibited by statute in at least one state, Louisiana, the statute of that state having been construed in State v. Scheffield (1909) 123 La. 271, 48 So. 932, and State v. Gardner (1922) 151 La. 874, 92 So. 368 (as to bookmaking).

Stressing the point that the state of the odds on any horse was liable to be changed before the running of the

race, and that accordingly chance had a material influence in determining the result of the betting, the English court in Tollett v. Thomas (1871) L. R. 6 Q. B. (Eng.) 514, held that betting by means of a "pari-mutuel" machine constituted a game of chance.

Upon the ground that pools or bets on a horse trot were void, under a statute, it was held in Barker v. Mosher (1880) 60 N. H. 73, that an action Icould not be maintained to recover either the price of tickets bid off in a pool, or money voluntarily furnished by the pool seller to make up to the pool the price of tickets sold, but not taken or paid for by the bidder. The constitutionality of an act "for the better suppression of gambling," which prohibited and made criminal the selling of any pool or ticket whereby money might be won or lost upon any horse race not occurring in the state, was upheld in State v. Stripling (1897) 113 Ala. 120, 36 L.R.A. 81, 21 So. 409. And the selling of pools on horse races as a general proposition, without reference to any particular system of pools, has been regarded as gambling in numerous other cases, such as, for example, State v. Shanklin (1908) 51 Wash. 35, 97 Pac. 969. And see in this connection, Opinion of Justices (1906) 73 N. H. 625, 63 Atl. 505, 6 Ann. Cas. 689, and Lacey v. Palmer (Ex parte Lacy) (1896) 93 Va. 159, 31 L.R.A. 822, 57 Am. St. Rep. 795, 24 S. E. 930.

But in holding that the operation of a French pool or pari-mutuel machine, by which bets on horse races were registered, did not amount to conducting a "banking or percentage" game, which was denounced by statute, one of the judges in McCall v. State (1916) 18 Ariz. 408, 161 Pac. 893, Ann. Cas. 1918A, 168, said that the accused did not himself wager, or conduct any game whatever; and a concurring judge stressed the point that the proprietor, by means of the machine, merely held the pool and distributed it after the race to the winners, after retaining a percentage for their services, but observed, after quoting the Standard Dictionary defi

nition of "pari mutuel," that it described the game, rather than the machine, and that the game might well be played without any machine. A dissenting judge said that the parimutuel system of public betting on horse races, instead of lessening the evil sought to be prohibited, would only aggravate it to an alarming extent.

It was held by a divided court in James v. State (1885) 63 Md. 242, that a statute making unlawful the keeping of gambling places and tables was not violated by the sale of "auction," “mutual," and "combination" pools (which were all described).

And it was held in State v. Shaw (1888) 39 Minn. 153, 39 N. W. 305, 8 Am. Crim. Rep. 321, that boards and lists to be used in "auction pools" did not constitute gambling devices under the particular statute, which prohibited gaming tables "or any other gambling devices whatever," since no element of chance was involved in their use; although the court expressed the opinion that the persons betting on the races might be prosecuted for gambling under another section of the statute, and, further, that the place where the pools were conducted might constitute a common nuisance, and that its keepers might have been indicted under the common law for "keeping a common gaming house."

That a statutory provision exempting sellers of combination or French pools on any regular race track during the races thereon could not apply to the sale of pools at greyhound races, where the dogs were induced to run by means of an electrical hare, having been enacted only with reference to horse races, before any greyhound races of that sort were ever conducted, was decided in Erlanger Kennel Club v. Daugherty (1926) 213 Ky. 648, 281 S. W. 826.

As to the maintenance of a place for selling pools, at a race track, being a violation of a statute against keeping a common gaming house, see Swigart v. People (1895) 154 III. 284, 40 N. E. 432. E. W. H.