ORLOFF v. LOS ANGELES TURF CLUB

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District Court of Appeal, Second District, Division 3, California.

ORLOFF v. LOS ANGELES TURF CLUB, Inc.

Civ. 16704.

Decided: August 12, 1949

William Katz, Los Angeles, for appellant. Victor Ford Collins, Los Angeles, for respondents. Freston & Files, Los Angeles, amici curiae for respondents.

Plaintiff alleges that during the year 1946 he was wrongfully ejected twice from Santa Anita Park, operated by Los Angeles Turf Club, Inc. He seeks an injunction to protect his claimed right to attend the races, to lay bets on the horses and watch them run. He alleges that he has at all times conducted and comported himself in a proper manner, has not been under the influence of liquor or guilty of boisterous conduct, that he is not a person of lewd or immoral character, but upon the contrary is a property owner and taxpayer, operating a lawful business. The case was before the Supreme Court in 30 Cal.2d 110, 180 P.2d 321, 171 A.L.R. 913, following a judgment on demurrer, and upon the facts alleged plaintiff was held entitled to the injunction which he craves. Defendant answered, denied the allegations of the complaint with respect to plaintiff's good character and alleged that he is and long has been engaged in unlawful wagering, gambling and betting in the county of Los Angeles, and that by reason of such activities he is well known as an undesirable person whose conduct is detrimental to racing and the public welfare, and that he is a man of immoral character. It was also alleged that he had conducted unlawful bookmaking at the Park in January and February, 1946, and had been ejected in 1940 for bookmaking. It was not denied that defendant intends to exclude plaintiff from the Park in the future. The court found that plaintiff is and long has been engaged in unlawful gambling in the county of Los Angeles, and that his unlawful activities are well known; that he has been convicted seven times of bookmaking, illegal gambling and similar offenses and has a reputation as a bookmaker and illegal gambler, and of being a man of immoral character, and that he is ‘a known undesirable and is a person guilty of conduct detrimental to racing and to the public welfare.’

It is made unlawful by section 53 of the Civil Code to refuse admittance to a race course, etc. of any one over 21 years of age who has a ticket or tenders the price of one, unless such person is under the influence of liquor, guilty of boisterous conduct or is of lewd or immoral character. The California Horse Racing Board has jurisdiction and supervision over licensed horse racing, Business & Professions Code, sec. 19420, and authority under section 19561 of the Code to prescribe rules and regulations with respect to the conduct of licensed gambling at horse racing tracks. One of the Board's rules requires such associations to properly police their grounds and to eject therefrom ‘known undesirables, touts, persons under suspicion or ruled off, persons of lewd or immoral character, and persons guilty of boisterous or disorderly conduct or other conduct detrimental to racing or the public welfare.’

Defendant contends, and the court found: ‘That said act (Horse Racing Act) is subsequent to and supersedes the provisions of sections 50, 52 and 53 of the Civil Code.’ The meaning of this is not at all clear. We suppose the point is that the Board is authorized to make rules under which persons may be excluded from race tracks for reasons other than those specified in section 53. To this extent the ambiguous finding is correct. The power to prescribe rules, regulations and conditions governing the conduct of horse races where there is wagering was upheld in Sandstrom v. California Horse Racing Board, 31 Cal.2d 401, 413, 189 P.2d 17, 3 A.L.R.2d 90. There is a discussion in the briefs as to the effect of the finding that plaintiff is ‘a known undesirable and is a person guilty of conduct detrimental to racing and to the public welfare.’ Plaintiff in his closing brief contends that the terms, ‘known undesirables' and ‘persons guilty of * * * conduct detrimental to racing’ as used in the rule, are too vague and indefinite to be given effect as limitations upon his statutory right. It is said that the operators of a track might arbitrarily decide that any person is a known undesirable and eject him from the track for no valid reason. Defendant contends that it is the sole judge in such matters. This would be an important point for decision if the judgment rested upon a finding that plaintiff was a known undesirable, but it does not. The findings as a whole show only that the learned trial judge was of the opinion that a known gambler and bookmaker falls within the ban of the rule as a ‘known undesirable’ and person ‘guilty of conduct detrimental to racing.’ The judgment is based upon the entire facts found, and not upon any mere descriptive label which the court believed to be justified by the facts. We note in this connection that appellant does not make any contention that the term ‘person of lewd or immoral character’ is so vague as to render the exception of section 53 void for uncertainty nor do we think such a contention could be successfully maintained. One of the most common requirements for the enjoyment of privileges extended by law is that the applicant submit evidence that he possesses a good moral character. The validity of such requirements is self evident.

The court did not find specifically that plaintiff is a man of immoral character. No point is made of this omission on the appeal nor was it called to the court's attention on a motion for new trial. We think it is not fatal to the judgment. It was incumbent upon plaintiff to allege and prove facts which would entitle him to the rights and privileges guaranteed by section 53 of the Civil Code. He relies entirely upon that section and makes no claim that he has a constitutional right to attend horse races conducted by defendant and lay wagers thereon. He was seeking an injunction to enforce rights and privileges to which he would be entitled only by virtue of section 53. This section was enacted under the police power of the State and creates rights which did not exist at common law. Greenberg v. Western Turf Ass'n, 140 Cal. 357, 361, 73 P. 1050; Id., 148 Cal. 126, 82 P. 684, 113 Am.St.Rep. 216, affirmed 204 U.S. 359, 27 S.Ct. 384, 51 L.Ed. 520. Plaintiff in claiming the benefits that flow from the statute must accept the limitations which it imposes. He does not, and clearly could not reasonably claim that these limitations unconstitutionally discriminate against him with respect to a claimed right which is not extended by the statute and which does not exist otherwise. Ison v. Western Vegetable Distributors, 48 Ariz. 104, 59 P.2d 649, 655; Wilmont v. City of South Bend, 221 Ind. 538, 48 N.E.2d 649, 650; Becton v. Dublin, Tex.Civ.App., 163 S.W.2d 907, 910; Atkins v. Hertz Drivurself Stations, 237 App.Div. 31, 260 N.Y.S. 783, 785; Frazier v. Elmore, 180 Tenn. 232, 173 S.W.2d 563, 566. See also Gregory v. Hecke, 73 Cal.App. 268, 284, 238 P. 787; County of Sacramento v. City of Sacramento, 75 Cal.App.2d 436, 447–449, 171 P.2d 447 and cases there cited.

Accordingly plaintiff alleged that he conducted himself properly, was not intoxicated or boisterous upon either of the occasions when he was ejected from the grounds, and that he is a man of good moral character. The burden was upon him to prove these allegations. This he failed to do. The court found to the contrary, as already noticed. The finding that he is a person guilty of conduct detrimental to the public welfare would appear to have been intended by the court as a finding that he is of immoral character. One of the accepted definitions of immoral is ‘contrary to good order or public welfare; inimical to the rights or common interests of others: a legal and commercial sense.’ Century Dictionary. Warkentin v. Kleinwachter, 166 Okl. 218, 27 P.2d 160, 163; Jones v. Dannenberg Co., 112 Ga. 426, 37 S.E. 729, 731, 52 L.R.A. 271; Exchange Nat. Bank v. Henderson, 139 Ga. 260, 77 S.E. 36, 38, 51 L.R.A.,N.S., 549; Schuman v. Pickert, 277 Mich. 225, 269 N.W. 152, 154; People v. Dever, 242 Ill.App. 1, 4; 42 C.J.S., Immoral, page 395. The determination as to the morality of plaintiff's conduct involved considerably more than the application of definitions, but the one quoted fits the business of bookmaking. We need not inquire further into the sufficiency of the findings. Their sufficiency is not questioned, and, as will appear in our further discussion, the conclusion that plaintiff is a person of immoral character, within the meaning of section 53 of the Civil Code, necessarily follows from the findings which were made, since, as we shall see, one who engages in the business of bookmaking is, in a legal sense, a person of immoral character. A specific finding of the ultimate fact drawn from the specific facts found was unnecessary. Shepard v. Yale, 94 Cal.App. 104, 107, 270 P. 742; Horsman v. Maden, 69 Cal.App.2d 11, 16, 157 P.2d 882; 24 Cal.Jur., sec. 207, p. 974.

It was proved that between 1929 and 1939 plaintiff was adjudged guilty of at least seven offenses consisting of forms of bookmaking and gambling. There was testimony by police officers that he is known as a bookmaker and gambler, and also testimony that he is known as a former bookmaker, but is also presently known as a gambler. One police officer testified that plaintiff operates a cafe known as the Kiru, and that this is known as a congregating place for professional gamblers and bookmakers. The opinions expressed as to the reputation of Kiru's were based upon reports of police officers and statements of bookmakers to the witnesses. Arrests have been made there for such things as possession of lottery tickets and for suspicion of bookmaking. There was testimony that at Santa Anita Park plaintiff had been seen talking to people with criminal records.

The principal question, which is but lightly touched upon in the briefs, is whether there was substantial evidence to justify the implied finding that plaintiff is a person of immoral character. A great many definitions are to be found of ‘moral,’ ‘immoral,’ ‘immorality,’ and ‘moral turpitude.’ Strictly speaking, and as morality is frequently defined, any form of gambling is immoral. The meaning of ‘immoral’ as applied to character and as used in the statute, however, may not be ascertained by resort to the definitions of lexicographers. As we shall see, to do so would probably result in giving an effect to section 53 of the Civil Code which was not intended by the legislature.

Conviction of a criminal offense does not necessarily prove that the offender is a person of immoral character. Conduct which involves moral turpitude, whether it be criminal or not, may, of course, show an absence of good moral character. Plaintiff's conduct, as evidenced by his convictions, must be viewed in two aspects. The judgments should be considered, first, only as proof of the nature of the conduct that led to the prosecutions. In determining whether the several offenses involved moral turpitude we must look beyond the judgments to the proscribed acts themselves, the purpose in declaring them to constitute offenses, and the possible consequences of persistent and widespread violations of the law. Our first inquiry, then, is whether the business of accepting bets on horse races under conditions which do not render it lawful is immoral. The judgments should also be considered in reference to the question whether repeated convictions of offenses, wilfully committed, prove plaintiff to be a person of immoral character.

There is a great diversity of opinion as to whether gambling in all forms is immoral per se. Any discussion among several persons might as readily result in disagreement as in agreement on the point. It would be easy to lose sight of the legal questions involved if we should endeavor to find a basis in morals for permitting gambling within a race track enclosure and forbidding it elsewhere. We have no such intangible question, although it is necessary to point out the distinction between legal betting and illegal bookmaking.

Those who engage in pari-mutuel betting within race track enclosures do not thereby become persons of immoral character within the special meaning of section 53 of the Civil Code. Manifestly, pari-mutuel betting has been provided for their enjoyment, and with respect to the question now before us, lawful gambling by such persons is not a form of immorality for which they may be excluded from the tracks. Our concern is with the morality of unrestricted and widespread gambling which the business of bookmaking brings about, and which is forbidden by law. The first question is whether bookmaking is malum in se and well as malum prohibitum. We have reached the conclusion that it is malum in se. In so doing we distinguish between legal betting on horse races which, as we have seen, is not immoral in a legal sense, and illegal bookmaking which we hold to be malum in se, independently of its being also malum prohibitum.

In determining whether bookmaking is an immoral practice and a bookmaker is to be deemed a person of immoral character we must look beyond the nature of the act of mere betting on horse races to the purpose of the legislation which prohibits unrestricted betting. It will be seen that the law draws a distinction between a limited amount and an unlimited amount of betting on horse races. In medicine the same sort of distinction is drawn between small and large doses of strychnine, but for reasons which are not at all obscure. Illegality may be and frequently is based upon the circumstances under which an act is committed and not solely upon the nature of the act. The legislation on the subject of betting on horse races expresses the policy of the state. This appears to be that there is an insufficient amount of evil in pari-mutuel betting within the enclosures of race courses and under the supervision of racing associations to require its being made unlawful. Whether limited gambling was legalized upon the theory that only those who could afford to lose would patronize the tracks we would not undertake to say. It is true, however, that a comparatively small percentage of the entire population of the state attend the races. Those who do not attend are prohibited from placing their bets elsewhere. Presumably this is for their own protection. It may be inferred that although a limited amount of betting was allowed, unlimited and unsupervised betting was forbidden for the reason that too much harm would result if the public at large should be allowed to practice this form of gambling, without regard to the conditions and circumstances of those who might be attracted to it. This is not an uncommon basis for discriminatory legislation. Although a single act may not be deemed so harmful as to require that it be prohibited, frequent repetitions of the act, especially if carried on as a business, may result in such widespread detriment as to justify prohibitive legislation. We are not confronted with the question whether betting illegally on the races is immoral per se. However, those who make a practice of it are consistent violators of the law. There is no occasion here for a comparison of their culpability with that of bookmakers. But they clearly cannot justify what they do upon the ground that in the eyes of the law legalized betting is not immoral. Much less can a bookmaker lay claim to a good moral character for this reason.

We must bear in mind that casual conduct is not a true index to the ingrained qualities that go to make up character. A man's character is to be determined by the propensities which abide with him and which form the pattern of his life. The practice of unlawful bookmaking is generally considered to be pernicious and evil. It is notorious for the low character of the people who engage in it as a business. It encourages violations of law by persons who are otherwise law abiding and stimulates gambling among those who cannot afford to lose. It ensnares little people to do the work of the large operators, who remain under cover. It tends to breed the types of corruption that always develop to a greater or less extent wherever gambling or other forms of vice are conducted as a business. It has been outlawed as a practice inimical to the public welfare and has been made a felony. All these considerations lead to the conclusion that one who engages in unlawful bookmaking as a business cannot with any show of reason maintain that he is following a moral pursuit or is possessed of a good moral character.

Moreover, the record of his criminal convictions supports the inference that for many years plaintiff made a business of violating the law. A decent respect for the law is certainly one of the elements of good moral character. People v. One 1940 Chrysler Convertible Coupe, 48 Cal.App.2d 546, 120 P.2d 117. Wilful evasion and violation of law for personal gain involves moral turpitude. In re Hatch, 10 Cal.2d 147, 73 P.2d 885. Not only did plaintiff persistently violate the law for personal gain but, as we have seen, the acts which constituted the violations involved moral turpitude.

The evidence was clearly sufficient to prove that for a period of ten years, at least, plaintiff was a person of immoral character. When this was established, the burden was cast upon him to prove that he had accomplished a rehabilitation and change of character. It was for the trial court to determine whether he had foresworn illegal gambling and evil associations and acquired a genuine respect for the law. The evidence respecting his reputation as a bookmaker and gambler, and that he has been seen associating at the tracks with persons having criminal records, as well as the testimony that he tolerates the presence of gamblers and bookmakers in his cafe, all tended in some degree to disprove his claim that he had given up his former activities and associations. The fact that he has been engaged in legitimate businesses for several years did not prove that he had changed his character. The evidence along this line did tend to prove, however, that he has prospered. We cannot say that the evidence as a whole was insufficient to justify the conclusion that plaintiff at the times when he was ejected from Santa Anita Park was a person of immoral character.

Plaintiff argues the question of the sufficiency of the evidence upon the theory that the court should not have considered his many convictions of bookmaking and related activities, and that it was error to admit such evidence over his objection. Two grounds of objection were urged, namely, that evidence of specific wrongful acts was not admissible to prove his bad character, and that his convictions were so remote to the date of trial as to furnish no evidence whatever as to his present character. Neither ground is sustainable and neither requires extensive consideration. In support of the first ground plaintiff cites cases which state the general rule that reputation may not be proved by evidence of specific acts of misconduct. The question here, however, was one of character and not merely of reputation. It is not necessary to point out the situations in which the two do or do not differ, depending upon the issue to be tried. Evidence of plaintiff's conduct extending over a period of years furnished the best index to his character. Where it is the main, rather than a merely collateral issue, proof of specific acts involving moral turpitude is the best method by which immoral character may be established. In re Stover, 65 Cal.App. 622, 224 P. 771; Klevesahl v. Byington, 1 Cal.App.2d 671, 37 P.2d 179; Commonwealth v. Lyons, 142 Pa.Super. 54, 15 A.2d 851, 852; Hardesty v. Hine, 135 Ind. 72, 34 N.E. 701, 702; Stockwell v. Brent, 97 Ind. 474, 477; Rosencranz v. Tidrington, 193 Ind. 472, 141 N.E. 58, 59, 28 A.L.R. 1136; In re Williams, Mo.App., 113 S.W.2d 353, 369. See also, In re Cohen's Will, 164 Misc. 98, 298 N.Y.S. 368; Madsen v. Town of Oakland, 219 Iowa 216, 257 N.W. 549; McMahon v. Harrison, 6 N.Y. 443; 22 So.Calif.L.Rev. 341; 1 Wigmore, Evidence, 3rd Ed., sec. 202, p. 689. Engaging in gambling and the business of bookmaking gave plaintiff an immoral character. Proof that he was of immoral character therefore consisted of proof that he was a gambler and bookmaker. There was no error in the receipt of evidence of his convictions and pleas of guilty. The contention that his proved offenses were to remote to have a bearing upon his present character is likewise without merit. The objections were addressed to the weight of the evidence. Where the inquiry runs to the question of moral character the court may receive any evidence which tends to show character for honesty, integrity or general morality. In re Wells, 174 Cal. 467, 475, 163 P. 657; In re Weinstein, 150 Or. 1, 42 P.2d 744, 746. The scope of the inquiry was necessarily broad. Character is not something that necessarily changes with the passage of time. It would seem clear that one who comes into court asserting some right which depends upon proof that he is of good moral character opens the way to an unrestricted inquiry into his antecedents.

A further claim of error in based upon the admission of the testimony concerning plaintiff's reputation and that of his cafe. It was alleged in the complaint that plaintiff is and for several years has been engaged in conducting and operating as owner and part owner substantial business enterprises in the City of Los Angeles. He made an issue of his own reputation and that of his place of business. He testified, as did many witnesses, that his cafe is patronized by people of high standing and reputation. Numerous of his friends and patrons, including well known members of the bar, testified that he enjoys a good reputation which they thought had not been tarnished by his convictions of bookmaking and gambling. Upon these issues it was proper for defendant to prove that the cafe is known as a place where bookmakers and gamblers congregate and where bookmakers and holders of lottery tickets have been arrested. It was proper also to receive evidence that plaintiff still has a reputation as a bookmaker and gambler.

Other findings are attacked as being unsupported by the evidence. These claims do not require particular attention. The findings we have discussed are sufficient to support the judgment. We have considered other minor assignments of error and find them to be without merit.

The judgment is affirmed.

I dissent.

First. The majority strikes down one of the most sacred and fundamental rights of a citizen—personal liberty. The opinion lays down a most dangerous doctrine. In California, race tracks and horse racing, upon the results of which there is wagering, are to all intents and purposes controlled, operated, managed, and regulated by the State. Operators of race tracks are invested with and exercise quasi-public functions. They are, in effect, agencies of the State. They are under the public obligation to operate race tracks for the benefit of the public. This is the obvious legal effect of the statute and in accord with its spirit and intent. Bus. & Prof. Code, secs. 19 400–19 663. The trial court found: ‘the jurisdiction and supervision over meetings in this state of horse races on the result of which there is wagering are held or conducted and over all persons or things having to do with the operation of such meetings is vested in the California Horse Racing Board.’ The public have a right and interest in race tracks in California both from an amusement and economic point of view. It is reported that the State received in excess of $16,000,000 in the fiscal year ending June 30, 1949, as its share of the proceeds of pari-mutuel wagering at race tracks in the State. In addition, a substantial part of the proceeds must be devoted to charity. A race track in California is a public place in the same sense that a state building, highway, park, or beach is a public place. In my opinion, all citizens have a constitutional right to attend race tracks in this State and participate in their benefits so long as they behave themselves while there. The right is not a privilege extended by law. It is a right inherent in all citizens. It exists independently of Civil Code section 53. Cf. Ex Parte Smith, 135 Mo. 223, 36 S.W. 628, 33 L.R.A. 606, 58 Am.St.Rep. 576; City of St. Louis v. Gloner, 210 Mo. 502, 109 S.W. 30, 15 L.R.A., N.S., 973, 124 Am.St.Rep. 750; State v. Hunter, 106 N.C. 796, 11 S.E. 366, 8 L.R.A. 529; Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Brown v. Memphis & C. R. Co., C.C., 7 F. 51; Pinkerton v. Verberg, 78 Mich. 573, 44 N.W. 579, 7 L.R.A. 507, 18 Am.St.Rep. 473; Milliken v. City Council, 54 Tex. 388, 38 Am.Rep. 629; City of Watertown v. Christnacht, 39 S.D. 290, 164 N.W. 62, L.R.A.1917F, 903; City of St. Louis v. Fitz, 53 Mo. 582; City of St. Louis v. Roche, 128 Mo. 541, 31 S.W. 915, 917; Putnam v. Broadway & S. Ave. R. Co., 55 N.Y. 108, 114, 14 Am.Rep. 190; Pearson v. Duane, 4 Wall. 605, 71 U.S. 605, 18 L.Ed. 447; Story v. Norfolk & S. R. Co., 133 N.C. 59, 45 S.E. 349; Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131; Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574; Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265; Tucker v. Texas, 326 U.S. 517, 66 S.Ct. 274, 90 L.Ed. 274; Thomas v. Collins, 323 U.S. 516, 530, 65 S. Ct. 315, 89 L.Ed. 430, 440; Follett v. McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938, 152 A.L.R. 317; West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628, 147 A.L.R. 674; Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313; Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192, 159 A.L.R. 1346; Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352; Hague v. Committee for Industrial Organization, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; McKay Jewelers, Inc., v. Bowron, 19 Cal.2d 595, 122 P.2d 543, 139 A.L.R. 1188; In re Campbell, 64 Cal.App. 300, 221 P. 952. The record in this case may be probed and there will not be found an iota of evidence that appellant was guilty of the slightest impropriety of behavior at Santa Anita Park or that he conducted himself there in any manner other than as an orderly, law-abiding citizen. The exclusion of appellant from Santa Anita Park constitutes a deprivation of the rights and privileges guaranteed to him by the Constitution of California and the Fourteenth Amendment to the Constitution of the United States.

Second. Civil Code section 53, which makes it unlawful to refuse admittance to any person to a race track, provides that any person of immoral character may be excluded. No reasonable and ascertainable standard or guide is fixed or prescribed for determining whether a person is of immoral character. The statute is liable to great abuses and partial and unjust discriminations. Any person attending a race track must submit his good character to the judgment of some unidentified, undesignated person. The statute places the character, moral or not, of every citizen attending a public place on trial by such person. The reputation of the private life of the citizen may at any time be called in question by him. Such unidentified and undesignated person at a public place is made a censor and is permitted to arbitrarily classify citizens, without a hearing, according to his conception, more or less fastidious, of their moral character or want of it, when their manner, dress, and conduct are not offensive. The statute in this respect is so vague, indefinite and uncertain as to render it unconstitutional and inoperative. It is repugnant to the guaranty of liberty contained in Article I, section 1 of the Constitution of California and in the Fourteenth Amendment to the Constitution of the United States. See, Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155, 166; Perez v. Sharp, 32 Cal.2d 711, 728, 198 P.2d 17; In re Stewart, 24 Cal.2d 344, 348, 149 P.2d 689; In re Peppers, 189 Cal. 682, 209 P. 896; In re Harder, 9 Cal.App.2d 153, 49 P.2d 304. The same stricture applies to the rule of the Horse Racing Board providing for the exclusion of ‘known undesirables.’

Third. I am unable to follow the finespun reasoning of the majority. There is no finding, express or implied, that appellant was on January 31, 1946, and February 2, 1946, the days he was ejected from Santa Anita Park, a person of immoral character. There is a finding that he was on those days a ‘known undesirable.’ It is apparent that the trial judge based his decision denying an injunction on this finding. He found that the Horse Racing Act is subsequent to and supersedes the provisions of sections 50, 52, and 53 of the Civil Code. The majority, apparently, agree, as they base their decision on their own finding that appellant is a person of immoral character. It is not unlawful, and therefore not immoral, to accept a wager on the result of a race under the pari-mutuel system within the inclosure of the race track. Bus. & Prof. Code, § 19594. It is also not unlawful, and therefore not immoral, to accept a wager from an agent of a principal who is not within the inclosure provided the wager is accepted within the inclosure under the pari-mutuel system. It is not unlawful, and therefore not immoral, for a person without the inclosure to send an agent to a race track to wager for the principal, provided the agent makes the wager within the inclosure under the parimutuel system. Bus. & Prof. Code, § 19595. It is not, say the majority, malum in se to accept one or a thousand wagers within the inclosure under the pari-mutuel system. Just what renders one or more wagers outside of the inclosure malum in se, or what smog exists outside the inclosure that taints a person who so accepts one or more wagers, is not made clear. From the standpoint of morality, I cannot perceive any distinction between the acceptance of a wager on a horse race made by an agent inside the inclosure under the pari-mutuel system for a principal who remains outside the inclosure, and the acceptance of a wager outside the inclosure. I am not persuaded that a person is of immmoral character because he accepts one or more wagers on horse races outside of the inclosure. A wager on a horse race is no more malum in se than is buying stock on margin or any other speculative transaction. It has been held that neither a horse race nor a wager thereon is immoral in itself. Ross v. Green, 4 Har., Del., 308, 309; Walker v. Armstrong, 54 Tex. 609, 615. The acceptance of one or more wagers on a horse race in this state except at a race track under the pari-mutuel system is wrong solely because it is prohibited by statute.

The burden was not upon appellant to prove ‘that he is a man of good moral character’ as the majority assert. The law presumes that he is a man of good moral character. Code Civ.Proc., sec. 1963, subd. 1. The burden was upon respondents to prove that he was a person of immoral character on the days he was unceremoniously ejected from Santa Anita Park. The wagers (three of them) upon which the majority base their finding that appellant is a person of immoral character, were accepted by him more than ten years ago and over a ten year period. Four of the seven offenses of which the majority say appellant ‘was adjudged guilty’ were under an unconstitutional statute. There is no evidence that appellant was ever engaged in the ‘business of bookmaking,’ or that he ever was in ‘the business of accepting bets on horse races,’ or that he was a bookmaker at any time after July, 1939, or ‘that for many years plaintiff made a business of violating the law,’ or that he ‘persistently violate[d] the law for personal gain,’ or that he is a ‘known undesirable,’ whatever that term means, or that he is a person ‘guilty of conduct detrimental to racing,’ whatever that phrase means. The fact that appellant was convicted of bookmaking more than ten years ago does not make him a person of immoral character now. If it be assumed that appellant was engaged in the ‘business' of bookmaking and was a person of immoral character in 1939, the date he was last convicted of bookmaking, it does not follow that he is now a person of immoral character and should be excluded from race tracks. It is beyond the power of respondents to permanently ostracize appellant from Santa Anita Park or exclude him from participation in its benefits. No right exists to bar forever from a public privilege a person whose only offense is that it was once proper so to do. There is no evidence of substance upon which to base a finding that appellant is now of immoral character except the three more-than-ten-year-old convictions.

Fourth. The prevailing opinion is vulnerable in a number of other respects. Appellant makes several points which appear to be important and if well taken, in my opinion, require a reversal. These are ignored. However as none of them involves a fundamental principle, no useful purpose would be served in discussing them here.

I would reverse the judgment.

SHINN, Presiding Justice.

WOOD, J., concurs.

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