Schur v. Johnson

California Court of Appeal Dec 7, 1934 No. Civ. 5166Published

Before: Thompson

AI Brief

AI-generated · verify before citing

Holding. The court held that the demurrer was properly sustained because the plaintiff's business, as described in the complaint, appeared to be an illegal gambling game under section 330 of the Penal Code, and courts will not assist in transactions founded on illegal acts.

Issues

Whether the plaintiff's tango game constitutes an illegal gambling enterprise under section 330 of the Penal Code.
Whether the court should grant relief in an action founded upon transactions that are against public policy and in violation of law.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The law will not lend its support to a claim founded upon its violation. . . . No court will lend assistance to one who founds his cause of action upon an illegal act”

“It is the uniform rule of our courts that transactions involving a prohibited gambling game will not be enforced for the reason that such transactions are against public policy and in conflict with the welfare and morals of society.”

[681]

THOMPSON, J.

The plaintiff, who operates a tango game played for merchandise which is convertible into cash, has appealed from a judgment which was entered against him for failure to amend his complaint for the recovery of sales tax paid to the state of California under protest, after a demurrer to the pleading had been sustained. The appellant claims that the transactions incident to the game do not constitute sales of merchandise rendering him liable for tax under the provisions of the California Retail Sales Tax Act (Stats. 1933, p. 2599), and that the act is unconstitutional.

The' complaint alleges that the plaintiff maintained at Santa Monica a place of amusement during the year 1933, in which he operated a tango game, the receipts from which amounted to $48,805.91, derived from charges made for each player’s participation in the game; that those who succeeded in winning at the game were paid in merchandise, consisting of cigars, cigarettes or tobacco which are redeemable by the operator of the game at the market value thereof; that during the year 1933 ninety-nine per cent “of the persons winning said games and given said merchandise did not consume the same or any part thereof, and did not play said game for the purpose of securing said merchandise for consumption, but on the contrary sold and disposed of the same immediately upon receipt thereof in the same form as received by them”. It was alleged the game of tango was played by means of apparatus including glass-faced bins with “numbered slots or compartments in the bottom thereof”, and by use of cards and colored balls. From the description of the game the result of a player’s participation therein appears to depend on chance and not upon skill. The complaint alleges that upon the demand of the state board of equalization the plaintiff paid to the state of California two and one-half per cent sales tax on the gross income from his tango game in the year of 1933, amounting to the sum of $1220.15, and prays for judgment in that sum.

To this complaint the state of California filed a demurrer on the grounds, among others, that the complaint fails to state facts sufficient to constitute a cause of action, and that “It cannot be ascertained from said complaint whether the plaintiff is engaged in conducting or operating a business

Schur v. Johnson

AI Brief

THOMPSON, J.

More from California Court of Appeal

Related research

AI Brief