Asiatic Club v. Biggy

ANGELLOTTI, J.

This is an appeal by plaintiff from an order of the superior court .refusing to grant an injunction

pendente lite

in an action brought to obtain a judgment perpetually enjoining the defendants, members of the police department of the city and county of San Francisco, from entering upon or in any way interfering with plaintiff’s possession and enjoyment of its premises at No. 118 Waverly Place in said city and county, which premises, it is alleged, are used by the members of said club solely for “educational and social purposes.”

The complaint was filed November 6, 1908, and an order to show cause why a temporary injunction should not issue was made. The motion was heard upon the complaint and affidavits, and on June 22, 1909, the order to show cause was discharged, and a temporary injunction denied. An appeal was improperly taken to the district court of appeal for the first district, appellate jurisdiction in such a ease as this being in this court. The matter has been transferred to this court for hearing and determination. . '

We see no merit whatever in this appeal. Counsel are necessarily compelled to concede that the decision of the trial judge in a matter of this kind cannot be disturbed by an appellate court in the absence of a clear showing of abuse of discretion, and that the decision of such judge upon a substantial conflict of testimony is conclusive in an appellate

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court. Every allegation contained in the complaint and in the affidavits presented in support of the application for a temporary injunction, tending to show any unlawful or unauthorized interference with the rights of plaintiff or any of its members by the defendants or any one acting in collusion with them or under their direction, prior to the commencement of the action, was specifically and in detail denied by the affidavits presented for defendants. Some affidavits were presented on behalf of plaintiff tending to show that subsequent to the commencement of the action and while the order to show cause why an injunction should not issue was pending, certain police officers on several occasions entered plaintiff’s premises, using such force as was necessary to effect an entry, and on one of these occasions arrested all the persons found thereon. These entries were admitted, and were attempted to be justified, in some cases by the fact that the officers had a search warrant authorizing them to enter and search for implements intended to be used in the commission of crime, and in another case by the fact that they had information warranting the conclusion that crime was actually being committed thereon. There is no pretense that anything done by the officers in relation to these premises was not done in good faith, under the belief that gambling games prohibited by section 330 of the Penal Code were being conducted thereon, and for the purpose of stopping such games and arresting the violators of the law. We are not called upon here to consider the question of the sufficiency of the facts alleged in justification of those entries. The evidence before the trial court was amply sufficient to support a conclusion that the plaintiff’s so-called club was maintained solely for the purpose of conducting certain gambling games prohibited by section 330 of the Penal Code, that such games were being constantly carried on therein in violation of such statute, and that the only object of the injunction sought was to prevent interference with such illegal practices by the proper authorities. Doubtless this was the conclusion of the learned trial judge, and the reason for his denial of a temporary injunction. In any event, in support of the action of the trial court we must so assume. This brings the case within the doctrine stated in a concurring opinion in