Opinion
12-07-1908
McCARTER v. DUNGAN et al.
John H. Backes, for complainant. Nelson Y. Dungan, pro se.
Suit by Robert H. McCarter, Attorney General, against Nelson Y. Dungan and others. Heard on bill for injunction on return of order to show cause. Denied.
John H. Backes, for complainant.
Nelson Y. Dungan, pro se.
LEAMING, V. C. (orally). I adhere to the views which I expressed at the time the former application for a preliminary injunction was made in this case; and I entertain the view that the present record discloses no conditions so essentially different from those existing at the time of the former application as to warrant preliminary relief at this time. I think that this court should, by a preliminary writ at least, hesitate to interfere with the management of an armory building when the persons who are by law intrusted with the management are manifestly exercising, in good faith, their best judgment and discretion in the use of the building, and are devoting it to uses which they believe to be essential and conducive to the general benefits and needs of the military organization, unless, of course, it should be made to plainly appear that the managing officials are so clearly mistaken in their views that their judgment cannot be properly accepted as an exercise of a discretion which the law has imposed upon them. I also entertain the view that the use of an armory building for amusement purposes is entirely lawful when it can reasonably be said that the amusements for which it is used are essential to the esprit de corps of the regiment. If uses are indulged which tend to materially injure the corpus of the armory building, and are in that manner destructive of the state's property, or if amusements are engaged in for purely commercial purposes, a different question is presented; but, where the amusements which are conducted in the building are not injurious to the property itself, and where it can reasonably be said that they are necessary to maintain the interest of the members of the guard and tend to aid the procurement of re-enlistments, or aid in procuring new enlistments, or operate to stimulate general interest and attendance in the regular drill and instruction work, it seems to me entirely clear that such uses come within the contemplated uses for which the armory is erected.
In the case as it was first presented the amusements which were sought to be enjoined were dancing and roller skating, and in those amusements the members of the regiments participated with the public, and in that way shared in the active enjoyment of the amusements, not only as spectators, but as participants. The complaints which are now made embody one new condition, so far as the amusement which was conducted in the armory building in September is concerned, in that that amusement appears to have been of such a nature that the members of the organization could not participate in it except as spectators; and that, I think, is the only occasion in which the armory has been used for entertainment purposes in a manner in which the members of the Guardhave not been active participants, or have not been privileged to become active participants. I cannot think, however, that that fact in any way introduces a new principle. It still leaves the controlling inquiry, as I think I stated it when the matter was first under consideration, whether or not, as a fact, the use which is in question is such a use as is primarily for the purpose of increasing the interest of the members of the organization, and conducive to that general purpose, or whether the use is simply a commercial use; and the affidavits now on file are positive and convincing to the effect that the single and primary purpose of the officers of the organization is to supply such amusements as are necessary to maintain the interest of the members, and that the amusements in question have been inaugurated and are being conducted to that end, and that the revenues derived by the admission fees which are charged are a matter of no concern further than to make revenues commensurate or, if possible, a little in excess of the expenses incident to the entertainments. It would be doing violence to the affidavits on file to make a finding of fact that any entertainment has been given in the armory building in question that has not had for its primary aim the stimulus of an interest on the part of the members of the organization itself, as distinguished from any purpose to make money. It may be that a bicycle track approaches near to, if it does not pass over, the boundary line between an appropriate and inappropriate use. A bicycle track necessarily occupies space that is primarily intended for drilling purposes; but the evidence is that the drilling floor was appropriated for the bicycle track at a time when drilling had been suspended for the summer season and when the floor was not needed for any other purpose, and that the track was removed before the part of the floor which had been occupied was needed for drilling purposes. I think the evidence is also of such a nature as to necessitate the finding that the presence of the bicycle track on the armory floor in no way injured the floor or other parts of the building.
I am entirely convinced that, so long as the amusements which are afforded are within the lines which I have undertaken to indicate—that is, so long as the amusements which are held appear to be in pursuance of a reasonable exercise of discretion upon the part of the officers in charge, to the sole end and purpose that the interest of the individual members of the military organization may be increased and the needs of the regiment in that manner conserved, and not for the purpose of making money—a court of equity should not interfere in the use. I will advise an order denying the prayer for a preliminary injunction.