# Orloff v. Los Angeles Turf Club, Inc.

> California Supreme Court · February 14, 1951 · 36 Cal. 2d 734

URL: https://www.frixlaw.com/law-library/cases/9620891

## Case

- **Full name:** MORRIS ORLOFF, Appellant, v. LOS ANGELES TURF CLUB, INC., Et Al., Respondents
- **Court:** California Supreme Court
- **Decided:** February 14, 1951
- **Citations:** 36 Cal. 2d 734; 227 P.2d 449; 1951 Cal. LEXIS 222
- **Precedential status:** Published
- **Opinion:** Concurrence by Spence
- **Judges:** Shenk, Spence
- **Cited by:** 60 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9620891

## Opinion text

SPENCE, J.
I concur in the reversal of the judgment, as I am of the view that under a proper construction of the statute before us, the evidence was insufficient to justify the exclusion of plaintiff from the racetrack. I also agree with the conclusion of the majority opinion that the rights of the parties must be determined under the statute rather than under the rules, as the board had no power by rule to provide for the exclusion of members of the public upon grounds other than those provided in the statute. I cannot, however, subscribe to the construction placed upon the statute in the majority opinion, for, in my opinion, such construction alters the meaning of the statute and defeats the legislative intent and purpose.
A reading of section 53 of the Civil Code shows that it is applicable not only to a “race-course” but also to any “theater, melodeon, museum, circus, . . . fair or other place of public amusement or entertainment.” By its terms, it permits the proprietor to exclude from any such place only certain persons, including a “person of lewd or immoral character.” The intent and purpose of such permissible exclusion seems clear. As stated iu the majority opinion, “the Legislature was undoubtedly concerned with the safety and welfare of the attending public,” and the “general objective was the protection of others on the premises.” It is a matter of common knowledge that many of such places of public amusement and entertainment are heavily patronized by young men and women, as well as by small children, and that the records of our courts abound with the criminal prosecutions of sex offenders, in which it appears that their initial advances upon their *743 victims were made in such places. These considerations were unquestionably in the minds of the legislators when enacting said section 53, and it seems obvious that it was the intent and purpose of the Legislature, in including the phrase in question, to permit the proprietor of any such place to exclude from admission known sex offenders, including sexual perverts, to the end that other patrons would not be molested by the advances of such undesirables.
As I read the majority opinion, it would deny to the proprietor of such an establishment permission to exclude any known sex offender unless and until such person might be actually caught in the commission of a lewd or immoral act on the premises. So it is said that “past conduct not on the premises . . . whether or not relevant to indicate his character” is “immaterial,” and it is indicated that the only material consideration is “the person’s conduct when entering and attending” the place of public amusement or entertainment. Thus, the effect of the majority opinion is to rewrite the phrase permitting the exclusion of a “person of lewd or immoral character” to permit the exclusion only of a “person guilty of lewd or immoral conduct at the place of public amusement or entertainment.” This constitutes a complete emasculation, rather than a construction, of the phrase under consideration. Furthermore, it renders the phrase practically meaningless and without purpose, as there are numerous statutes prohibiting lewd and immoral acts under which a person committing such acts at a place of public amusement might be arrested and summarily ejected from such place. It thus appears that the salutary purpose of the phrase under consideration is defeated by the construction placed upon it in the majority opinion.
The question remains as to whether such phrase can be otherwise construed so as to withstand the attack made upon it because of its claimed uncertainty. In my opinion, it can and, as hereinafter construed, no valid constitutional objection can be interposed.
It must be remembered that, contrary to the implications in the majority opinion, the source of plaintiff’s right, or the right of any person, to be admitted to a place of public amusement rests solely in the statutes under consideration. No such right is accorded by the Constitution, and no such right existed at common law. (Finnesey v. Seattle Baseball Club, 122 Wash. 276 [ 210 P. 679 , 30 A.L.R. 948 ]; annos. 30 *744 A.L.R. 951 , 60 A.L.R 1089; also, Greenberg v. Western Turf Assn., 140 Cal. 357 [73 P.1050]; 148 Cal. 126 [ 82 P. 684 , 113 Am.St.Rep. 216 ].) The statement in the majority opinion that “The enactments are declaratory of existing equal rights . . is not supported by the citation of a single authority. On the contrary, the right of any person to admission to such places is measured entirely by the terms of such statutes, and it is the duty of this court to place a reasonable and workable construction upon the statutory limitations affecting such right, if such construction is possible.
It may be freely conceded, as indicated in the majority opinion, that the word “immoral,” when standing alone, has “no fixed and well defined meaning,” and that it “might mean anything and might have different meanings in the minds of different people” (State v. Truby (1947), 211 La. 178 [ 29 So.2d 758, 760 ]) so that its use alone would create no “certain or understandable rule” (State v. Vallery (1948), 212 La. 1095 [ 34 So.2d 329, 331 ]). But if, as assumed in the majority opinion, the word “immoral” is objectionable here because of its uncertainty, it is equally objectionable as a description of conduct as it is as a description of character. In passing, it appears appropriate to suggest that there are numerous persons whose concepts of morality are such that, according to their standards, any person who makes a practice of attending racecourses for the purpose of engaging in parimutuel betting, and, a fortiori, any person who makes a business of conducting for profit such pari-mutuel betting or any other gambling enterprise, is a person of “immoral character.” It seems certain that those engaged in the conduct of racecourses would be the last to suggest that the Legislature intended to adopt, or that any court or jury should apply, such a high standard; and yet the question remains as to where the line can be drawn in the determination of who is and who is not a ‘ ‘person of lewd or immoral character ’ ’ within the meaning of the statute, unless it be drawn as herein indicated.
The vice of the majority opinion lies in its consideration of the word “immoral” alone and out of context. Here the statute authorizes the exclusion of a “person of lewd or immoral character.” The descriptive qualification appears as an integrated limitation, with the association of wording indicative of the Legislature’s intent that the word “immoral” partake of the same connotation in meaning as the word *745 “lewd,” one in juxtaposition with the other in completing the phrase. The word “lewd” has been defined by lexicographers to mean “given to the unlawful indulgence of lust; eager for sexual indulgence” (United States v. Rebout, 28 F. 522, 524 ; Jamison v. State, 117 Tenn. 58 [ 94 S.W. 675 , 678]); “lascivious, lecherous; tending to excite lustful thoughts” (Ledbetter v. State, 184 Tenn. 396 [ 199 S.W.2d 112, 114 ]). Accordingly, the term “immoral character” as used in the same phrase would signify its meaning as focused upon character with respect to sex infractions. The fact that the connection between the related words is in the disjunctive rather than in the conjunctive does not militate against their interpretation by reason of association, when necessary to effectuate the legislative intent. (23 Cal.Jur. § 115, p. 737; In re Sekuguchi, 123 Cal.App. 537, 538 [ 11 P.2d 655 ].) Under the rule of noscitur a sociis the meaning of a word takes color |¿hd expression from the purport of the entire phrase of which It iu a part, and it must be construed so as to harmonize with the context as a whole. (50 Am.Jur. § 247, p. 241; 23 Cal. Jur. § 129, p. 755; United States v. Lewis, 110 F.2d 460, 462 ; Vilardo v. County of Sacramento, 54 Cal.App.2d 413, 420 [ 129 P.2d 165 ].) So pertinent is the observation of Mr. Justice Holmes when he said, “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” (Towne v. Eisner, 245 U.S. 418, 425 [ 38 S.Ct. 158 , 62 L.Ed. 372 , L.R.A. 1918D 254 ].)
As so restricted in meaning to its relation to sex infractions, the term “immoral character” furnishes a sufficiently definite description setting up authorized standards for the exclusion of persons from places of public amusement. In the interpretation of statutes, a construction that “leads to uncertainty or confusion” and would be “productive of . . . insecurity” will be avoided in favor of a construction that will “afford a fixed, permanent and certain rule to ascertain whether a particular case is included within or excluded from the operation of the statute.” (50 Am.Jur. § 382, p. 394.) So here, by confining the concept of the word “immoral” to coordinate with the measure of sex considerations inherent in the word “lewd,” the entire phrase, “a person of lewd or immoral character,” is given a sufficient precision in meaning and rendered unobjectionable on the premise of being vague *746 and indefinite according to recognized standards of conduct. (United States v. Lewis, supra, 110 F.2d 460, 462 .)
I therefore agree that the judgment must be reversed because of the absence of any evidence whatever to show that plaintiff was “a person of lewd or immoral character” as that phrase has been here construed. I cannot join, however, in the declarations of the majority opinion which construe the statute so as to deny to the proprietor of a place of public amusement the right to exclude from his premises objectionable sex offenders, as to whom the phrase under consideration was clearly intended to apply.
Edmonds, J., concurred.
Respondents’ petition for a rehearing was denied March 15, 1951. Edmonds, J., and Spence, J., voted for a rehearing.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9620891. Public record. Not legal advice.