Lee v. City of Miami

163 So. 486, 121 Fla. 93

• Court: Supreme Court of Florida
• Decided: September 27, 1935
• Status: Published

Opinions

Terrell, J.

This appeal is from a decree of the Circuit Court of Dade County restraining J. M. Lee, as Comp troller of the State of Florida, Leonard Thompson, as Tax-Collector of Dade County, and W. F. Blanton, as County Judge of Dade County, from enforcing, administering, or attempting to enforce any of the powers or duties vested in them under House Bill 1131, now Chapter 17257, Acts of 1935, Laws of Florida.

The purpose of Chapter 17257 is briefly stated in the title which is as follows:

“An Act to License Certain Types of Coin-Operated Devices; to Regulate the Operation Thereof; to Designate the Penalties for the Violation of the Provisions of This Act; to Define Certain Types of Coin-Operated Devices; Providing for the Division and Distribution of the Revenue Derived Therefrom and Other Matters Properly Relating Thereto; and to- Provide for Holding Recall Elections in any County to- Determine Whether Licenses Shall he Revoked or Continued Therein.”

Section Two of Chapter 17257 is the part 'assaulted in this litigation and is as follows:

“Section 2. For the purpose of this Act, coin-operated devices are defined and classified as follows':

“(1) Automatic coin-operating vending and amusement machines with premium features, which may or may not vend for each coin deposited a standard article of merchandise having a recognized retail value, and which at intervals vend checks, tokens, coins, or orders which may or may not be exchanged for additional merchandis'e. Hereinafter this type will be referred to as automatic vendors.

“(2) Coin-operated skill machines (commonly referred to as Pin-Games, Marble Tables, and similar devices of this type which may have a skill feature) which may or may not pay a reward for skillful operation or upon which operation, premiums may or may not be given for high score or making certain combinations'. Such premiums may be awarded either automatically by the machine in the form of checks, tokens, or orders, which designate the value of the premium or premiums' or may be indicated by a score card attached to the machine. Hereinafter this type shall be referred to as skill machines.

“(3) Trade Machines. These machines have no automatic vending feature, although at intervals indicate that patron is entitled to receive premiums. Hereinafter this type will be referred to as trade machines. Only such types of machines as are hereinabove described and referred to as automatic vendors, skill machines and/or trade machine^ are covered by this Act. Nothing herein contained shall be construed to apply to any coin-operated machine or device which returns amusement, entertainment or some service or article of value or a combination of the above, uniformly as to quantity and quality, upon each insertion of a coin into the same, nor to any coin-operated telephone.

“(4) ‘Other Machines'.’ All other coin-operated machines or slot machines not covered by any of the above definitions, classifications, or descriptions, shall be classified as ‘other machines’ and shall be subject to an occupational license tax as hereinafter provided.

“(5) This Act shall not apply to coin-operated telephones nor to U. S. stamp machines.

“(6) The Comptroller is hereby authorized and directed to make and promulgate such reasonable rules and regulations as may be necessary to secure and determine uniform classifications for the purposes of this Act, of all devices and/or machines within the State of Florida.”

“Both the ‘operator’ and the ‘location operator’ of any machine as defined in Section Three of the Act are required to secure a license for that purpose and it is made the duty of the Comptroller to prescribe rules for and to administer the said Act.” The order appealed from was granted on the ground that the coin-operated devices narped in Section Two constituted lotteries such as' were inhibited by Section Twenty-three of Article Three of the Constitution which provides that, “Lotteries are hereby prohibited in this State.”

We are, therefore, faced with the sole question of whether or not coin-operated devices as defined by Section Two of Chapter 17257, Acts of 1935, constitute lotteries as defined by Section Twenty-Three of Article Three of the Constitution.

Webster defines a lottery as a scheme for the distribution of prizes by lot or chances. Worcester defines it as a distribution of prizes and blanks by chance, a game of hazard in which small sums' are ventured for the chance of obtaining a larger value either in money or in other articles. Other standard dictionaries are to like effect. The courts have defined a lottery as the payment of a pecuniary consideration, and it is determined by lot or chance, according to some scheme held out to the public, what and how much he who pays the money is to have for it, that is to say a scheme by which a result is reached. by some action or means taken, and in which result man’s choice or will has no part, nor can human reason, foresight, sagacity, or design enable him to know or determine such result until the same has been accomplished. 17 R. C. L. 1210 and cases cited.

In Horner v. United States, 147 U. S. 449, 13 Sup. Ct. 409, 37 L. Ed. 237, the Court called a lottery a scheme for raising money by selling chances to share in a distribution of prizes; more specifically a scheme for the distribution of prizes by chance among persons purchasing tickets, the cor- res'pondingly numbered slips, or lots, representing prizes or blanks, being drawn from a wheel on a day previously announced in connection with the scheme of intended prizes. In law the term lottery, said the Court, embraces' all schemes for the distribution of prizes by chance, such as policy playing gift exhibitions, prize concerts, raffles at fairs', et cetera, and includes various forms of gambling.

In many states the Legislature has undertaken to define the term lottery. Here is a typical legislative definition: A scheme for the distribution of property by chance, among persons who have paid or agreed to pay a valuable consideration for the chance, whether called a lottery, raffle, or gift enterprise, or by some other name. People, ex rel. Ellison, v. Lavin, 179 N. Y. 164, 71 N. E. 753; 66 L. R. A. 601.

Lotteries in a legal sense, like many other institutions, have experienced an interesting evolution. In Some jurisdictions the term lottery is employed in its generic sense, while in others it has its technical implications. Lotteries are of ancient origin. They were common in the festivals of Roman Emperors, were used by the Feudal princes' of Europe, by the Court of Louis XIV, and were appropriated in the Italian republics of the Sixteenth Century h> encourage the sale of merchandise. They early became popular in France, Belgium, Sweden, and Switzerland as a means of raising government funds. They were established in England as early as 1569 and were one of her most popular sources of revenue. They were at one time employed in every state of the Union and in the District of Columbia to raise money for public purposes, the erection of buildings, making public improvements, for educational and sometimes for religious purposes. In 1828 the Territorial Legislature of Florida created Union Academy in Jackson County and authorized its trustees to raise $1000.00 for its benefit by lottery. Page 279, Acts of 1828. During the Revolution the Continental Congress on one occasion authorized the raising of funds by lottery. Stone v. State of Mississippi, 101 U. S. 814, 25 L. Ed. 1079.

Under the common law lotteries and all forms of gaming were pronounced illegal only when they became public nuisances. In 1698 an Act of Parliament declared the former to be such. In Great Britain and in every State .in the United States they have been suppressed by constitutional provision as the result of popular uprising against them early in the latter half of the preceding century.

The form of lottery against which' popular indignation was directed had its peculiar implications. The Legislature would first grant a charter to a lottery company for a period of years in consideration of a stipulated sum in cash, annual payment of further sum, and- a percentage of the receipts from the sale of tickets. Under such a charter the company was authorized to sell tickets, or certificates of subscription to issue receipts therefor, and to contract with agents to sell them on commission or otherwise. The tickets or certificates entitled the holders, to such articles as might be awarded them, the distribution to be made in public, after advertising, by the casting of lots, or by lot, chance, or otherwise in such manner as directed by the by-laws of the corporation. The holders of tickets in such lotteries could sell them or any interest in them and the purchasers were entitled to participate in the distribution of any prize under them. Money, lands, and merchandise of all kinds were distributed by such lotteries. Under these charters lottery companies devised every scheme and device to ensnare the public, regardless of age, class', or station. Through them the gambling, cheating spirit became dominant and their baneful influence spread like a plague throughout the country.

It was such lotteries as these that the Supreme Court of the United States was concerned with in Phelan v. Virginia, 8 How. (U. S.) 163, 12 L. Ed. 1030, when it said:

“Experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with the widespread pestilence of lotteries. The former are confined to a few persons and places but the latter infests the whole community; it enters every dwelling; it reaches every class; it prays' upon the hard earnings of the poor; and it plunders the ignorant and the simple.”

Lotteries are generally classified as a species of gambling, though the statutes dealing with them and other forms of gambling have recognized a clear line of distinction between them. This' distinction has been recognized, by different degrees of punishment and by the ascription of different attributes to each. People v. Reilly, 50 Mich. 384, 15 N. W. 250; Ex Parte Kameta, 36 Ore. 251, 60 Pac. 394, 78 A. S. R. 775.

In many jurisdictions with constitutional and statutory provisions inhibiting lotteries the statutes have attempted to define them and often such definitions are all inclusive embracing many species of gambling. Our constitutional provision suppressing lotteries does not attempt to define them but in view of the prevailing conditions as supported by contemporaneous' and subsequent history we must conclude that the people of this state had in mind such a lottery as was referred to in Phalen v. Virginia, supra.

This conclusion is abundantly supported by the legislative history of the State on the subject of lotteries and other forms of gambling. Section 23 of Article III first appeared as Section 20 of Article IV of the Constitution of 1868 and was carried into the Constitution of 1885 in the form now brought in question. The first session of. the Legislature under the Constitution of 1868 enacted Chapter 1637, the same being an Act to provide for the punishment of crime, and proceedings in criminal cases. Chapter 10 of this Act treats and punishes “offenses against public policy.” The offenses so treated and punished are the owners and operators' of lotteries, the owners of buildings used for lottery purposes, those selling lottery tickets, those advertising lottery tickets, regulates the forfeiting of lottery prizes, punishes horse racing, and those guilty of disclosing the contents of telegraphic messages to others than the consignee.

Chapter 4373, Acts of 1895, was an Act to prohibit lotteries and games of chance, and to prescribe penalties therefor. With respect to lotteries it carried substantially the same provisions as Chapter 1637, Acts of 1868, but more detailed. It clearly distinguished lotteries from games' of chance by difference in characterization and in punishment. We have had no other legislation treating specifically the subject of lotteries.

The first statute enacted on the subject of gambling was Number 55, approved February 10, 1832, Section 46 of which prohibits and punishes any person found playing and betting at any game of cards, dice, checks, or billiards, or any other article or instrument used for the purpose of betting. Horse-racing, shooting with guns, wrestling, jumping, foot-racing, five playing, pitching quoits, and such like were specifically excepted from the terms of this Act.

In 1853 by Chapter 542, approved January 8, the Legislature modified the punishment imposed by the foregoing statutes but no other law on the subject was enacted until 1881 when the Legislature passed Chapter 3277, being an Act to suppress' gaming. This Act prohibited and punished those guilty of keeping gaming tables, rooms, houses, booths, tents, shelters, or any other place for the purpose of gaming.

Sections 5505, 5508, 5509, 5510, 5511, and 5514, Revised General Statutes of 1920, Sections 7663, 7666, 7667, 7668, 7669, and 7672, Compiled General Laws of 1927, all treat different phases of gambling and lotteries and some of them are parts of the Acts previously referred to. Chapter 14832, Acts of 1931, legalizing pari-mutuel betting on horse-racing, affecting another phase of gambling, is another Act of the same character. All of these Acts show clearly that the Legislature recognized the distinction between, lotteries and other species of gambling both before and after the adoption of Section 23 of Article III and it is significant that its right to regulate the latter has never been challenged except in cases where the inhibition against lotteries is’ alleged to have been infringed. The organic law having used the word lottery in its generic sense and the Legislature never having defined it to include other forms of gambling, but having constantly acted on the theory that it did not embrace them, we do not feel warranted in ascribing to it a meaning other than was apparently in the mind of the people when it was embraced in the Constitution.

The Constitution of Florida is a limitation of power and while the Legislature cannot legalize any gambling device that would in effect amount to a lottery, it has inherent power to regulate or to prohibit any and all other forms of gambling, such distinction being well defined in the law. This view is in line with the holding in other states having constitutional provisions similar to ours. People v. Reilly, 50 Mich. 384, 15 N. W. 520, 45 Rep. 47; 38 C. J. 286; People v. Monroe, 349 Ill. 270, 182 N. E. 439, 85 A. L. R. 622; Ex Parte Piefotti, 43 Nev. 243, 184 Pac. 209. In the latter case the court Said:

“It is true that lotteries and unlawful gaming partake of the same mischief. They belong to the same family. Chance is the material element in both. The Legislature is prohibited from legislating upon one and permitted by virtue of its inherent powers to legislate upon the other as the occasion aris'es. This for the reason of the wide distinction or contrast between the vice of lotteries, which infests the whole community, and the mischief or nuisance of gaming, which is generally confined to a few persons and places. To say that the Legislature is without power to legislate upon the subject of gaming is to set at naught the basic power of the legislative branch of the government.”

In the case notes in 26 A. L. R. 724, 39 A. L. R. 1036, 48 A. L. R. 1121, 57 A. L. R. 424, annd 41 A. L. R. 1484, many cases are digested where the court held that lotteries did not include every scheme where the element of chance, iot, or prize was prevalent. These cases all support the conclusion we have reached here which is a legal judgment and in no way concerns the policy of the Act.

“What Section 23 of Article III actually did was to suppress such legalized lotteries as are referred to in the forepart of this opinion, the primary test of which was whether or not the vice of it infected the whole community or country, rather than individual units of it. Any gambling device reaching such proportions would amount to a violation of the Constitution but it is not alleged or shown that the devices legalized by Chapter 17257 come in this class.

Chapter 17257 on its face does not clearly offend against organic law nor do the coin-operating vending machines described in Section 2, the use of which is restrained, constitute lotteries' per se. It may be that some of them or possibly all of them in their operation will become such; but we leave that question to be determined when a specific case arises. This holding is not in conflict with, but is supported by, State v. Vasquez, 49 Fla. 126, 38 So. 830, and other cases relied on by appellee.

Reversed.

Whitfield, C. J., and Brown and Davis, J. J., concur.

Buford, J., dissents in part.