State v. Nelson

502 P.2d 841, 210 Kan. 439, 1972 Kan. LEXIS 391

Opinions

The opinion of the court was delivered by

Owsley, J.:

Criminal charges were filed in the district court of Allen County, Kansas, against each of three defendants for violating gambling laws. Following a trial to the court the district court ruled as a matter of law that the conduct of the defendants as set forth in the informations was not a violation of K. S. A. 1971 Supp. 21-4307 and 21-4303 in view of K. S. A. 1971 Supp. 21-4302 (1) (d), (2), (3), and (4). The state appeals.

The criminal charges originated as a result of a gambling raid conducted on June 18, 1971, in Iola, Kansas. On that date agents of the attorney general’s office entered the Iola American Legion Club. Upon entering the agents observed two persons, defendants Hutton and Culver, in close proximity to five slot machines. Defendant Hutton appeared to be taking money from the coin return on one of the machines. Defendant Hutton admitted on direct examination that she had been playing the machines earlier in the evening. Culver, according to testimony of a special agent of the attorney general’s office, had his hand on the handle of one of the machines, and released it after the agent entered the room. Culver testified that at the time the agents entered the room he was not playing the machines, but admitted that he had played the slot machines earlier.

Defendant Nelson was the acting club manager of the American Legion club. He admitted that he had custody of the slot machines and the keys to them, and that he had set up the slot machines that were identified during the testimony. It was testified that the funds from the above machines went to the club treasury. It was stipulated that the club was a Class A club, licensee of the Alcoholic Beverage Control Agency, and that the club was exempt from the Federal Income Tax under the provisions of the Internal Revenue Act.

Defendant Nelson was charged with possession of a gambling device, contrary to K. S. A. 1971 Supp. 21-4307. Defendants Hutton and Culver were charged with gambling in violation with K. S. A. 1971 Supp. 21-4303.

The trial court held as a matter of law that the conduct disclosed by the evidence and alleged as violation of the criminal laws of the state did not constitute a crime because of the so-called “bingo” exception to the definition of gambling adopted by the 1971 Kansas legislature.

The parties agree there is only one issue presented in this appeal and that is whether the phrase “bingo and games of comparable characteristics,” as it is used in K. S. A. 1971 Supp. 21-4302, includes slot machines.

The new Kansas Criminal Code (Chapter 180, 1969 Session Laws) revised the laws of this state as to gambling. The former statutes, K. S. A. 21-915 through 21-936, and 21-1501 through 21-1510 approached gambling by prohibiting specific activities. The approach of the new code attempts to define prohibited conduct in a general way. The new code also amended the procedural provisions which were contained in the former law.

In the 1971 session the legislature amended the gambling laws in Chapter 111, Section 1 (now K. S. A. 1971 Supp. 21-4302). Portions of the amendment pertinent to this appeal are as follows:

“(1) A “bet’ is a bargain in which the parties agree that, dependent upon chance, one stands to win or lose something of value specified in the agreement. A bet does not include:

“(d) Any bingo game or a game of chance with comparable characteristics by or for participants conducted by an organization exempt from tax under paragraphs (3), (4), (7), (8) and (10) of subsection (c) of section 501 of the internal revenue code of 1954, as amended, if no part of the gross receipts derived from such activity inures to the benefit of any private shareholder, member or employee of such organization, except as compensation for actual expenses incurred by him in the conduct of such activity and provided that such game is conducted or operated by the officers, employees or members of such organization without compensation therefor other than that to which the officer, employee or member is entitled for the performance of his regular duties, and not by agreement or contract with any other person or organization for which any consideration or compensation is provided.

“(2) A lottery’ is an enterprise wherein for a consideration the participants are given an opportunity to win a prize, the award of which is determined by chance.

“(3) .............

“As used in this subsection, the term ‘consideration’ shall not include sums of money paid by or for participants in any bingo game or a game of chance with comparable characteristics as defined by subsection (d) of this section and it shall be conclusively presumed that such sums paid by or for said participants were intended by said participants to be for the benefit of the organizations described in subsection (d) of this section for the use of such organizations in furthering the purposes of such organizations, as set forth in paragraphs (3), (4), (7), (8) and (10) of subsection (c) of section 501 of the internal revenue code of 1954, as amended.”

A slot machine is designed and utilized as a gambling device. We held in State, ex rel., v. Myers, 152 Kan. 52, 102 P. 2d 1028, that a slot machine is a gambling device per se. Other states have found slot machines to be lotteries. (State v. Brotherhood, of Friends, [Wash. 1952], 247 P. 2d 787.) The judicial council notes appended to K. S. A. 1971 Supp. 21-4302 state a “slot machine is probably the most familiar type of gambling device.”

Bingo may provide fun and amusement to adults and children without prizes and without consideration. Bingo as used in the above statutes, however, contemplates payment for the right to play and contemplates the award of prizes. This is apparent since the statute provides “consideration shall not include sums of money paid” to take part in a bingo game and provides the money paid is for the benefit of tax exempt organizations. As we refer to bingo in this opinion it is labeled in accord with the statutes as a game for which a consideration is paid for the right to participate.

The defendants contend these statutes should be strictly construed against the state and when so construed a slot machine falls within the exception. Defendants also contend the burden of proof is on the state and the record in this case does not furnish a basis for convicting the defendants without engaging in speculation and extending judicial notice beyond its legal concept. Defendants further argue that bingo and slot machines are comparable in all characteristics except that bingo involves group participation while the use of a slot machine is a lone wolf operation. They further argue that it is not reasonable to believe the legislature could have intended to discriminate against the individual who chooses to gamble by himself rather than to join a group of fellow gamblers.

The state contends that slot machines are not games of chance “with comparable characteristics”; hence, they are not exempt from the penal provisions of the gambling laws. The state’s argument is a combination of distinguishing the characteristics of bingo and slot machines, and determining the legislative intent. The state points out that the trial court concluded slot machines have the same characteristics- as bingo since each involves the elements of consideration, prize and chance. The state argues that the import of the trial court’s conclusion would allow any form of gambling by exempt organizations since all lotteries have the characteristics of consideration, prize and chance.

The parties have limited their argument to the issue above stated. In discussing the distinctions and similarities of bingo and slot machines, both parties refer to the definition of lotteries as judicially determined by this court. The assertions of each intermingle and intertwine the elements of a lottery. This is unavoidable since all judicial declarations of this court relating to gambling are focused on and centered around the definition of a lottery. We are exposed to the same difficulty as the litigants. We cannot intelligently dispose of this litigation without considering and discussing the elements of a lottery. In doing so, we cannot avoid making a determination of the constitutionality of the so-called “bingo law.”

In Keplinger v. Kansas City., 122 Kan. 158, 251 Pac. 413, we approved the following language from 12 C. J. 780:

“. . . ■ ‘It is a well-settled principle that the constitutionality of a statute will not be determined in any case, unless such determination is absolutely necessary in order to determine the merits of the suit in which the constitutionality of such statute has been drawn in question.’” (p. 164.)

In Clewell v. School District., 115 Kan. 176, 222 Pac. 74, we held:

“. . . We cannot undertake to determine a constitutional question unless it is necessary to a decision of the questions involved and the determination of the constitutionality of a statute is imperatively required. . . .” (p. 177.)

We held in State, ex rel., v. School District, 163 Kan. 650, 185 P. 2d 677:

“. . . [T]his court ought not to consider the constitutionality of the statute in any particular not necessary to a decision and that under the facts of the cause, there is no such necessity.” (Syl. f 8.)

We held in Board of County Commissioners v. Brown, 183 Kan. 19, 325 P. 2d 382:

“Acts of the legislature are presumed to be constitutional and valid and no challenge thereof should be entertained on appeal to the Supreme Court unless the particular constitutional provision alleged to be violated, or the particular controlling record to prove the invalidity, has been alleged in the pleadings and presented to the lower court.” (Syl. f 2.)

The wisdom of the decisions in Keplinger and Clewell that a situation might arise justifying an unrequested inquiry into the constitutionality of a statute is manifested by the facts presented in this case.

Article 15, Section 3 of the Kansas Constitution provides: “Lotteries and the sale of lottery tickets are forever prohibited.”

Although this constitutional provision was undoubtedly borrowed from states previously admitted to statehood, it is apparent that the framers of the constitution of this state conscientiously determined that prohibiting lotteries forever was a method of promoting a sound basis for the welfare and growth of this state. Since its adoption, many efforts have been made by persons and organizations to circumvent this constitutional provision. Such efforts have generally been made for profit, seeking to elicit money from those who cannot refrain from the instinctive weakness of humanity to gamble.

This court has steadfastly adhered to the constitutional provision by striking down such efforts. (The State ex rel. v. Mercantile Association, 45 Kan. 351, 25 Pac. 984, [distribution of prizes by chance]; In re Smith, Petitioner, 54 Kan. 702, 39 Pac. 707, [sale of lottery tickets]; The State, ex rel. v. Fair Association, 89 Kan. 238, 131 Pac. 626, [bets on horse races]; State, ex rel., v. Fox Kansas Theatre Co., 144 Kan. 687, 62 P. 2d 929, [theater bank night]; City of Wichita v. Stevens, 167 Kan. 408, 207 P. 2d 386, [punch boards]; State v. Brown, 173 Kan. 166, 244 P. 2d 1190, [punchboards]; State, ex rel., v. Bissing, 178 Kan. 111, 283 P. 2d 418, [parimutuel betting on dog races].)

It has been firmly established from these cases as the law of this state that a lottery has three essential elements; namely, (1) consideration, (2) prize, and (3) chance.

In State, ex rel., v. Highwood Service, Inc., 205 Kan. 821, 473 P. 2d 97, we held that the turning of a dial of a television set to a certain program which awarded prizes did not constitute “consideration” within the meaning of K. S. A. 21-1501 (repealed L. 1969, ch. 180) and Article 15, Section 3 of the Kansas Constitution. We also stated at page 825:

“But while the constitutional ban against lotteries may be self-executing, it is not self-defining. That function is judicial in nature, devolving upon the courts. . . .”

The essential difference between a constitution and a statute is that a constitution usually states general principles or policies, and establishes a foundation of law and government, whereas a statute must provide the details of the subject of the statute. A constitution, unlike a statute, is intended not merely to meet existing conditions, but to govern future contingencies.

Although a constitution is usually a declaration of principles of fundamental law, many of its provisions being only commands to the legislature to enact laws to carry out the purposes of the framers of the constitution, it is entirely within the power of those who establish and adopt the constitution to make any of its provisions self-executing. Our constitution put a ban on lotteries and the sale of lottery tickets in plain, unambiguous terms and emphasized the intent of the framers by the use of the language “shall be forever prohibited in this state.” Prohibitory provisions in a constitution are self-executing to the extent that anything done in violation of them is void.

It is the function and duty of this court to define constitutional provisions. The definition should achieve a consistency so that it shall not be taken to mean one thing at one time and another thing at another time. It is the nature of the judicial process that the construction becomes equally as controlling upon the legislature of the state as the provisions of the constitution itself. (16 C. J. S. Constitutional Law, § 13.) Any attempt by the legislature to obliterate the constitution so construed by the court is unconstitutional legislation and void. Whenever the legislature enacts laws prohibited by judicially construed constitutional provisions, it is the duty of the courts to strike down such laws.

The legislature, by enacting the statutes in question, attempted to declare that “consideration” shall not include money paid to participate in a bingo game. The legislature, in effect, sought to remove “consideration” as one of the elements of a lottery. In so doing, the legislature exceeded its constitutional power. The constitution must be interpreted and given effect as the paramount law of the state, according to the spirit and intent of its framers. A legislative enactment in evasion of the terms of the constitution, as properly interpreted by the courts and frustrating its general and clearly expressed or necessarily implied purpose, is clearly void.

The fact that the statute prohibits a profit to any private shareholder, member or employee of an organization exempt from tax, does not create immunity for an enterprise which violates the provisions of the constitution. We cannot insert into our constitution an exception that the framers failed to make. Their reasoning could have been in accord with Harriman Institute of Social R. v. Carrie Tingley C. C. Hospital, 43 N. M. 1, 84 P. 2d 1088 (1938), which said:

“Now the gambling spirit feeds itself with as much relish upon a charity lottery as upon any other kind. If the average person be consumed with a desire to take a chance and get something for nothing, it matters not to him whether the promoter makes a profit or that the profit goes to charity. Indeed, if it does go to charity, his participation wears a cloak of piety otherwise denied it. He thus may be persuaded to purchase tickets oftener and in larger volume because operated in the name of charity or religion. The point we seek to make is that widespread participation in a charity lottery is just as baneful in its effect upon tire public as widespread participation in any other kind of lottery. And we think it will be conceded, indeed we feel this court has said as much, that our lottery statutes sought to prevent widespread participation in any kind of lottery.” (pp. 6, 7.)

It is immaterial whether slot machines have “comparable characteristics” to bingo since bingo in the context of the statutes falls before the mandate of the constitution. Statutory provisions which attempt to legalize bingo or the use and possession of slot machines are inconsistent with our constitution.

It is not our proper function to express any opinion with respect to the moral aspects of either operators or players of bingo. We recognize that many respectable persons look upon bingo as an innocent and harmless recreation, and the benefits of bingo are frequently applied to worthwhile religious and charitable purposes.

In view of the foregoing it is our holding that the bingo exception to the gambling laws passed by the 1971 legislature is unconstitutional and void. We refer to K. S. A. 1971 Supp. 21-4302 (1) (d), and the third paragraph of K. S. A. 1971 Supp. 21-4302 ( 3).

Appeal sustained.