41 Del. 587 | Del. | 1942
This case involves the construction of the Delaware Racing Statute.
Section 17 of Article 2 of the Constitution of the State originally provided:
“The sale of lottery tickets, pool selling and all other forms of gambling are prohibited in this State. The General Assembly shall enforce this Section by appropriate legislation.”
By an amendment, which became effective in 1935, (Chapt. 2, Vol. 38, Laws of Delaware; Chapt. 1, Vol. 40, Laws of Delaware), the same section now provides:
“The sale of Lottery Tickets, pool selling and all other forms of gambling are prohibited in this State; except wagering or betting on races at race tracks by the use of pari-mutuel machines or totalizators in connection therewith.
“The General Assembly shall enforce this Section by appropriate legislation.”
Under that Section “wagering or betting on races at race tracks by the use of pari-mutuel machines or totalizators in connection therewith” is, therefore, expressly excepted from the general constitutional prohibition against
Consequently, the General Assembly enacted Chapter 62, Volume 38, Laws of Delaware, usually known as the Racing Statute. That Act, as amended February 6th, 1935, by Chapter 112, Volume 40, Laws of Delaware, is incorporated in Chapter 163 of the Revised Code of 1935. It provides for the regulation, control and licensing of horse racing in the State of Delaware, for the creation of a Racing Commission, and prescribes its powers and duties. Section 5510 of the Revised Code, now Section 15 of the Racing Act, as amended by Chapter 112, Volume 40, Laws of Delaware, is the important section. It provides:
1. “Within the enclosure of any horse race meeting licensed and conducted under this Chapter, but not elsewhere, the wagering or betting on horse races by the use of pari mutuel machines or totalizators is hereby authorized and permitted.”
2. “The Delaware Racing Commission shall have power in its discretion, to grant a license or licenses to any person, firm or corporation, to make, conduct and sell pools by the use of pari mutuel machines or totalizators, for the purpose of receiving wagers or bets on horse races within the enclosure of any race meeting licensed and conducted under this Chapter, but not otherwise, under such regulations as the Commission shall prescribe.”
3. “The Commission shall have power to prescribe regulations governing the granting of applications for licenses, the granting of licenses, and the conditions under which any licensee may conduct, sell or make any such pool.”
4. “The Delaware Racing Commission may authorize*593 commissions on pari-mutuel or totalizator pools to the person, firm, or corporation operating the race meet, provided, however, that in no event and at no track licensed under this Chapter shall said commissions, when added to the amount payable to the Delaware Racing Commission from such pools, for the use of the State of Delaware, exceed six per cent of the total contributions to all pari mutuel or totalizator pools conducted or made upon any track, plus the odd cents of all redistributions to be made on all pari mutuel or totalizator pool contributions exceeding a sum equal to the next lowest multiple of five”.
The real controversy relates to the precise meaning of that part of the statute which authorizes the Racing Commission to permit the deduction of commissions “on pari mutuel or totalizator pools”, not exceeding 6% “of the total contributions to all pari mutuel or totalizator pools conducted or made upon any track, plus the odd cents of all redistributions to be made on all pari mutuel or totalizator pool contributions exceeding a sum equal to the next lowest multiple of five”.
The Delaware Steeplechase and Race Association, the plaintiff in error, is a licensee of the State Racing Commission; but does not use pari mutuel machines at Delaware Park. It receives wagers and conducts pools on the various races run by means of a totalizator. The mechanism used is somewhat different from that of the pari mutuel machines, but the basic principle of the system is the same, namely: “through the method of placing all wagers on a particular event in a common pool, the net proceeds of which, after deducting certain authorized expenses and charges, are divided among the successful bettors on an equal basis, i. e., in proportion to the amount of their respective bets”. In theory, therefore, whether a pari mutuel machine or a totalizator is used, all money “staked by backers
The display board, heretofore mentioned as a part of the totalizator now used, is erected in the infield, and gives information only as to the amount payable on $2.00 win
On May 29th, 1940, Wise wagered the sum of $5.00 at Delaware Park, by a single ticket, that a horse named “Bucking” running in the fifth race would “show”; that he would finish either first, second or third; “Bucking” was one of the first three to finish that race. As a holder of a winning ticket for $5.00, Wise was, therefore, enitled to his proper proportion of the show pool on that horse. The precise details of the whole calculation are unimportant. But it appears that each $1.00 wagered in that pool was entitled to receive $1.26 on the pay-off. That amount was not divisible by five; so, applying the old customary method of calculating and deducting “breakage”, one penny was deducted before any multiplication was made, and was retained by the Race Association. Under that rule, the balance of $1.25 multiplied by five would indicate that $6.25 was due Wise
The statute provides for the deduction of “breakage”, though it does not use that term; but the real question relates to the method of calculating it, and whether a general established usage can play a part in ascertaining the meaning of the language used. The real difference between the parties, as to the computation of breakage, is that under the method used by the Association it is deducted on the basis of each dollar bet, or five times on a $5.00 ticket; while, under the contention of Wise, it should be deducted according to the amount of each ticket purchased and contribution made. Wise, also, claims that as $6.30 is divisible by five, no breakage, whatever, can be deducted in this case.
Like other written instruments, ordinarily, the meaning of either a constitutional or a statutory provision must be ascertained from the language used. When, however, any such instrument is couched in ambiguous and uncertain language, pertinent, extrinsic, explanatory evidence may be frequently considered to aid in ascertaining its real intended meaning. Cooley Const. Lim. 141; 2 Lewis’ Sutherland Stat. Construct., 2nd Ed., Sec. 473; Carter v. Liquid Carbonic, etc., Cory. (9 Cir.) 97 F. 2d 1. This is particularly true when technical words are used. 2 Lewis’ Sutherland Stat. Const., Sec. 393; 59 C. J. 979; Douglas v. Edwards, (2 Cir.) 298 F. 229. The Race Association relies on that general rule. It claims that in construing the statutory language in controversy we must bear in mind that the compound word “pari mutuel” is a technical term which designates not only a system of betting, but, also, prescribes and
The statute, permitting the pari mutuel system of gambling, in clear and explicit language, provides for a form of breakage to be deducted by the Race Association, somewhat more favorable to the betting public than the old customary method. The language used requires no explanation.
A “pari-mutuel or totalizator pool contribution” is the amount wagered by a particular ticket; a “redistribution” is the pay-off to the various holders of winning tickets, entitled to share in the pool. Both parties, perhaps, necessarily make-their primary calculations on the
The Court Below aptly pointed out that “a wager of $5.00 is a contribution of that amount to the pool, and no casuistry can make five $1.00 wagers out of one $5.00 wager”. The few decided cases, construing somewhat similar statutory provisions, support this conclusion. Feeney v. Eastern Racing Ass’n, Inc., 303 Mass. 602, 22 N.E. 2d 259; Ballin v. Los Angeles County Fair, 43 Cal. App. 2d Supp. 884, 111 P. 2d 753.
Apparently, the Delaware Steeplechase and Race Association does not directly question, on constitutional grounds, the validity of any part of the Racing Statute, under which it operates. It contends, however, that the real meaning of the technical, and, therefore, ambiguous word “pari mutuel”, as used in Section 17, as amended, of Article 2 of the Constitution, is necessarily explained by the various customary usages, which were concomitants of the system long before the enactment of that section. It claims that such general usages are of a basic nature, composing an inherent part of that system of betting, and are not mere administrative details, accompanying its operation. Applying the principle, that a statutory enactment is always presumed to be in accord with the Constitution (Collison v. State, 9 W. W. Harr. (39 Del.) 460, 2 A. 2d 97, 119 A.L.R. 1422), the Association, therefore, draws the conclusion that the meaning of the word “pari mutuel”, applied to the word “pools” in the statute, is, necessarily, explained by the real meaning of the same word in the Constitution.
The Constitution now permits legislation, authorizing betting on races “by the use of pari-mutuel machines or totalizators in connection therewith”. It is agreed that no
Generally speaking, perhaps somewhat the same rules that are applied to aid in construing an ambiguous statute are, also, applied in construing an ambiguous constitutional provision. Cooley’s Const. Lim. 141; 16 C.J.S., Constitutional Law, §§ 15, 29. Conceding that the various customary usage has accompanied the operation of the sysrecognized almost from the very beginning of the operation of the pari mutuel system, it does not follow that they are real essential elements of it. They were, apparently, adopted in part to facilitate speed in making calculations, and in part for the benefit of the promoters of the race, to aid them in procuring prizes, and otherwise. The deduction of “breakage” and a particular method of calculating it would merely be details of an administrative nature, and, ordinarily, would hardly be material functions of the system contemplated by the Constitution. That system of wagering would remain the same as one assuring practical fairness and equality if no breakage, whatever, were allowed. A question of intent is involved, and the fact that a particular customary usage has accompanied the operation of the system since its very beginning does not, necessarily, make it such an essential part thereof that the old customary method, or in fact any method, of deducting breakage must be provided for in any authorized legislative enactment. The primary function of a Constitution is to establish fundamentals rather than to regulate details.
Literally, the word “pari mutuel” means mutual stake or wager. Webster’s Dictionary, Ref. Hist. Ed.
The judgment of the Court Below is affirmed.