Knight v. State Ex Rel. MooreKnight v. State Ex Rel. Moore
Wayne L. Hengen, Hengen & Hengen, Biloxi, Michael Farrell, Wells Moore Simmons Stubblefield & Neeld, Jackson, Peter L. Doran, Baton Rouge, La., W.E. Gore Jr., Jackson, J. Edward Rainer, Rainer Hyche
Mike C. Moore, Atty. Gen., James L. Warren, III, Timothy L. Waycaster, Waycaster & Warren, Jackson, for appellee.
En Banc.
PRATHER, Justice, for the Court:
I. INTRODUCTION
This case involves over twenty defendants whose bingo1 operations were “shut down” because Hinds County Chancellor W.O. Dillard struck down a statute2 “exempting” bingo from a constitutional prohibition of lotteries:
No lottery shall ever be allowed, or be advertised by newspapers, or otherwise, or its tickets be sold in this state; and the legislature shall provide by law for the enforcement of this provision; nor shall any lottery heretofore authorized be permitted to be drawn or its tickets sold.
A. Factual Background
A full account of the factual background would be tedious and unnecessary; therefore, only significant events are noted.
On January 10, 1990, the Office of Attorney General (hereinafter “AG“) filed a complaint at the Hinds County Chancery Court against nine bingo operators and operations (hereinafter “operators“) seeking a declaration: (1) “that the game of bingo fits the definition of lottery“; (2) that bingo, a form of lottery, is prohibited by the Mississippi Constitution; and (3) that
On January 23, 1990, the AG filed a second complaint against eleven more operators; this and the January 10 case were consolidated. The chancellor issued a preliminary injunction against the “new” defendants.
During the next several months, the operators inundated the chancellor with numerous motions, which he denied after holding hearings. The chancellor later granted a motion to join the State Tax Commission.
Finally, on April 17, 1990, the AG filed a motion for summary judgment. On April 27, the chancellor held a hearing — after which he granted the motion and permanently enjoined the playing of bingo (this Court subsequently granted the operators’ “Motion for Stay Pending Appeal“). Numerous operators appealed.
B. Issues
Several appellants filed briefs; the remaining appellants “joined in.” Collectively, the briefs contained eighteen issues (some duplicative) which are addressed in the following Section.
II. ANALYSIS
A. The Primary Issue: Whether Bingo is a Lottery?
No lottery shall ever be allowed, or be advertised by newspapers, or otherwise,
or its tickets be sold in this state; and the legislature shall provide by law for the enforcement of this provision; nor shall any lottery heretofore authorized be permitted to be drawn or its tickets sold.
1. The Chancellor‘s Opinion
The chancellor rationalized his disposition of this issue via lengthy opinion which he rendered from the bench:
[T]he Court is well aware that there are numerous forms of bingo and it is also called by different names and described differently, but under the authorities of this state, namely, Naron v. Prestage, 469 So.2nd 83 (Miss. 1985), which cited language from Williams Furniture Company v. McComb Chamber of Commerce, 147 Miss. 649, 112 So. 579 (1927), the Supreme Court of this state defined “lottery” as: “(1) The offering of a prize; (2) The awarding of a prize by chance; (3) The giving of a consideration for the opportunity to win a prize; and all three of these elements must concur in order to constitute a lottery.”
In addition to our Supreme Court defining lottery, Webster‘s Third New International Dictionary defines “lottery” as “A scheme for the distribution of prizes by lot or chance,” and the generally recognized legal dictionary, Black‘s Law Dictionary, Fifth Edition, 1979, describes and defines “lottery” as “A chance for a prize for a price. Essential elements of a lottery are consideration, prize, and chance, and any scheme or device by which a person for a consideration is permitted to receive a prize or nothing as may be determined predominantly by chance.” In addition to those definitions, this Court cited cases from the state of Washington; the Court cited a case from the state of Iowa that held that it did not matter the name, whether it was “beano,” “keno,” “tango,” “lotto,” “screeno,” or whatever, it‘s still a game of chance and a lottery. That being State v. Mabrey, 245 Iowa 428, 60 N.W.2d 889 (1953).
And the principal case which removes any question in legal definitions or precedents is found in our sister state of Tennessee which just this past year, construing its constitution and a charitable form of bingo in the case of Secretary of State v. St. Augustine Church, 766 S.W.2d 499 (Tenn. 1989), said: “The Court recognizes that many organizations and citizens deem the game to be a wholesome form of recreation and a useful means of raising money for worthwhile charitable, fraternal, religious and educational purposes. That there are concomitant abuses to which the game is susceptible, however, is ample demonstrated in the factual record which was made before the chancellor in the trial of this case. It is a matter for determination by the voting public as to whether the lottery prohibition contained in Article XI, section 5, should be repealed or amended. This Court is firmly of the opinion, however, that the constitutional provision in its present form completely prohibits the General Assembly from undertaking to legalize or authorize the game of bingo for any commercial purpose, charitable or otherwise.”
The Court went on to state that, in their opinion, “no legislative definition of `bingo’ could remove the game as traditionally played from that form of gambling known as a lottery.” The Court affirmed the chancellor in that case. And if you take the State of Tennessee and substitute Mississippi, this Court can find not one iota of difference in either the facts or the law where the Supreme Court of Tennessee made its ruling just this past year.
So, insofar as that law is concerned, the Court is of the opinion that there is no question but that bingo as played in this case is a lottery and therefore unconstitutional, and the exemption contained in
Section 93-37-51 of the Mississippi Code of 1972 has no effect whatsoever on the question of the constitutionality as noted by the Supreme Court in the state above mentioned.So, for those reasons, the Court is of the opinion that, in addition to the activity being unconstitutional, the State would be entitled to a summary judgment in this cause and notes that the public policy and the State could suffer irreparable damages in that it could not prohibit or, in fact, as proposed in the Senate bill mentioned, license an unconstitutional activity. And, in addition thereto, the Court would have to, upon proper application, under
Section 95-3-25 , enjoin the activity as a nuisance since we all agree that it is a gambling activity and would not be authorized by law... .
2. The Bingo Operators’ Position
The operators posit that the chancellor erred because “any construction of our constitution requires an examination of the historical setting to determine the precise evil that the constitutional framers sought to prevent or remedy.” See Metro Charities’ Brief at 24. In essence, the operators believe that the framers did not intend to prohibit bingo when they drafted
The operators provide a lesson on the history of lotteries — beginning with the first known lottery authorized by Roman Emperor Augustus Caesar to help raise funds for city repairs, and concluding with lotteries in Mississippi, including the first one (in 1802) which the “Territorial Legislature” authorized to help raise funds for establishment of Jefferson College.
Lotteries in Mississippi were authorized until 1869, when they were constitutionally prohibited.
“This history makes clear that the constitutional framers intended to ban a specific form of gambling known to them as a lottery.” Metro Charities’ Brief at 29. And “[t]his is precisely the historical analysis used by the Maryland Court of Appeals in holding that bingo is not a lottery.” Id. (citing Bender v. Arundel Arena, Inc., 248 Md. 181, 236 A.2d 7 (1967)); see also Brief of Bonnie Sanders at 5 (hereinafter “Sanders’ Brief“). Specifically, the court in Bender premised that the constitutional prohibition of “lottery grants” — “considered in light of ... legislative and constitutional history and in the context of the long and by 1867 well recognized distinction in Maryland between gaming and lottery” — was “intended to mean traditional chartered ticket lotteries.” 236 A.2d at 15. The court concluded that the term “lottery“: (1) should be accorded a “more restricted, precise and technical meaning,” and (2) should be distinguished from such games of chance as bingo. Id. at 12 & 15. See Greater Loretta Improvement Ass‘n v. Florida, 234 So.2d 665 (Fla. 1970) (also holding that its constitutional prohibition of lotteries does not encompass bingo); see Sanders’ Brief at 4 (contending that the definition of “lottery” does not contemplate “bingo“) (citing D‘Alessandro v. State, 114 Fla. 70, 153 So. 95, 96 (1934)).
The operators add that this Court has distinguished between “common forms of gambling [which] are ... innocuous when in contrast with the widespread pestilence of lotteries.” Moore v. State, 48 Miss. 147, 161 (1873) (“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 preys upon the hard earnings of the poor, and plunders the ignorant and the simple.“) (quoting Phalen v. Virginia, 49 U.S. (8 How.) 163, 168-69, 12 L.Ed. 1030 (1850)); accord Stone v. Mississippi, 101 U.S. 814, 818, 25 L.Ed. 1079 (1879), cited in Metro Charities’ Brief at 30.
The operators finally cite for support the “Mississippi Gaming Control Act” — which the legislature passed after the chancellor granted summary judgment. The Act construes
[W]hile not defining the term “lottery,” Section 98 [of the Mississippi Constitution] clearly contemplates, as indicated by specific language contained therein, that a lottery involves the sale of tickets and a drawing in order to determine the winner... . [I]n carrying out its duties under the Constitution and effectuating the intent of Section 98, the Legislature hereby finds that a lottery, as prohibited by the Constitution, does not include all forms of gambling but means any activity in which:
(a) The player or players pay or agree to pay something of value for chances, represented and differentiated by tickets, slips of paper or other physical and tangible documentation upon which numbers, symbols, characters or other distinctive marks used to identify and designate the winner or winners; and
(b) The winning chance or chances are to be determined by a drawing or similar selection method based predominantly upon the element of chance or random selection rather than upon the skill or judgment of the player or players; and
(c) The holder or holders of the winning chance or chances are to receive a prize or something of valuable consideration; and
(d) The activity is conducted or participated in without regard to geographical location, with the player or players not being required to be present upon any particular premises or at any particular location in order to participate or to win.
Miss. HB 2, § 2(6)(a)-(d), 1st Extraordinary Sess. (1990) (emphasis added).
In sum, the operators contend that this Court should peruse the history of lotteries in order to comprehend the framers’ intent when they drafted
3. The AG‘s Position
The AG posits that, “[c]ontrary to [the operators‘] assertion, Section 98 prohibits any and all lotteries by whatever name.” AG‘s Brief at 23. And bingo, according to the AG, is “substantially similar in many respects to ... so-called traditional lotteries.” Id. The AG adds that the similarity is particularly evident in light of this Court‘s opinion in Williams Furniture Co. v. McComb Chamber of Commerce, 147 Miss. 649, 112 So. 579 (1927). In Williams Furniture Co., some merchants challenged a marketing-promotional scheme sponsored by other merchants and the McComb Chamber of Commerce through which participating merchants gave numbered tickets to customers who purchased goods worth at least $1.00 or who made a payment of at least $1.00 on their store account. Customers, whose ticket numbers matched the numbers on the “prize tickets” drawn on a weekly basis, won cash prizes. The plaintiff-merchants contended that the scheme constituted a form of lottery, but the chancellor disagreed. On appeal, this Court affirmed after noting the absence of the essential element of consideration:
Three essential elements are necessary to constitute a lottery: (1) The offering of a prize; (2) the awarding of a prize by chance; (3) the giving of consideration for the opportunity to win the prize; and all three of these elements must concur in order to constitute a lottery. The offering and the award of a prize by chance are not sufficient. There must be added, in order to make it a lottery, that the prize winner give a consideration for the opportunity to win the prize.
147 Miss. at 655-57, 112 So. at 579-80.
Finally, the AG explains at length that the “overwhelming majority of other states
In sum, the AG suggests that this Court should look to the plain meaning of
4. Disposition
To recap, the operators premise that their “comprehension” of the framers’ “original intent” leads them to conclude bingo is not a lottery, whereas the AG premises that the “weight of authority” leads him to the contrary conclusion.4
This Court declines to adopt either of the parties’ premises, but concurs in the operators’ conclusion.
(a) The Operators’ Premise: A Critical Assessment
Our Constitution — any constitution — is a document presumed capable of ordering human affairs decades beyond the time of its ratification under circumstances beyond the prescience of the draftsmen. We should read and enforce the Constitution in the manner which best fits its language, is most consistent in principle with the best justification which may be given for that language, and which best serves our state today.
Burrell v. Mississippi State Tax Comm‘n, 536 So.2d 848, 854-55 (Miss. 1988) (citations omitted). Constitutions must be read objectively — if possible. Thus, this Court asks what the language means, not what the framers intended. Cf. O.W. HOLMES, COLLECTED LEGAL PAPERS 207 (1920), quoted in Mississippi Ins. Guar. Ass‘n v. Vaughn, 529 So.2d 540, 542 (Miss. 1988).
The case sub judice involves a legislative construction of
(b) The AG‘s Premise: A Critical Assessment
Close scrutiny of the opinions of the “weight of authority” reveals its employment of “loopified” or circular reasoning — which amounts to nothing more than unacceptable ipse dixitism or dogmatism. Van Doren & Bergin, Critical Legal Studies: A Dialogue, 21 NEW ENGLAND L.REV. 291, 296 & 299-300 (1985-86). Restated, courts in other jurisdictions have generally reasoned that bingo is a lottery simply ”because that‘s what other courts have concluded.” In short, most courts which have addressed the issue have merely cross-referenced one another for authoritative support. See, e.g., Secretary of State v. St. Augustine Church, 766 S.W.2d 499, 501 (Tenn. 1989) (“In almost every state having [a constitutional] provision [prohibiting lotteries], the game `bingo’ ... has been held to constitute a `lottery.‘“); accord Bender v. Arundel Arena, Inc., 248 Md. 181, 236 A.2d 7, 11 (1967) (“Most states have held ... bingo to be [a] lotter[y], finding that they combine the classic elements of a lottery.“). This Court cannot in clear conscience blindly concur in the conclusion that bingo is a lottery simply because other courts have so concluded. Cf. O.W. Holmes, Jr., The Path of the Law, 10 HARV.L.REV. 456, 469 (1897) (“It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if ... the rule simply persists from blind imitation of the past.“); see also Van Doren & Bergin, supra, at 299-300 (“Reason can only help you get from point A to point B. But where did point A come from?“) (citing D. HOFSTADTER, GODEL, ESCHER, BACH, AN ETERNAL GOLDEN BRAID 23-24, 229-30 (1979)).
(c) An Acceptable Premise
This Court believes it should look to the popular meaning of “lottery” and “bingo” in order to determine whether the terms are one and the same or sufficiently similar to justify striking down
Accordingly, this Court has perused dictionaries and other sources (e.g., experience) in search of the “popular” meaning of “lottery” and “bingo.” Both games unquestionably inhere the elements of chance, consideration, and prize; however, this premise alone does not lead to the conclusion that both are one and the same. Indeed, the game of poker inheres the elements of chance, consideration, and prize. Does this mean that poker is a lottery? The AG contends (as does the “weight of authority“) that any game which inheres the three elements is a lottery; therefore, the AG presumably would conclude that poker is a lottery. Indeed, under this broad definition, the stock market, life insurance, and other business enterprises involving the three elements could be deemed a lottery. Such logic seems no less absurd than that which equates a horse, dog, and cat with one another simply because each specie has four legs, two eyes, and one tail.
The absurdity stems from the unexplained recognition that the term “lottery” should be deemed the generic “umbrella” which encompasses any game (or business enterprise?) inhering the three elements. This Court is unconvinced that the term
(d) Summation
In sum, disposition of this case is not reached by purporting to know what the framers intended nor by utilizing Pythagorean logic. Instead, this Court concludes that, pursuant to the “popular” meaning of the terms, bingo is not a lottery. This Court‘s conclusion is reinforced by the structure and wording of
Therefore,
B. Remaining Issues
The remaining issues have been deemed moot or devoid of merit and do not warrant discussion. Therefore, the chancellor‘s decision is affirmed on these issues.
III. CONCLUSION
Based upon the foregoing, this Court holds that bingo is not a lottery prohibited by the constitution. Therefore,
Finally, this Court notes that the bingo-exemption statute is drafted with vague language and allows for manipulation and abuse by corporate entities or individuals who falsely purport to operate the games for the benefit of “nonprofit civic, educational, wildlife conservation or religious organization.” Strict guidelines and enforcement measures via legislation is needed to avert further personal profiteering and circumvention of the statute‘s purpose.
REVERSED AND RENDERED AS TO THE ISSUE OF THE CONSTITUTIONALITY OF
AFFIRMED AS TO THE REMAINING ISSUES.
DAN M. LEE, P.J., and ROBERTSON, SULLIVAN, ANDERSON and BLASS, JJ., CONCUR.
ROY NOBLE LEE, C.J., dissents by separate written opinion, joined by HAWKINS, P.J., and PITTMAN, J.
ROY NOBLE LEE, Chief Justice, dissenting:
I respectfully dissent from the majority action upholding
Virtually all jurisdictions which have addressed the issue have concluded, without equivocation, that bingo inheres the elements of a lottery and, thus, bingo is a lottery prohibited by their state constitutions. Accord Secretary of State v. St. Augustine Church, 766 S.W.2d 499, 501 (Tenn. 1989) (“In almost every state having [a constitutional] provision [prohibiting lotteries], the game `bingo’ ... has been held to constitute a `lottery.‘“); Bender v. Arundel Arena, Inc., 248 Md. 181, 236 A.2d 7, 11 (1967) (“Most states have held ... bingo to be [a] lotter[y], finding that they combine the classic elements of a lottery.“); 54 C.J.S. Lotteries § 7, at 489 (1987) (“[I]t is generally held that `bingo’ ... or the like is a lottery.“).
A neighboring jurisdiction recently decided a case whose facts are analogous to those in the case sub judice. In Secretary of State v. St. Augustine Church, a chancellor struck down a statute which exempted “charity bingo” from a constitutional prohibition against lotteries. 766 S.W.2d 499 (Tenn. 1989). The section of the Tennessee Constitution upon which the chancellor premised is strikingly similar to our own, providing that:
The Legislature shall have no power to authorize lotteries for any purpose and shall pass laws to prevent the sale of lottery tickets in this State.
In addition to Tennessee, an overwhelming number of other states have declared that bingo is a lottery prohibited by their respective constitutions. See, e.g., Army Navy Bingo, Garrison # 2196 v. Plowden, 281 S.C. 226, 314 S.E.2d 339, 340 (1984); see also St. John‘s Melkite Catholic Church v. Commission of Revenue, 240 Ga. 733, 242 S.E.2d 108 (1978); State v. Crayton, 344 So.2d 771, 774 (Ala. Civ. App.); cert. denied, 344 So.2d 775 (Ala. 1977); State v. Amvets Post Number 80, 541 S.W.2d 481, 482-83 (Tex.Civ.App. 1976); Otto v. Kosofsky, 476 S.W.2d 626, 628-29 (Ky. App. 1972); State v. Nelson, 210 Kan. 439, 502 P.2d 841, 847 (1972); cited in State v. Kennedy, 225 Kan. 13, 587 P.2d 844, 851 (1978); State v. Safeway Stores, Inc., 75 Wash.2d 339, 450 P.2d 949, 953-57 (1969); State v. Mabrey, 245 Iowa 428, 60 N.W.2d 889, 892-93 (1953); Society of Good Neighbors v. Van Antwerp, 324 Mich. 22, 36 N.W.2d 308, 309 (1949); State v. Multerer, 234 Wis. 50, 289 N.W. 600, 603-04 (1940). In the face of such authority, I find the majority‘s holding that bingo is not a lottery to be both unpersuasive and disingenuous.
Clear research reveals that the term “lottery” has “no precise, technical meaning,” but has traditionally been defined as involving the three elements of consideration, chance, and prize. See Greater Loretta Improvement Ass‘n v. State, 234 So.2d 665 (Fla. 1970); see also St. Augustine Church, 766 S.W.2d at 500-01 (The term is one of “general usage and is neither arcane nor obscure in meaning.“). The definition delineated by this Court nearly sixty-four years ago in Williams Furniture Co. is in sync with the term‘s definitional “tradition” or its “general usage” and should be reaffirmed in the case at bar.
Forceful precedent dictates that bingo is prohibited by
For the reasons stated above, I dissent from the majority.
HAWKINS, P.J., and PITTMAN, J., join this opinion.
Notes
The provisions of this chapter shall not apply to any bingo game or to any raffle wherein a ticket is sold and a prize is offered, when such bingo game or raffle is being held by and for the benefit of any nonprofit civic, educational, wildlife conservation or religious organization with all proceeds going to said organization.