99 Me. 486 | Me. | 1905
The defendant had in his cigar store a slot machine of the kind, and operated in the manner, described in the finding of facts by the justice of the first instance. It is agreed by the parties that if using the machine in the manner described constituted “gambling” in the statutory sense of the word, then the defendant’s cigar store was resorted to for “gambling” within the purview of the statute upon which this petition in equity is based, (R. S., ch. 22, § 1.)
The word “gambling” as a legal term has been variously defined by courts and legal authors. By some of these definitions both parties to the transaction in question must stand to lose by chance as well as to win. Judged by these definitions the transaction in this case does not constitute gambling, since the operator does not stand to lose anything by chance but only to win. By other definitions, however, it is not essential that both parties should stand to lose by chance; it is enough if one party stands to lose, or to win by chance. If such be the statutory meaning of the term then the transaction described does constitute gambling since the operator stands to win something by chance, and the cigar dealer to lose by chance. In view of the conflict of authority the justice of the first instance dismissed the petition, practically pro forma, that the case. might have upon appeal an authoritative determination. Our task now is to ascertain in what sense, the narrow or the broad, the word “gambling” was used by the legislature in enacting this statute.
Aid in determining the sense in which the legislature used a given term in one chapter or section of its statutes may often be obtained by considering the language of other chapters and sections upon the same or kindred subjects. Referring to the Chapter entitled “Gambling,” (R. S., 126, § 1), we find that every person is forbidden to “permit any person to gamble in any way in any house, shop or place under his care or control.” Referring to the Chapter entitled “Offenses against the public health, safety and policy,” (R. S., ch. 129), we find in § 20 that “ every lottery, policy, policy lottery, policy
In the case before us it is idle to assume, or concede, that the person putting his five cents into the machine may be doing so merely as a means or mode of buying a five cent cigar. It is idle to deny that the impelling motive is the hope of getting other cigars for nothing. If the machine did not afford that chance it would not be used. True, the cigar dealer sets up the machine to increase his trade and is recouped by that increase for any losses, so that in the end he loses nothing, but he does so by arousing and stimulating the gambling propensity, the very propensity the legislature evidently seeks to repress. The element of chance is the soul of the transaction. The operator hopes by chance to get something for nothing. The dealer hopes chance will save him from giving something for nothing. Each is pecuniarily interested adverse to the other in a result to be determined solely by chance. To use the language of the street “it is a gamble” which will win, and we have no doubt the transaction is “gambling” in the statutory sense of the word.
If authority for this conclusion is needed, it is not wanting. In State v. Willis, 78 Maine, 70, in speaking of an advertisement alleged to be of a lottery, this court said: “ However disguised by indirect or deceptive expression, the paper as a whole discloses a lottery. If it were not so readers would not become buyers.” So in the case at bar, however disguised the scheme or device, its essential element is that of affording a chance to get something for nothing. If it were not so visitors to the store would not use it. A like case in principle is Horner v. United States, 147 U. S. 449. The Austrian government issued bonds and to induce purchase of them by the
Decree below reversed. Petition sustained with costs. Injunction granted.
