Lang v. Merwin

| Me. | Feb 21, 1905

Emery, J.

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 shop, scheme or device of chance of whatever name or description, whether at fairs or public gatherings or elsewhere, and whether in the interests of churches, benevolent objects or otherwise is prohibited.” It would seem from these to have been the intention of the legislature to prohibit every pecuniary transaction in which pure chance has any place. There are no words of limitation or exception. To give effect to this intention it would seem necessary to hold that the legislature has used the term “gambling” in its broadest, most generic sense, as comprehending every species of game or device of chance.

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" court="SCOTUS" date_filed="1893-01-30" href="https://app.midpage.ai/document/horner-v-united-states-93502?utm_source=webapp" opinion_id="93502">147 U. S. 449. The Austrian government issued bonds and to induce purchase of them by the public it obligated itself to pay not only the principal and interest of each bond but also such additional sum, if any, as the number of the bond might draw in a lottery established for that purpose. The fact that the purchaser of the bond presumably got full value for his money in the bond itself and did not stand to lose anything by chance, .was held by the court not to save the transaction from being a lottery. The element of lot or chance was in it and that was enough. The two cases seem alike in principle. The opinion of the court is elaborate and exhaustive, citing many cases. We deem a reference to that opinion and the cases cited therein all that is necessary by way of citation.

Decree below reversed. Petition sustained with costs. Injunction granted.