74 Md. 565 | Md. | 1891
delivered the opinion of the Court.
The plaintiff in error, Calvin Long, was indicted in the Criminal Court of Baltimore for violating the Act of Assembly of 1886, chapter 480, which has been codified as- ' section 185 of Article 21 of the Code, and which reads as follows :
“No person or body corporate shall he permitted, either directly or indirectly, by agent or otherwise, to barter, sell, trade, or to offer for barter, sale or trade, by any publication, or in any way, any wares, goods or merchandise of any description, in package or bulk, holding out as an inducement for any such barter, sale or trade, or the offer of the same, any scheme or device by way of gift enterprises of any kind or character whatsoever.”
The indictment contained two counts — the first charging that the said Long unlawfully sold certain merchandise, holding out as an inducement for such sale, a. certain scheme and device, by way of gift enterprise; and the second, that he kept a certain place or house for the purpose of selling lottery tickets. At the trial the State abandoned the second count, relating to the sale of lottery tickets, and elected to stand upon the first count. The plaintiff in error then demurred to the indictment upon the ground that the Act of Assembly of 1886, chapter 480, codified as above mentioned, upon' which the first count is based, is void. This demurrer was overruled, and, having been duly tried and convicted, said Long appealed to this Court from the rulings of the Criminal Court as to the admissibility of certain testimony. Long vs. State, 73 Md., 527. We affirmed the ruling of the lower Court and remanded the case for further proceedings. A final judgment having been entered a writ of error was sued ont, assigning a number of errors. All of them, however, present the same question, namely, whether the Act referred to is a valid exercise of legislative power.
It would unduly prolong this opinion to review the man} cases referred to upon the briefs. All of those relied upon by the State are cases in which there was an indictment under the laws prohibiting lotteries, and in which it was held the several devices or contrivances adopted involved chance. The case of People vs. Gillson, 109 N. Y. Rep., 389, is the one chiefly relied upon by the plaintiff in error. We will consider it presently.
In Hull vs. Ruggles, 56 N. Y. Rep. 424, the exigency of the case required the Court to determine and define what is a lotteiy, and they laid down this definition : “ Where a pecuniaiy consideration is paid, and it is determined by lot or chance, according to some scheme held out to the public, what and how much he who pays the money is to have for it, that is a lottef3.” Worcester’s definition is : “A game of hazard in which small sums are ventured for the chance of obtaining greater value. ”
An examination of the many cases on this subject will show that it is very difficult, if not. impossible, for the most ingenious and subtle mind to devise any scheme or plan, short of a gratuitous distribution of property, which has not been held by the Courts-of this country to be in violation of the lottery or gaming laws in force in the various States of the Union.
In the case of Yellow-Stone Kit vs. State, 88 Ala., 196, (1888,) the Court uses this language: “If the distribution is a pure gift or bounty, and not in name or pretence merely, which is designed to evade the law, — if it be entirely unsupported by any valuable consideration moving from the taker, — there is nothing in this mode of ■ conferring it which is violative of the policy of our statutes condemning lotteries or gaming.”
It is apparent, however, that the giving away of property without consideration, whether by lot or otherwise is not in itself an evil, and certainly not such an evil as requires prohibition by law at the present day.
The case referred to — that of the People vs. Gillson, decided by the Court of Appeals of New York iii 1888— arose upon the question of the validity of an Act of the Legislature of that State, which provided that: “No person shall sell, exchange or dispose of any article of
“This’ law," says the New York Court, “interferes with the free sale of food, for the condition is imposed that no one shall sell food, and at the same time, and as part of the transaction, give away any other thing."
These remarks apply with great force' to our own Act, which prohibits, as we have seen, in connection with any sale of goods, wares or merchandise, “any- scheme or device by way of gift enterprises of any hind or character tohatsoever."
This broad and sweeping language would seem to include not only a lottery in which a valuable consideration is given for the chance to win a prize, but also a gratuitous distribution not involving the element of chance. The words “gift enterprises," so far as we have ascertained, have never been judicially defined. ,
. The Century Dictionary gives the only definition of the words we have been able to discover, as follows: “A business, as the selling of books or works of a~t, the publication of a newspaper, etc., in which presents are given to purchasers as an inducement."
It was contended on the part of the State that the Act o.f 1886, comes within the legitimate exercise of the police power, and that “gift enterprises " is a species of lottery, because the distribution in all gift enterprises is depen
But the Act in question goes further, and in effect, as we construe it, declares, as did the New York statute, which was held invalid in the case referred to, that no person shall give away any thing toa purchaser of goods, wares or merchandise, as an inducement to make the purchase.
Such a regulation of trade is’ in our opinion, not only unwise, but. unlawful, and unlawful because it is necessary neither for the health, safety, nor welfare of the people, and which in its operation, would he oppressive and burdensome. People vs. Gillson, 109 N. Y., 389; Matter of Application of Jacobs, 98 N. Y., 98; Butchers’ Union Co. vs. Crescent City Co., 111 U. S., 746; Toledo, W. & W. R. W. Co. vs. City of Jacksonville, 67 Ill., 46.
It must always be conceded, of course, that the State can, through its Legislature, by the legitimate exercise of its police powers pass “laws and regulations necessary for the protection of the health, morals, and safety of society;” Singer vs. State, 72 Md., 466; yet such regulations must be reasonable, and “what are reasonable regulations, and what are subjects of police power, must be necessarily judicial questions.” Toledo, W. & W. R. W. Co. vs. City of Jacksonville, 67 Ill., 40.
It follows that the Act of 1886, ch. 480, by reason of its general terms, including as it does all gift enterprises, those involving the element of chance, as well as those that do not, is invalid so far as it relates to gift enter
Judgment reversed, and cause remanded.