*1 341 P.2d 117; principle bene- general is a “It right trust in a charitable have ficiaries BOARD, COUNTY FAIR Cassia ONEIDA trust a suit enforce the to maintain Board, County County Fair Jerome Fair Hansen, Board, individual, and Joe an Pe prevent fund.” of the trust diversion titioners, A.L.R. 881. S.L.1963, duties enlarged the Ch. SMYLIE, E. Governor of the Robert attorney general of the of this state Idaho, Respondent. enforcing encompass obligation No. 9336. charitable trusts. Supreme Court of Idaho. municipal cor-
It is generally held that Sept. 26, 1963. poration may property hold administer germane to the trusteeship trust if the is Rehearings Denied Nov. 1963. objects its municipality and within general powers. 54 104 Trusts § Am.Jur.
119; 33, 466; p. Annot. Charities § C.J.S. city
Moscow, Idaho), authorized and em- ordinances;
powered “To to enact
provide government for erection and necessary useful or for the buildings ** city,”
use and also: “To
provide regulate pro- recreational levy
grams special and to and collect a tax ** City
therefor of Moscow accept, thus regulate, authorized to
administer the trust. judgment and decree of the trial
court is affirmed. respondents.
Costs to
KNUDSON, J., McQUADE, C. SMITH, JJ., concur.
TAYLOR
Elam, Burke, Evans, Jeppesen Boise, & Oneida, County Fair Cassia and Jerome Boards.
Clemons, Green, Boise, Skiles & for Joe Hansen. *3 Gen, Shepard, Atty.
Allan G. Michael Boise, Southcombe, Atty. Gen, Asst. respondent. SMITH,
McFADDEN Justices. Cassia, county Oneida, fair boards of Chalfant, Z. Reed Millar and Frank E. counties, Hansen, a. Jerome Joe *4 Boise, Sr., amici curiae. quarter breeder, petitioned a writ horse for respondent compel to Governor mandate appoint Idaho Horse
to members of the required Committee, by Idaho> Racing designated therein: c. Sess.Laws paid to by the amounts to Act,” and here- od Racing as the “Idaho Horse computed. All patrons are as the Act. successful referred to inafter sometimes out paid system paid money the into mandate was issued. An alternative writ of per- patrons except for a small to the response to the alternative writ re- fair by and centage the state retained by spondent his return acknowl- Governor aon Odds pursuant to the act. board providing edged enactment of the law for only particular determined horse are appointment and creation of the Committee paid such money the amount by him, of its members and that he refuses comparison by patrons to horse appoint to the members of such Committee. horses in the race. respondent As for his refusal Gov- grounds successfully to determine “In order urges creating such ernor that the Act Com- race, patron the outcome of authorizing mittee and co- and must take into consideration on horse races is an following factors: ordinate the attempt authorize a violation horse, previous number of starts of Idaho wins, in current its order of finish its which is: seasons, pre- total preceding legislature shall not authorize it; breeding, purses won its vious enterprise any lottery gift under sex, in its age covered distance pretense any purpose for what- races, most recent in which time ever.” completed, the course was the time track, winner, the condition provides licensing The Act called, weight carried, the stretch participants individual Committee of condition, length behind the wind persons holding meets leader, post, post the official finish meets, exempts fair such boards and position, type num- of race and the requirement. from the license fair districts starters, jockey, together ber of The Act also a licensee to con- authorizes his record concerning with information pari-mutuel system wagering duct the at weight. The track furnishes meets, and declares the use of such race patrons. The track to its information system not to be unlawful. race groups horses in each in addition permitted so is described The wagering ability.” proven according their petition follows: ** prohibit That the Constitution does pari system a mutuel parties. questioned gambling is not meth- term of art for the mathematical *5 346 514,
They 387; not contend wagering do on a 290 P. Rich State ex rel. v. Idaho race is violative Company, Constitution. Power 346 81 Idaho Respondent urge 596, 603; Koehler, Berry does the enactment P.2d 84 Idaho v. 1963, 64, 170, designated 177, 1010, 1013; c. of Idaho Sess.Laws 369 Utah State P.2d Act”, Racing Green, 251, “Idaho is an as the Horse Fair Ass’n v. 68 Utah 249 P. attempt 1016; lottery authorize a City to violation State ex rel. Martin v. of Kan- 3, 870, of Idaho Art. 20. City, sas 181 Kan. P.2d 806. § 317 Village City, In State v. of Garden 74 proceeding sole in this issue is not 513, 328, Idaho holding 265 P.2d that the system conducting whether operation of slot machines constituted a provisions wagering under the of the Act lottery, Court referred to Idaho Con- oper- gambling, constitutes but whether stitution, and, 3, quoting 20 after § ation of such a 18-4901, I C. stated as follows: § meaning horse races ais within the prohibition. of the constitutional lottery, “This definition I.C. [of in substance conforms to 4901] 18— presumed legislative A act is to be the common law which has that of de- to constitutional and all reasonable doubt as species gaming, fined a as a constitutionality its must be resolved prizes wherein are distributed validity. Enking, favor of its v. Robinson persons among paying chance a con- 603; 24, 58 Niel Idaho 69 P.2d Eberle v. win; sideration chance to for the son, 572, 1083; 78 Idaho P.2d Noble 306 paid game of hazard in which sum: are 903; v. Bragaw, 12 Rich Idaho 85 P. larger for the chance obtain a value 432; Williams, v. P.2d 81 Idaho 341 money or articles. Padgett Williams, 82 Idaho 350 P.2d gambling. are To “All lotteries con- 353; 254, 371 Williams, Caesar v. 84 Idaho lottery, distinguished from stitute a P.2d 241. gambling, other methods or forms are generally held there three constitutionality statute elements, namely, essential con-' to be determined without reference to the prize. sideration and When these economic, equitable, or moral effect present, the scheme three elements statute, policy since such are matters of 2 is a Lotteries § exclusively legislature. for the State v. C.J.S. 845; (a), p. 3.” Sec. Dingman, 760; Am.Jur. 37 Idaho P. Capital Lukens, ex rel. Co. 48 Idaho Inv. question Petitioners the conclu- do 527; They Holder, City P. State v. 49 Idaho sion reached in the case. Garden proposed Con- prizes originally Idaho As agree the distribution alone, Convention, Art. 20 of stitutional slot the result machines is adroitness, manage- proposed read: constitution skill, no Idaho’s and that part affect operator can ment on legislature not authorize shall operation They distinguish the result. chance, lottery gift en- *6 by system wagering of the of terprise pretense under or for being player, asserting that the or better — sup- purpose (Emphasis whatever.” operator system furnished the plied.) breeding, concerning with information the proceedings off Constitutional Con- the horses, experience training and the of vention, Vol. Constitutional Con- 2, Idaho ability the weight, experience of vention, Debates, pp. 1248- Proceedings and jockey can, by his own exercise of skill — phrase, “game of show forecast, judgment, degree some chance”, proposed first contained certainty, of the outcome of the race discussion, was, after section of the article place accordingly. his can bet Petitioners proceedings therefrom. Those eliminated acknowledge predict that the cannot better prove conclusively our that the framers of specific of re- amount reward to be “lottery” distinguished from Constitution horse, winning should ceived he choose the chance”; they “game would of otherwise early being particularly true phrase “game not have deleted the betting, stages of the odds de- since the are chance”. pendent upon the and amounts of number over Legislature enacted this law placed patrons upon same bets respondent veto a vote Governor’s or other horses entered in the race. majority. required excess two-thirds In determining the issue before us Legisla- Undoubtedly the members proper proceedings it is to consider the many cognizant decisions ture were interpret Convention to Constitutional regarding of the courts of other states provision nearly of the Constitution as doubt no definition “lotteries” were possible objects and consonant with the by the reached influenced conclusions contemplated have purposes great its majority at the time of of the courts which upon question. ruled adoption. Baldridge, Williams v. 48 Idaho Wright 203; Callahan, P. from decisions Appropriate quotations 961; Hansen, Idaho Higer 99 P.2d provi- which, constitutional states under 411; Village 67 Idaho 170 P.2d State v. to Idaho sions similar question whether City, supra. ruling of Garden on horse not whether it contains an element of skill, within the mean- or element races constitutes but prohibi- particular constitutional chance the ing dominating element which lotteries, game.” set tion hereinafter determines the result of the out. Continuing, Court, quoting the Arizona Gupton, from State v. stated: 30 N.C. Arizona. true, ‘It is that in these latter in- ques- Arizona ruled While has superiority stances of skill is not al- tion, appear its constitution does not to con- ways race is not successful —the provision; prohibi- tain such a rather its necessarily to the swift. Sometimes Ariz.St., R.C.1928, 4676, by statute, tion is oversight, an to which the most skilful in effect declares as unlawful a lot- subject, gives adversary an the ad- device, tery scheme raffle. unexpected vantage; puff or an the decision Ari- shall examine We wind, way, gravel or an unseen Court, and the zona’s constitution- quoit turn aside a or a ball and provisions and decisions of al various oth- aim. But make it come short of the states, holding pari-mutuel sys- er that the if were those incidents sufficient *7 on horse races does not tem they may games, in which make the constitute a occur, would games there be character. games other but of that none State, 53 Ariz. Engle v. P.2d * * * mentioned, The incidents Supreme Court, Arizona in holding may whereby yet be the more skilful pari-mutuel did not constitute loser, in the nature are not inherent lottery, said: a party’s Inattention is the games. of the lottery a or it then raffle? “Was A luck; fault, and the other and not his may a lottery be defined as scheme for obstacles, perceived nor though not prizes or the distribution anticipated, are occurrences among things by of value lot or chance ” not chances.’ of nature and course pay persons paid agreed to who have or then ruled: Court The Arizona chance for the a valuable consideration ** * decidedly are We prize. It is to obtain a by business conducted that the opinion skill game character and not the lot- in no manner a play- defendants individual or want of skill of the raffle, although of course it was tery or er which determines whether gambling.” is one of The test skill. “Many persons attend the races for
Arkansas.
witnessing the
the thrill of
horses as
Arkansas
line,
they
the finish
and add to
cross
reads:
by betting
thrill and interest
on
shall be authorized
“No
knowledge
horse without
some
state,
nor
shall
sale of
by the
information disclosed
form
be allowed.”
tickets
* * *
in-
But sources of
sheets.
of Arkansas
provided,
formation now are
Cook,
Longstreth v.
215 Ark.
220 S.W.
may
bet with more
which bettors
433, upheld
legalizing
2d
a statute
improved
and with
discrimination
on
selecting
a
picking
win-
chances
being
races as not
in violation of Arkansas’
ner.
prohibition against
constitutional
lotteries.
designate
“These form sheets
wheth-
sys
The Court discussed the
previous
performances
par-
er
racing,
tem of horse
as follows:
runner,
ticular horse is a fair mud
“Horses are selected for entrance
runner,
superior
mud
good
mud
Association,
particular
race
* * *.
runner
and the horses names
or lined
are listed
racing
“Followers of
who for long
up
daily
card,
racing
on a
and there is
periods of time
studied
have
the rec-
sold a
form which
shows
the horses choose as
ords of
their
weight
carried
and its
each horse
the horse
selections
which in their
per-
handicap depending
past
on the
likely
will be most
to win and
previous
formances of the horse in
pur-
these are for sale and
races at that or other tracks. This
chased at
the track. Neither
weight handicap is
some
intended in
Jockey
Club nor
one connected
equalise
speed
measure to
pre-
which will
with it fixes the odds
horses,
depends
and the amount thereof
vail
them-
horse. The bettors
prior
races
the horse’s record
through the
selves do this and it is done
twelve
preceding
run within the
amount
number of bets made and the
(Emphasis supplied.)
months.
particular
thereof on
horses.
owners
have trainers who
*8
equation
into
enters
pur-
“The animal
handling
skilled in
horses with the
equation
speed
just
these races
as the human
pose
increasing
their
sports
enters into
between men
making
responsive to the
them more
may
on
women. A horse
run better
jockeys.
control of the
day
depending
than on
on
one
another
the results
a
fects
race
merely
as it
it is
condition of the horse and
the results
calculates
function of
the trainer to see
races
after the
have been run and the
possible
respective
horses are in the best
winners announced.
properly
The
condition and
trained.
conclude, therefore,
“We
while
necessarily
element
enters
the element of chance no doubt enters
means
these races but it is
no
into
races,
into these
it does not control
controlling.
elements of more
Other
them, and that there is therefore no lot-
importance are the condition and the
tery.”
power of endurance of
horse and
See also: Scott v. Dunaway,
Ark.
and daring
skill
of its rider. Some
351
207,
’49,
Village
legalizing pari-mutuel
Gar
c.
in
v.
L.
this Court
State
as did
513,
Colorado,
328).
Idaho
265
The
in the State
in
City, 74
P.2d
viola-
den
thereupon
prohibition
ruled:
tion
Colorado’s
Court
constitutional
California
ruling
lotteries. The Court in so
statute,
our
three
“Under
element?
said:
lottery:
necessary to constitute a
are
chance no
an element of
“While
property,
disposition
(1)
—the
races,
dog
into
enters
doubt
upon a
(2)
contingency de
prize ,—
control them. The bettor
it does not
person
(3) to a
termined
he
own choice
animal
makes his
promised
paid
pay
a val
has
who
first,
finish
will
the race
believes
consideration for the
uable
place.
making that
third
second or
prize,
winning
under
previous
has
selection he
available
disposed
it will
standing that
jockey,
of the animal and
records
People
Hecht, 1931,
v.
119
chance.
and various
facts which he
778,
399;
Cal.App.Supp.
784, 3 P.2d
choosing the
take into consideration in
Cardas, 1933,
People
Cal.App.
137
v.
places wager.
animal
he
788, 790,
99; People
28
Supp.
P.2d
v.
say
it to
that after careful
“Suffice
1934,
Babdaty,
Cal.App.Supp. 791,
139
study
all the
hold
634;
authorities,
we
793, 30 P.2d
Niccoli v. McClel
conduct of the defendants
land, 1937,
759,
Cal.App.2d Supp.
21
opera
does not
amount to
Kentucky the time of the and Club, Court privileges granted are revoked.” In Commonwealth v. section shall similar granted for such General permitting noted 238 discussed conditions on *11 by proper penalties. All purposes Court of exercised, Assembly shall enforce this Ky. horse races. particularly adoption 739, shall charters Appeals upheld pari-mutuel system purposes, and none and no schemes 38 be allowed. of the Kentucky Jockey S.W.2d In prior historical so heretofore constitution, doing, 987, to or a stat- the ab- at weight horse races lotteries do not embrace Div. 77 Hun 17 Ass’n v. N.Y. 57 1016; [ex 15 “It [*] R.C.L. § N.W. Am.St.Rep. 492; rel. 82, 12, might People [*] Lawrence] 520, Am.Rep. 39 N.Y.S. 402, Green, 46 authority 16, he N.E. 45 v. 28 N.Y.S. p. fairly 68 Reilly, 1230; 296, pari Utah, v. 865, Utah [*] argued that 37 Fallon, App. mutuel Reilly Gray, 50 Mich. 47. 811; People affirmed 152 251, L.R.A. State effect that ‡ v. system. 4 249 P. Fair 227, 384, [*] “ * * holding wager- decision sence of that unable, We are in face ing lottery, on horse constituted a recited, of the facts to declare that as follows: the section of the Constitution con- demning during did not occur to lotteries was understood
“It one adopted period races, people it as out- betting that on elec- who itself 354 races, by city v. and ordinances. State statutes
lawing 50; 529, Barbee, system, other forms La. 175 So. 187 pari mutuel understood, Collins, City of betting. It was New Orleans v. then 532; opinion, 27 accepted 52 La.Ann. So. has been the State and Lasselle, 1923, gaming So. subjects of La. 389. In de- of the a horse the winner is not absolute race within the control were alone, termined as the power, Legis- condi- police possessed horse, tion, speed duty is the function endurance It lature. management and correct the skill and Legislature to discern power evils, affecting are rider are within that factors the result and evils injury oppor- the race. better has the to some definite The not limited morals, tunity safety judgment but to exercise his and dis- embrace public determining greater the horse on obstacles to a cretion removal of ”* * * City Shreveport bet. which to public welfare. Maloney, La. 31 So. Louisiana. very considered court question plaintiffs an raised under 19, 8, LSA, Louisiana (178) the Constitu- identical Article provides: part “ * ** tickets Lotteries prohibited in this and the sale tion of 1898. 1 [*] We have no hesitation In that case we said: denouncing lot law saying that State.” constitution) (article 178 of the teries Louisiana Court of force, limited, for it is as is is in Racing Com Louisiana State Gandolfo v. 188 of the article constitution 504, upheld So.2d La. mission. (article 178, Const.1898) It gambling. creating Louisiana a statute policy be announces state as pari authorizing Racing Commission lotteries, ing against and makes it an horse races. mutuel repugnant peace to the and good act said: The business of the order. defendants defined “Lottery has been lottery, never been considered a has prizes distribution scheme for the (cid:127) conducted, and, is not a theory It by lot or chance. *12 of the business ex- basis of turf The machines, : held slot has that this court running changes is the horses and lotter- nites pinball machines and bank betting on To an ex the result. meaning state of certain ies within by purchasing de- least, so, checks acts have fit to do tent, these received at matches, where expressed posited on baseball sanction, as one legal winning (article on the combina- Code who bet Civil those the articles *** pool. to recover a bet on 2983). right tion received the result ognized. * * of a horse race ’ ”* has been rec “By the Constitution ijc [*] sfc of 1835 [*] (art. % 12, provided that ‘no lot- 6) it was then discussed vari- The Louisiana Court State, courts; by by tery it re- shall be authorized cases decided ous cases the sale of tickets be particularly decided nor shall lied Supreme Michigan and Utah allowed.’ Courts discussed). (herein elsewhere sjí -t» -i- -i- ífc think that it would be We Michigan. such straining the law to include acts Michigan respondent within the those of as reads: lotteries, and therefore we category of as one treat the case which has authorize must shall not legislature placed legislature un- lot- been sale not any lottery permit the nor classification of offenses which der the tery tickets.” to be dealt with be left should 384, 15 N.W. People Reilly, Mich. municipal by-laws ordinances, earliest is one of the decided in well as state laws.” races upholding wagering on cases Supreme Michigan again Court of lot- contravention being not Racing Ass’n, in Rohan Detroit tery prohibition of constitution. Mich. N.W.2d A.L.R. Michigan that case on horse races —this ruled said: pari-mutuel system- under the time —was the recorder “The offense Michigan’s violative of constitutional respondent to have committed finds prohibition holding against lotteries. In so to be common- in what seems consisted said: the Court facts pool-selling, and the ly known as up that under the pools are convinced that the were made “We indicate authority, pari-mutuel privilege great weight select- amounts bid for the not a running on horse races is ing out of those horses Diction- races, New International many bets of as as saw Webster’s and of *13 opportunity reason, as fol- no to exercise his ary Ed.) lottery (2d defines a judgment, sagacity or discretion. In a lows: race not horse the winner deter- “ of for distribution 'A scheme the alone, mined chance as the condi- * * * chance; a prizes or lot tion, speed, the and endurance of horse prizes or more scheme which one management of and the skill and per- among are distributed affecting rider the result of are factors paid a con- promised sons who have or oppor- the race. The better has them, to win for a chance sideration tunity judgment his and to exercise usually numbers by the as determined determining horse on discretion from a on tickets as drawn pari-mutuel method which to bet. The wheel.’ race betting a horse or on of dictionary pari-mutuel “Said defines the result does affect determine not betting on horses ‘a form of machine pari-mutuel of race. The winning who bet on which those de- merely mechanical a convenient stakes, small total less a horse share the tabulating in- vice recording management.’ It de- per cent the number regarding formation as ‘a pari-mutuel machine a scribes Ass’n Fair bets State (Utah amount of indicating registering machine for 251, 249 P. Green, Utah supra) [68 on the number and of bets made nature 1016], and from this information races, pari-mutuel horse used can betting entered odds on the horses ” system betting.’ from time be calculated and determined Supreme Court was con- Michigan The during process betting. to time ** * only with the same and issue as is cerned better cannot fact a bar, viz., presented case that of at he the exact amount determine constitutionality bet, places his be- win time he at the ruling In act to be act. during may change the odds cause prohibi- race, constitutional not violative a does course Court, lotteries, Michigan against game tion mere make the analysis authorities, various chance, after exercise better can since the said : reason, and discretion judgment, his
“ * * * will win. he thinks selecting the horse is clear that racing, foot boat racing, like Horse betting on horse race is not a baseball, football, is a racing, the winner determined judgment and not game skill participant has by lot and a book-making, or pool-selling, Utah Fair chance. * * * hereafter gambling, Green, supra.” kind Ass’n v. within this be authorized allowed Illi quoted from the Michigan Court pass ap- state; legislature shall and the Monroe, Ill. People case of nois propriate prevent offenses laws 439, A.L.R. as follows: 182 N.E. provisions money amount of While the *14 section.” . is indefinite as to dollars be divided to Reilly early case of v. The New York cents, it is definite in that and 811, 402, Gray, decided 77 Hun 28 N.Y.S. money to be divided is the of amount 1894, con- selling pools ruled that did not winning horse, on the less stakes total prohibition of lotteries within the stitute percentage management. to the given constitution, a New New York’s and that among persons money whom the is pool selling authorizing York such statute uncertain, are not divided to be on races was constitutional. they winning ‘those who bet on the are winning point York Respondents horse is not de- to the New case horse.’ chance, alone, Britton,”8 201, but the Misc. 28 N.Y.S. Irving con- termined dition, speed, 529, pool selling operation and endurance of the which held that a manage- lottery horse, aided the skill and was a and similar to driver, repugnant or enter into to the Constitution. ment of rider therefore * * * Gray, supra, days Reilly In our later Eighteen result. ruling does not come with- in effect annulled which issued in the constitutional inhibition as to former decision.
lotteries. New York case often cited is the Another
[*] [*] [*] [*] [*] [*] early case of People ex rel. Lawrence v. “ ‘ 82, Fallon, App.Div. 865, 39 N.Y.S. de- racing horse [i]n held cided subject guidance, horses are to human lottery. not a arriving was horse management, urging put forth and ” decision New York such Court said: at their best efforts to win.’ *** quality The essential of a New York. is that the distribution lottery of the Constitution, New York Art. depend entirely upon chance, prize shall part provides: possible, so far as if the lot- and conducted, *; honestly tery no passed
“No law no other ele- shall is tickets, lottery enter into it. or the sale ment whatever shall skill, certainly prepa- There is a wide distinction be- ble extent careful upon wager money ration, foresight competi- tween the and game purchase quite any result and the It is clear that tors. the law has always To a certain recognized shares in a ex- the distinction be- tent, may upon be said that what called tween races ” ** ‘chance’ enters into result of establishment lotteries. c-hess, game and that game even the Oregon. con- nothing which the result of without competition test or decided Oregon reads: it than entering into some other element “Lotteries, and the sale take persons who the mere skill tickets, purpose whatever, recog- Everybody part in the contest. legislative prohibited, assembly game or in a nizes that baseball by penal prevent the same laws.” shall walking football, running County Langley, Multnomah Fair Ass’n v. depends, not alone matches, result a declaratory P.2d 140 Or. agility strength skill action; therein the judgment competitors, but numerous place, Oregon ruled that a where- may oc- incidents which solicited contribu- association the fair cur, up- depends and whose occurrence so obtained of- tions used sums *15 pre- something nobody can which expens- races,’ discharge prizes in fer horse dict, which, so far as human knowl- and among es, create a distribution and for fund concerned, edge have no reason horses, winning selecting contributors chance, pure This and existing. is a meaning of was not a within simple; yet but the result those Oregon Oregon’s nor Code any just games cannot in sense be said 14-801, lotteries. prohibiting section lottery. ap- be a The distinction we the deci- holding In so reviewed the Court that, lottery, prehend to be in a no oth- reasoned, sions, well which it considered er element is intended to enter into Utah, follows: Kentucky decided and while, pure chance; distribution than “ * are * * in the result of other contests which v. Ken Commonwealth In against betting act forbidden under the Club, Ky. S.W. Jockey tucky enter, gaming, other and elements or held that stat (2d) the court chance, although the element of neces- state, state utes of that which the under consideration, may be sarily taken into licenses racing granted had commission jockey (cid:127)to very and is clubs to hold races under eliminated to considera- arriving conclusion the In at its court did not conflict system, persuaded by the fact that the Kentucky was out- provision of with the dependent of a not come horse race is pro- 226) which (section Constitution upon upon mere but other enterprises fac- gift and ‘Lotteries vided: manifest, which tors are more or less general are forbidden. persuaded and the circum- was also this section assembly shall enforce ’ * * * that, stance above-mentioned when the proper penalties. The court provision was of the Utah Constitution opinion ‘gaming, was that bet- being separate constitutional ting, dis- debated before the lotteries convention, it fact,’ proponent statéd that things tinct in law readi- its ly prohibiting would not of them have the effect conceded that all were with- Legislature racing. vari- power pro- Since hibit, ous classify, have like- but decisions which regulate, was that, wise held Kentucky that horse races when the not adopted, ‘it does constitute a are review- Constitution was did not or cited period ed Utah during occur to one that aforementioned that decisions, races, elections, and Missouri we shall not re- betting on or similar peat the citations herein.” forms constituted lot- tery.’ Fair Utah State Ass’n Continuing, Supreme Oregon Court of Green, Utah, 251, 249 P. observed: state, acting that un- that, plain- “It clear when seems Declaratory Judgment der the Statute plan, tiff it not in- formulated its did (Laws, 77), c. held that an act up tend to set It also seems state, provided which ‘bets clear, allegations of the com- from co-operative wagers made under the plaint quoted, that which have not we system betting wag- plaintiff purposes one was (section ering 6) not be unlawful’ shall breeding good to add interest to the the race was conducted under the when pre- that the horses and it intended supervision state commis- plan dominant in its should feature sion, pro- not in conflict with skill, judgment, and be chance but (article the Utah Constitution vision of ” horsemanship. provided: Legisla- ‘The 28) any game of ture shall not authorize Likewise, petition in appears from *16 enterprise chance, lottery gift un- bar, petitioners or in- at that do not the case lottery, intend to any up they that any purpose.’ for tend to set pretense der or horses, good breeding prohibition to this lation our add interest constitutional against predominant features in conducting that The con lotteries. skill, plan judgment placed by be struction pari-mutuel up shall the Legislature horsemanship, and not chance. on the prohibition constitutional
conducting
lottery in
this state will
Texas.
not be set aside
the courts unless in
their
such construction is clear
Constitution,
3, 47,
Art.
Texas
Vernon’s
ly wrong, and we cannot
hold in this
Ann.St.,
so
reads:
case. State ex
Guerguin
rel.
McAl
pro-
legislature
pass
shall
laws
ister,
187,
88 Tex.
S.W.
hibiting
establishment of lotteries
523;
L.R.A.
Belknap,
Whitener
State,
enterprises in
gift
as
273,
Tex.
ed or in other States.” reads: “The Legislature shall not authorize Racing & In Breeders Panas v. Texas any game gift or en- Texas Ass’n, Inc., 80 S.W.2d terprise pretense under cer- Appeals Court of Civil held purpose.” races, system horse tificate system, pari-mutuel which similar Green, Fair Ass’n v. Utah State 68 Utah lottery prohibition did not violate the declaratory was a action 249 P. Court holding In so constitution. Texas brought purpose testing the va- for the said: ’25, 77, lidity permitting of Utah Law c. sys- system horse rac- at
“We the certificate do not think case, the Utah can tem of horse races es. betting on question racing, used horse lottery, answered the “Is called as that term act, contemplated game in section of the our Consti- section article tution, The Court made an establish- chance?” exhaust- prohibits ‘the analysis of the various definitions of ive ment lotteries and the available principle, “games of chance” then involving evasions subject upon matter bearing existing States.’ decisions in other established pointing out After certifi- consideration. Legislature enacting under device, while a re- conducting cate play the device, used to cording is not legislation a vio- did not consider such *17 wins, he may horse knows performs win. If his no function racing, of he cannot more advance that lose the in determining game, the result of the cent, has per of the amount he than Utah Court said: only bet, occur in case could court, games “In the the if of better bet on the same horse. every billiards, baseball, racing, such as horse * * * that the chance So feature of chess, games there nothing has to with game do wheth- the is a basis judgment, exercise for the of race, for, loses the better the wins er skill, learning, experience must stated, depends before the as chance, classed games as of even itself, pari-mu- independent of the race though may be an of there element the Neither does machine. tuel chance, then we are unable to deter- manner affect feature game mine what constitutes a skill of lose, this he will he can amount contradistinguished of game from a registers his bet. at the time he foresee ** apply chance. Unless we rule supplied.) (Emphasis [citations], question and determine the that the domi- “It to court seems by dominating ascertaining which the is is the race nating game element of the game, element is no then there ”* * * itself. question reasonable rule which the can be determined. to then turned The Utah Court proceedings Constitutional the Utah “In the case the re- instant 937-938, Convention, 1, pp. wherein vol. sult race is determined rejected mo- that the shown convention itself, race machine tion to strike from the Utah constitution Everything or other device. be- else prohibition lotteries. equal, ing fastest horse will be the Evans, matter, subject Mr. colloquy on the goal. first to reach the But convention, op- was the President of the winnings the amount of each better’s He posed deleting lottery prohibition. to regis- cannot at the be foretold time he Hammond, asked a member Mr. persons ters The number his bet. convention, prohibit horse “Will same who bet afterwards at the “No; replied, racing ?” to which Mr. Evans This, machine unknown. it would according it will not to the construction seem, chance, at least an element pointed the courts.” The Utah then to a extent. It is not an ele- limited recog- lawyer out that Mr. Evans was ment chance as the amount he ability; par- may lose, only lawyers he but the amount nized that four other discussion, apply bar; and that ticipated none in the case at said Justice Straup: challenged correctness of Mr. El- them statement; whereupon the motion to ans’ “We must Constitution as take the rejected. Continuing, the Utah
strike was it, enlarging we find nor de- neither Supreme Court said: tracting merely provides from it. It Legislature shall not author- goes saying “It without that the con- 'any ize lottery, stitutional convention was not consid- gift enterprise.’ It not forbid *18 does ering inhibiting games play- of chance wager- Legislature authorizing betting, just Betting and ed for amusement. * * * ing, gaming. or The wisdom mind; gambling was what it had in per- authorizing of or Legislature otherwise, proceeding would have any mitting betting wagering of or that, downright piddling. been So kind, skill or game on a of whether colloquy or this whatever force effect event, per- otherwise, any or to or on may determining to in be entitled any public betting wager- mit kind or of convention, must, intention of the it con- may questioned, and ing, well be fairness, be all conceded it had in may well minds of men cerning which question gambling mind the of on a * question of But the differ. chance, question
game of and also the policy legislative of wisdom is one racing as to whether or not horse we have no control. over which included. adopt any may kind Legislature imposed “In the limitations view of by the Constitu- policy not forbidden of passing court in the con- policy adopt- tion, given whether a stitutionality Legisla- an act of the of un- forbidden is wise or ed it not so ture, well as view of the as investi- unwholesome, wise, mor- or wholesome subject, have made gation we exclusively immoral, questions al or in holding are not warranted we province Legislature. of the within finding trial court erred that sec- gaming betting, wagering, Hence (chap. 1925) Laws 6 of the act tion being the Constitu- forbidden of the not in contravention state Con- tion, competent Legisla- for the it is stitution.” permit to for- authorize and or ture to Straup concur- in his Particularly, kinds of prevent and all bid and Justice argument cogent gaming, a whether ring betting, wagering, advanced or private public.” or fully cognizant of’ which we must the race determined tem is the result of á cogent form forth in Straup set Justice character of as to skill or nor the it system fol- as summary of the I chance influenced or affected. Thus lows: by the termines means not kind of contest though perhaps not as progress appliances horse kinds of done tions, lexicographers. race. testants, but wheel, The device system of football or pencil on a board or chart same kind operation itself determines It so and strument could far as is a mere displays like tabulating by charts and blackboards. might be used in racing as well be It [*] or use of bets, * which or affects made known to a betting in no displaying other merely merely slot usually the bets system, only. all of which baseball, posting of them. registering, levers and mechanical with a number by manipulation or pari-mutuel method or similar system machine, The device marked registers or its It so bets and a when convenient means conveniently, be they are made. particular device or result of us, applied to proper varia- is defined on employed by chalk or displayed in number or betting is recording, stages on used roulette records games result. ready other They well, con- de- in- by is, in wagering ting or horse races are think that, being a think misstate that ‘the yet if tuel a determine with If game game of chance. sideration when chance, game conceive er game wagering, whether the result system or while and as a into wagering pari-mutuel system betting of skill? game of chance game wagering on it was is a that is the precise question the main of skill does respondents upon horse game or one or affect the result of conclusion football game betting competent for the proposition, part permitted, or by any operated in connection skill and not game they the race? chance. by permitting betting If it is a proposition betting skill, Horse end is a of the *19 the race on the result of say, misconceive and races where of chance or a inevitable that chance.’ As here is wheth- game is it on the result it racing thus As convert the it Since bet- becomes game rendered pari-mu- they does not for con- well game method, inquiry. is: Legis- skill, it, say do, or Is a I I authorize, permit, regulate and lature to use of place, conspicuous and Nor disputes. it, really no one sys- by the other no than the one more 364 seriously question any
does one the wis- ized to conduct horse races. It further legislation provided: dom of some sort on the subject. questioned fact in What ‘Any association or corporation, power legislative amounts not but to person persons, or or the owners of legislative permitting public in wisdom engaged the horses races, such or betting racing, on horse and others contribute purses or though game or on of skill. funds that shall be distributed on the subject respondents, On that and basis of the result of races, them, all must seek those accord prizes or stakes that are to be con-
legislative, judicial relief.” and not for, subject tested to the rules reg- respondent point Both amicus curiae ulations as fixed the commission ” support of their following governing to the cases such contests.’ position operation of a The operated pari-mutuel sys- defendant conducting horse con tem of betting horse contending races ex test constitutes a State rel. Sor quoted portion of the statute au- Co., Exposition ensen v. Ak-Sar-Ben thorized it. brought state the action 705; Opinion Neb. N.W. operation. restrain the The Nebraska Justices, 753; 249 Ala. So.2d quoted Court held that stat- Bissing, ex rel. Moore v. 178 Kan. ute did pari-mutuel sys- not authorize the 418; State, Pompano P.2d Horse Club v. tem or other gaming, form unlawful lot- 51; 93 Fla. 111 So. 52 A.L.R. tery gambling, further stated: Q.B. (1871), Tollett Thomas 514. pari-mutuel system “The The Nebraska of State ex rel. races, oper- gambling on Exposition Co., Sorensen v. Ak-Sar-Ben su- ated defendant and shown pra, supports respondent’s position. The petition, every contains element of a provision in constitutional effect at the time chance, lottery consideration, criminal — provided: of that decision price, means of disbursement. con- shall legislature not authorize tentions of defendant that there is lottery, gift en- against betting Nebraska no statute any pretense, terprise; under or for on horse races and defendant any purpose whatever.” Const. Art. law, are, therefore, whol- violating no 24. ly without When merit. form, statute, gambling Laws c. are conducted A Nebraska *20 provided livery criminal lot- racing of a commission author- substance and for a exception pur- tery present; that the were who and those they unlawful tery are betting pari-mutuel was porting legalize to the stat- to are amenable them conduct beyond legislature to en- power penalizing lotteries. forbidding and ute exception general to the act and that such nor the state Legislature Neither being in contra- lottery statute was void as power had to au- racing commission prohibition lotteries. vention operate a to defendant thorize gambling, guise in State, supra, Pompano Horse Club v. In any form.” in the Florida Court held conducting of the certificates under sale of Subsequent to rendition of that conjunction parti-mutuel betting plan in Constitution was amended to Nebraska’s race, in engaging pari-mutuel betting. with constituted authorize Nebr.Const. gambling, and likewise as amended. Art. § prohibition. At contrary statutory Bissing, supra, ex rel. Moore v. In State statutory (1927) time there was no Supreme Court of Kansas held that betting. pari-mutuel for authorization systems of wagering in connec- 1931, in face of Florida Const. Art. racing dog constituted a tion F.S.A., provides: “Lotteries § —which provision constitutional that state hereby prohibited in this State.” —the “Lotteries and the sale provided: lot- adopted pro- a statute legislature Florida prohibited.” are forever tery tickets Art. commission, and viding for a state The defendant 3. contended that the ' pari-mutuel betting. authorization system betting as conducted exception no cases from an has been cited authorized This contained making interpreting the jurisdiction statute unlawful Florida mainte- act, pro- place view of constitutional nance of a for wagering; provided: exception vision. “ * * * pro- except within inclos- Alabama ure of a race track and races or : vides speed being
trials of
conducted within
power
have no
legislature
shall
(provided
said inclosure
the ex-
enterprises
gift
lotteries or
to authorize
any
ception
apply
herein shall not
pass
any
and shall
laws to
purposes,
race track
more than
or inclosure for
in this state of
prohibit the sale
* *
year),
two weeks in
one
tickets,
enterprise
or tickets
gift
of a
rejected.
nature
lot-
The defendant's contention was
scheme
tery
lot-
Court held that all elements of
*21
Supreme
Alabama, pursuant
of
gambling
The
was not discussed because the
request,
opinion
legislative
rendered an
to
constitution and laws of
ap-
that state
validity
proposed
legislative
plied
the
of
equally
subjects.
as to
both
But Sec-
enactment,
purpose
which would have
tion
Art. Ill of the Nebraska Con-
racing
to create
state
commission
permits
been
stitution as now amended
legis-
betting under
provide
pari-mutuel
legalizing pari-mutuel
and
lation
legislation.
authority
proposed
such
on horse races.”
Ala.
Opinion
Justices, (1947)
Court of Alabama was
3 deci-
Court in a 4 to
367. with the obvi- lotteries, terpreted in accordance the statutes one of under applying term as meaning Chitty’s English ous c. (e. & 11 Will. g. 10 money only V, v. to distributions Ed., 45). Tollett Statutes, vol. Sixth is, chance, Attorney- nothing but part was reversed Thomas Ltd., equivalent Club, by doing that which is Sports Luncheon General plays skill If merit or drawing lots. it was decided wherein (1929) A.C. part determining the distribu- were pari-mutuel machine proprietors of a lottery, and tion, has been no wagering. there gaming or not involved ** *.” there no offence Shand, K.B. (1939) Everett *22 money payment that the justices held Limited, Press, See also: Coles Odhams v. pari-mutuel ma- proprietors of patrons to Warrender, 416; (1936) 1 K.B. v. Challis racing dog conjunction with chine used (1930), 29 Cox C.C. 251. them stat- one of gaming, not constitute did dog that it can be said do not think ing impression, “I In cases of first such as : racing, ais than horse one, more racing, recognize the instant we that the deci jus- opinion the that In controlling. chance.” game of sions from sister states are not of Tollett the decision Court, considered however, all This tices consider by the been overruled states, to have only Thomas v. but decisions from the sister v. Luncheon Attorney-General statutory also the case and constitutional au Ltd., Club, supra. then, thority decisions; Sports governing such if and when there are two of authori lines carefully distin- decisions English Court, ty, eminently proper it is as for this and “lotteries” “gaming” guish between decision, at arriving an aid in its to select and, in in their statutes are used those terms 'apply to the case under consideration concerned, hold as “lotteries” so far -that line of decisions reflects the resolu- not a unless contest is that premises, con reasoning soundest entirely depends issue tion of n s'onantwith our statutory and constitution Hulton, (1891) v. Caminada chance. provisions, regardless of al numerical 307; Division, 17 Cox C.C. Queens Bench authority. Courts, 21 weight of C.J.S. Q.B. v. Cox, 198. Scott (1899) 1 Hall v. 85; 299, Courts, 354; p. 14 Am.Jur. Prosecutions, 2 (1914) Public Director Yelle, v. 7 ex rel. Todd Wash.2d Lush, J., stated: K.B. McLaughlin Housing Au 162; 110 P.2d clearly ‘lottery’ indicates Vegas, Nev. City “The word thority of of Las 206; Union Oceanside aimed at offence 227 P.2d School enough what is the County Superior Diego of San statute, Dist. in- has been Act and the Diego County, TAYLOR, Court of San 58 Cal.2d (dissenting). Justice Cal.Rptr. P.2d 439. distinguish Petitioners operation pari mutuel operation from the of the author Our review numerous machines, of slot involved in State v. appearing eminent ities cited counsel Village City, Garden 74 Idaho parties amicus for the of record and as 328, by P.2d asserting player that curiae, regard with due accorded to the his pari operation better in the can, by mutuel development English cases torical exercise his own skill and judgment, discussed, authorities from which forecast outcome race, and thus states, by our quote decided sister leads we place his bet without resort to that a the conclusion meet with upon a minimum of reliance the ele- pari-mutuel system wagering where the ment of They chance. acknowledge that not contravene is used does the constitu the better cannot forecast the amount of prohibition against tional lotteries. It will the reward he should receive the horse weight firm our author winner, he chooses be a particularly in the (as States well as in ity Eng in the United early stages betting, because the land) conclusion, accord bas dependent upon the number and odd: are grounded logical foundations, ed well placed by patrons amounts bets keeping in mind the historical distinction same and other horses entered. “lottery” “game between of chance” urge, however, They the element of developed. it has been involved a minor one and that *23 judgment of skill and the element dominates 1963, 64, not in is Idaho Laws c. Sess. largely controls the result. and prohibition of Idaho contravention of the pari-mu- Const. Art. inasmuch as the case, significance no can In this be at- tuel of on horse of our proceedings to the constitu- tached meets, is not provided chapter, in as “game in which words convention tional solely consti- one which based original from were stricken chance” of requisite an essential of a tutes 3, 20, our of Constitution. of draft is made The alternative writ of mandate .. 1248 Convention That II Constitutional permanent. delegate on motion was taken action county,
Ainslie, mining where Boise from industry. principal then the was by Chinese J., McQUADE, J., KNUDSON, C. engaged in were games Certain concur.
369 kind, commonly known games as other games These by at that time. the Chinese Though knowledge our of skill. were license fees were licensed and the subjects very limited, yet we It such paid county fund. into the school mind, that, popular li- such believe Mr. Ainslie’s desire to continue acceptation of “a fund. universal censing for of the school the benefit game as is described, is such a determined chance” The games not named or were luck, entirely part or lot or mere pari mutuel in no mention was made judgment, practice, in which or game. other such honestly have skill, or adroitness no proceedings convention the Utah all, are thwarted at chance. office were contrary In effect. Utah intelligible examples, games As Green, Fair Ass’n 249 P. v. 68 Utah are dice which determined fact the court called attention to the only, in throwing and those which the adopted that the constitutional convention regulates play, of the dice throw prohibition being against lotteries after depends upon at cards hand or the pro- assured lawyer-delegate that down, the face exhibit dealing with prohibit racing. vision would not games A classes of of chance. two given response to a assurance was hand, skill, game of on the other question by delegate bet- who mentioned chance; one which left to nothing ting on such races. superior and attention knowledge but appears As from of “lot- the definition prac- superior strength, agility, tery” accepted by in the Garden this court tice, victory. kind gain Of City case, “lottery” “game checkers, of chance” and games chess, draughts or synonymous. are practically Speaking quoits billiards, bowls, fives, ” Gupton “games of chance” in State v. examples.’ be cited as Annotation— (1848) (8 L) 30 N.C. the North Skill, Ired. A.L.R. Games of 135 Chance Carolina court said: 110.
“ ‘* * * State, 93 apparent Pompano Horse v. Therefore it is Club 51, the Fla. A.L.R. specified 111 52 games that those are in con- So. Arkansas games Florida observed that tradistinction court S.W. (State games Vaughan, v. 81 Ark. chance. In other Am.St.Rep. 685, L.R.A.,N.S. 899, words, those terms must he understood Kentucky (Cheek sense, plain, popular descrip- 277) and in their Ann.Cas. Com., 359; Ky. City of Louisville games of a kind tive certain *24 876, id. Wehmhoff, Ky. 812, 76 to 116 S.W. contradistinction a certain the'courts, Ky. 845, al 201) losing tributed 79 S.W. those who chose though weight of recognizing the horses and who noth that therefore receive authority held against position, ing, process of ‘game their that a was becomes skill, chance,’ game facing that horse a of So. at was principle of because that a A.L.R. at 68. was decided long standing jurisdictions. in those After early In the Thomas case of Tollett v. unnecessary stating to decide it was Q.B. 514, 521, court (Eng.1871) the game was whether horse in itself a pari reasoned that horse mutuel on chance, of the Florida court said: races a : of chance as follows
“ * * * Regardless of whether instance, present “In the an element itself, ‘game’ racing, horse within is introduced, which, of though chance is or, if ‘sport,’. game, or a whether having any to the main reference ‘skill’ or of of ‘chance’ —when one namely, race group persons, of result of the each whom has the event— money winning particular the horse— a common of a contributed to fund yet making wager essential the a ticket or certificate to and received contribution, profitable upon laid the horse representing adopt winning such race, winning the better. of the horse the result of which is a horse primary uncertain, betted the determining, as a means of course won; wager being condition group members of the winning wager but whether of the and which have have won lost any profit productive fund, shall be of that each a redivision con- winner, especially and more what having tributor a rtated selected be, race, profit shall the amount to win such redeemable value depends on the state so obtained certificates and held number of bets with reference to the such contributors to fund being winning horse— laid on or affected result of varied such things fluctuating race, from one state that the value some so is en- throughout dura- minute to another hanced, while of others is reduced being destroyed, purchase betting. Now this original tion of wholly independent having same, something price all been those race, as well as of the will winning issue being who chose the horses winner, depending; judgment paid accumulated from so fund does, caprice o’f thereto, by the will they as it more than contributed persons betting, a matter money dividing amongst con- them the
37X betting as tc make that pari-mutuel uncertainty and chance obviously of etc., a paraphernalia, its with better, especially more individual the con- ‘lottery’ meaning the of the within betting. stages of the earlier the It is true that this state. stitution of then, being, this element of There the race be deter- the result of among transaction the in the chance qualities of horse and the the mined may proper- betting, we think parties rider, which the better but the amount termed, them, amongst game a ly be receive, horse of his choice will if the chance.” wins, chance.” purely a matter of is (1947) the Opinion of In Justices 753, 755, the court sum- So.2d (1955) Ala. Bissing In ex rel Moore reasoning courts in marized the Kansas 283 P.2d 178 Kan. at jurisdictions arrived the conclusion operation of concerned with the was court lottery, betting not a pari mutuel that system dog After pari at races. mutuel as follows: lottery— referring three elements of to the “ * theory of general consideration, prize and court chance —the the form authorities these is said: in the legalized be wagering sought to * * then, [wjhat, is the not make present bill does very is involved? The answer better since the game of chance a mere place, there is no simple. In the first reason, and judgment his can exercise dog is going that a certain guarantee he the horse selecting discretion win, guar- and neither is there racing, that horse will win and thinks always pick that a bettor will a antee a racing, boat foot like placing wager the bettor winner. judgment of skill and he picking ‘chance’ takes a pointed out that It is game of chance. place, second under dog. In the right not deter- race the winner is in horse system betting every condition, by chance alone as mined a ‘chance’ on the amount bettor takes the horse speed endurance of win, though his dog even he will af- rider are factors the skill of the position he bet finishes exact the race.” fecting the result of would, reason that he for the court concluded: The Alabama on a system the exact ‘odds’ under this ‘win, particular place or show’ matter, dog to of the “Upon consideration cannot be determined however, .until element conclude that the we regarding is closed and information the form present, chance is so “prize” payable owner, amount of is tabu- number and bets to the trainer or machine, jockey winning horse, lated is not a lot- which, analysis, owners, simply tery. in the last If jockeys trainers and calculating only persons device for the odds. placing were bets in the operation, pari mutuel the outcome and argument effect “Defendant’s to the prizes to be distributed might logically itself, and that the outcome race said, measure, in some to result from experi- knowledge, human skill and application of their skill judgment. ence, speed the condition But, public when members large at efforts, dog together whose *26 placing in bets engage the result of persons charged efforts with the of races, the no conclusion can be drawn. such breeding, such training handling and of patrons The little the race tracks know of animals, which are the sole factors the nothing quality or the of about either recipient of determine the amount and horse, jockey. or of Their choice the prize, the and that no element a “show,” horse at “win,” “place” to or is involved, simply ‘chance’ does thus is they guess. a Any most distribution practical take into account the such receive is the Most result of chance. everyday human instincts realities of or placed hunch bets are a of a as result and life.” fancy, result some and do not whimsical application judgment. rely from the of skill or In the foregoing decisions the courts a heavily upon placed is and The fact that are so element most bets the knowledge. courts uncertainty matter involving the of common amount known eyes to facts winning holder should not the will receive close their of a ticket Furthermore, That, pari system. general public. how- to the from the mutuel hazard, only petitioners’ in brief: ever, uncertainty, is stated not the moneys or chance which the to be every to effort “The track makes distributed the at the conclusion ability grade according to their horses racing of the race is determined. Horse to handicap perform them to and to “game” a “sport” itself is or a in which horse to equalize of each the chances by the winning the is determined win.” horse, breeding, training stamina skill, experience management and the done the horses is This classification of jockey. owner, trainer and It the ordinarv experts. result is that regarded completely skill; to be as a pari is almost patron mutuel winner, “purse” pick for or a to ability horses without to mutuels make selections their judgment any appreciable skill exercise guessing game.” regard. in that patron who bets Furthermore State, said court Missouri What hope of long shot in the odds on Pub. Globe-Democrat Inf. McKittrick ex reward, pure winning greater resorts 705, 113 862, 110 Co., S.W.2d Mo. long shoi “The lure of chance. apropos here: A.L.R. average human practically irresistible skill whether chance Third being. B. Davis.” Webster’s —C. determining factor Dictionary. International New capacity depend upon the contest must to author- attempts my opinion act experts public- general of the —to —not lottery in violation of Art. ize a presented.” problems solve the Constitution.
Also, Jersey court said what the New should denied. The writ Lovell, 458-462: N.J.L. physical condition the horse ‘The REHEARING FOR PETITIONS ON rider, fastenings of his and his shoes, honesty purpose SMITH, McFADDEN Justices. his owner his rider and
actuates respective petitions Examination him, running state weather by respondent rehearing submitted track, and these circumstances and the pre- questions curiae reveal amicus every horse that in the case races *27 by considered fully been sented have him, are all matters about which opinion. rendering initial in its Court judgment of the outside bettor can avail him no more than the arith- deciding, that Assuming, not amicus but can metical calculation of chances avail petition for entitled submit curiae are ” the dice Longstreth thrower.’ v. pointed that rehearing, again must be out Cook, 433, at 215 Ark. 220 S.W.2d legislature having acted on a matter of 443. pres- policy adopt public has seen fit to Racing Act.” Idaho Horse ent “Idaho Smith, by And in dissenting Chief Justice prohibits legislature Art. Const. § 72, 220 Longstreth Cook, S.W. 215 Ark. “any lottery gift authorizing enter- from 2d at 447: by prise”. wagering authorized While the may gambling, Act overwhelming majority those such constitute a form pro- does not patronize pari- who the Constitution induced nevertheless result, in it is fact a whether in gambling unless which skill hibit predominate enterprise. may or is to gift pro- hibited, must be legislature decided contend, however, Amicus curiae delegated powers its under inherent and of Idaho such Act is also contravention making body. the law 3, 24. of the Con- Art. That section Const. policy rehearing for stitution is a declaration of Petitions are denied. legislature to “further all admonishes KNUDSON, J., McQUADE, C. J., pro-
wise and well efforts directed concur. temperance morality.” motion of on a' legislature having in this area acted TAYLOR, J., dissents. public only question re- policy, matter maining for determination the Court Act Idaho
whether the contravened Const. adhere to we continue to opinion, original
our not. that it does
Respondent adopt would have this Court the rule that a determination as to whether P.2d 964 particular scheme of constitutes COMPANY, INSURANCE ARGONAUT lottery, should be based on whether el- Plaintiff-Appellant, corporation, predominates ement of skill over ele- ment of chance. It conclusion is our Agen- WHITE, Insurance Al White A. L. dba persuasive weight authority rejects George, Secaur, Lloyd cy, T. C. Defendants-Respondents. that rationale decision. No. 9305. original
We have conclud- “lottery” as used our Constitution ed of Idaho. only money applies to distributions of Nov. 1963. things value and in which process of distribution the element skill
plays part. plays any part If no skill de-
termining the is no distribution there prohibited by our Constitution.
particular game where skill is an ele- fact
ment, questions predom- skill of whether over in determination
inates