251 So. 2d 751 | Ala. | 1971
The House of Representatives propounded two questions to the Justices of the Supreme Court. One concerned House Bill 1531; the other House Bill 1532. The question as to each Bill was: did Section 65 of the Constitution of Alabama prohibiting the Legislature from authorizing lotteries or gift enterprises prohibit the Legislature from authorizing dog racing with a pari-mutuel system of wagering. A majority of the Justices were of the opinion that the Act did not offend Section 65 of the Constitution in that the system of pari-mutuel wagering provided for in the Act did not constitute a lottery or gift enterprise.
Questions answered.
To the Members of the House of Representatives State Capitol Montgomery, Alabama
Sirs and Madam:
House Resolution No. 113 requests the opinion of the Justices as to whether the provisions of House Bill 1531 or House Bill 1532 controvert the provisions of § 65 of the Constitution of Alabama. The first of these bills is a local bill to be applicable only to Jefferson County. The second is a general bill, containing a "county option" feature. Both would authorize dog racing with a pari-mutuel system of wagering. The question is whether or not these bills contravene the constitutional restriction which is as follows:
"The legislature shall have no power to authorize lotteries or gift enterprises for any purposes, and shall pass laws to prohibit the sale in this state of lottery or gift enterprise tickets, or tickets in any scheme in the nature of a lottery; and all acts, or parts of acts heretofore passed by the legislature of this state, authorizing a lottery or lotteries, and all acts amendatory thereof, or supplemental thereto, are hereby avoided."
The question presented then is whether or not the pari-mutuel system of wagering on dog races as authorized by these bills constitutes a lottery.
Twice in the past the legislature has called on the Justices for an opinion on essentially this same point. The first came in *335
1947 (Opinion of the Justices No. 83,
In 1961 (Opinion of the Justices No. 170,
In the 1947 Opinion of the Justices (
"A system of betting (as on a horse race) in which those who bet on the winner share the total stakes minus a small per cent for the management."
Much was made on prior occasions when this question was before us of the fact that the odds change up until the last bet is placed on a race and hence the amount of the winning ticket is based on chance. We are not persuaded by that argument. Utah State Fair Ass'n v. Green,
"* * * the pari-mutuel method or system of betting in no particular determines or affects the result of the race. It is merely a convenient means by the use of levers and mechanical appliances of registering, recording, and tabulating the bets and a ready means of displaying in the stages or progress of the betting the number and kinds of bets, all of which may as well, though perhaps not as conveniently, be done by charts and blackboards. * * * The device used in the pari-mutuel system of betting is not like a slot machine, or roulette wheel, or other similar device or instrument which by its manipulation or operation itself determines the result. The device merely registers or records and displays the bets as they are made. It is a mere posting of them. * * * As I conceive the proposition, it is: Is horse racing a game of chance or a game of skill? If it is a game of chance, that is the end of the inquiry. If it is a game of skill, is it rendered a game of chance by permitting betting or wagering, whether by the pari-mutuel system or by any other method, on the result of the race? Since betting or wagering on the race does not determine or affect the result of it, I think the conclusion inevitable that wagering or betting *336 on the result of a game of skill does not convert the game into one of chance."
We agree with the Utah Justice. Further, as he said,
"We must take the Constitution as we find it, neither enlarging nor detracting from it. It merely provides that the Legislature shall not authorize 'any game of chance, lottery, or gift enterprise'. It does not forbid the Legislature authorizing betting, wagering, or gaming. * * * The wisdom of the Legislature authorizing or permitting betting or wagering of any kind, whether on a game of skill or otherwise, or on any event, or to permit any kind of public betting or wagering, may well be questioned, and concerning which minds of men may well differ. * * * But the question of wisdom is one of legislative policy over which we have no control.
"The Legislature may adopt any kind of policy not forbidden by the Constitution, and whether a given policy adopted by it not so forbidden is wise or unwise, wholesome or unwholesome, moral or immoral, are questions exclusively within the province of the Legislature. * * *"
Though not binding on us, of course, it is interesting to note that a substantial majority of other courts have held that pari-mutuel betting on horse or dog races does not contravene constitutional prohibitions against lotteries. See Oneida County Fair Board v. Smylie,
Your inquiry is answered in the negative.
Respectfully submitted,
THOMAS S. LAWSON
ROBERT T. SIMPSON
ROBERT B. HARWOOD
JAMES N. BLOODWORTH
DANIEL T. McCALL, Jr. Justices.
Justices Merrill, Coleman, and Maddox would answer in the affirmative in accordance with the opinions of the majority of the justices in
Respectfully,
PELHAM J. MERRILL
JAMES S. COLEMAN, Jr.
HUGH MADDOX Justices.
HEFLIN, Chief Justice, expresses his opinion as follows:
"* * *. Should there be no ticket bet on the winning greyhound, the entire pool shall be divided among the holders of tickets on the greyhound running next in line until the pool has been redistributed to the contributors."
This clause is interpreted as being in the nature of a lottery and, therefore, this clause of said bill violates Section 65 of the Constitution of Alabama in my opinion.
"Section 5. It shall be the duty of the Jefferson County Racing Commission to carry out the provisions of this act; and it shall have the following specific duties:
* * * * * *
(5) To make uniform rules and regulations governing the holding, conducting and operating of all race tracks, race meetings, and races held in Jefferson County."
* * * * * * *337
"Section 13. The Commission shall make rules governing, permitting and regulating wagering on greyhound races under the form of mutuel wagering' by patrons known as 'pari mutuel wager' which method shall be legal to the extent that, and so long as, the same is carried on and conducted strictly in conformity with this act, and not otherwise. * * *"
"Section 14. * * * Under the pari-mutuel system of wagering herein provided, the licensee shall be permitted to provide separate pools for bets to win, place, and show, also a daily double pool quiniela pool, perfecta pool, big quiniela pool (Big Q), big perfecta pool (Big P), twin double pool, tierce pool, perfecta tierce pool (big T) and big tierce pool (Big T)." "* * * The licensee shall be required to use a totalizator machine to record the wagering and compute the odds. Rules and regulations governing the operation of each of the pools shall be set forth in book form by the Jefferson County Racing Commission.
These provisions leave to the Commission the power to make the rules and regulations concerning the racing and operation of such pools. Without knowledge of what these rules and regulations will be and how they will be operated, and, further, in the absence of facts disclosing the operation of such forms of wagering, it seems to me that an expression of an opinion on the constitutionality of House Bill 1531 other than that portion quoted under Section I of my opinion at this time necessarily would be based upon conjecture and surmise. Therefore, my views are in accordance with the opinion of Justice Goodwyn stated in Opinion of the Justices,
Respectfully submitted,
HOWELL T. HEFLIN Chief Justice.