50 Mich. 384 | Mich. | 1883
Respondent was convicted under an ordinance of the city of Detroit, section 3 of which undertook to punish the maintaining of any “ lottery, policy, pool, bucket-shop, board of trade, or any like scheme or place for drawing or disposing of money, wheat, or other property within the city.” The complaint was in general terms, and without details or description of the offense charged, except that it was keeping and maintaining “ a pool for disposing of money by means of wagers on games of base-ball, horse-races, and other like games and sports,” and maintaining “a lottery for disposing of money.”
The power given by charter over various offenses partaking of the mischief of gambling was fully exercised by other sections of the ordinance, and could not, by any reasonable construction, include pools or lotteries. The only remaining power within the same class of mischiefs is that to “ prohibit, prevent and suppress all lotteries for the drawing or disposing of money or any other property whatsoever, and punish all persons maintaining, directing or managing the same, or aiding in the maintenance, direction or management thereof.” Sec. 43.
The offense which the Recorder finds respondent to have committed consisted in what seems to be commonly known as pool-selling, and the facts indicate that the pools were made up of amounts bid for the privilege of selecting horses out of those running in races, and of bets of as many as saw fit to do so, by purchasing checks deposited on baseball matches, where those who bet on the winning combination received the pool. Respondent had nothing to do with the races or matches.
Without discussing the limits of legislative power which may be conferred upon cities in such matters, it is clear that they have no inherent power over them, and cannot exceed the authority granted.
The statutes concerning lotteries, which go back into the territorial period, have from the beginning provided the same penalty of two thousand dollars as the fine which might be imposed. Act of June 30, 1828, (3 Terr. L. 687). This statute, which was “ An act to suppress private lotteries,” goes more into detail than the subsequent statutes, and shows very clearly that the evil aimed at was that class of schemes whereby large numbers of persons are enticed into purchasing tickets for the distribution of prizes in money or property upon some sort of drawing or allotment by chance. It is also to be noticed that one primary object
By the Constitution of 1835 (ai’t. 12, § 6) it was provided that “ no lottery shall be authorized by this State, nor shall the sale of lottery tickets be allowed.” There can be nc doubt what was meant by this language, and it clearly referred to the class of enterprises which had formerly been lawful if authorized by law, and criminal if unauthorized. The statute of 1828 covered all such cases adequately, and remained unchanged until the Revised Statutes of 1838, which introduced the sections now in force, and which has only been once amended, in 1867. Bev. St. 650.- This section covered originally two classes of offenses: First, lotteries as usually understood, with tickets written or printed, or some equivalent device securing shares in a distribution of prizes; and second, distributions by raffling. The penalty was unchanged. The reviser, both in his head-notes and in his index, retained the old idea of “illegal” lotteries, as simply prohibited offenses as against public policy. In the Revision of 1816 (p. 685) the section of 1838 was retained without variation. And in the subsequent compilations it is noticeable that this offense is classed in the same category with illegal banking and fraudulent stock issues, both of which are usually committed in such a way as to involve large amounts and numerous persons defrauded.
In 1867 (1 Sess. L. 1867, p. 122) an amendment was made inserting after the word “lottery,” when it occurred, the words “ or gift enterprises,” but in no other way varying thesubstanee of the statute, which still remains as then'
No one can compare the legislation of the State without seeing that the Legislature has found it desirable to deal with lotteries differently as well as more severely than with other gambling transactions. The reason is not difficult to find. Lotteries generally involve large sums of money, or large prizes of some kind, and circulate their tickets in large numbers and in all parts of the country. All classes and persons of all ages are tempted to invest in the chances of sudden riches, and it is a matter of history that the passion ■for such investment has led to serious and wide-spread mischief. No other form of gambling operates as extensively in its dealings or demoralizes so many people. It is this extensive reach and not merely its speculative purposes which makes lottery-gambling so dangerous. The profits are so great that small penalties might not be efficacious enough to suppress the business, and the changes of our own legislation indicate this by the successive addition of imprisonment in the county jail, and even in the State Prison, to the large fine first imposed in 1828.
It is not safe to extend these serious consequences by construction to cases which are not fairly within the language of the Constitution and statutes, especially as the Legislature has made provision for much lighter punishment in those cases of gambling which are more confined in their action, and therefore less likely to do mischief on a large scale. We think that it would be straining the law to include such acts as those of the respondent within the category of lotteries, and therefore we must treat the case as one which has not been placed by the Legislature under the classification of offenses which should be left to be dealt with by the municipal by-laws and ordinances, as well as by State laws. As already suggested, we are not now required
.The conviction must be quashed. We’ do not think it calls for costs of reversal.