*1 46,636 No. Nelson, Helen L. Hutton Appellant,
State Kansas, Victor Culver, Appellees. E. and Joseph (502 841) 2dP.
Opinion filed 4, 1972. November Jr., cause, attorney argued Miller, general, Collister, Edward G. Vern *2 Btishey, county attorney, attorney general, H. were with and Mitchell
assistant appellant. the brief for the him on argued Talkington, Talkington, Iola, Robert V. & of the of Conderman firm, Conderman, cause, D. of him the brief for and the same was with on J. appellees. the the The of court opinion was delivered Criminal filed court charges were in the district of Owsley, J.: Kansas, Allen three for against each of defendants violating County, gambling laws. a trial to the court district court Following the a matter of as law that the conduct of the defendants as ruled forth in not a violation of K. S. A. 1971 set the informations was and 21-4307 21-4303 in of K. S. 21-4302 Supp. view A. 1971 Supp. The state (1) (d), (2), (3), (4). appeals. charges gambling criminal as of a raid originated
The result 18, 1971, Iola, agents date conducted on Kansas. On that June Legion entered the Iola American general’s the office attorney defend- entering agents the observed two Upon persons, Club. Culver, Hutton and in close to five slot machines. proximity ants from the taking Hutton coin appeared Defendant money the Defendant Hutton admitted on one of machines. return playing had been the machines earlier that she direct examination Culver, according special agent of a evening. testimony office, had his hand on the handle one general’s attorney of the machines, and after the the room. agent released it entered of the at room was agents the time the entered the he testified Culver machines, had but admitted that he not played playing earlier. machines slot acting club manager Nelson was the American
Defendant the slot He admitted that he had ma- club. Legion custody them, that he the slot up had set ma- keys and the chines It during the was testified testimony. that were identified chines the club above machines went to treasury. funds from the club, a Class A licensee of the club was stipulated It was and that club was Beverage Agency, Control exempt Alcoholic Tax Income under Internal the Federal from Act. Revenue of a charged possession with gambling Nelson was
Defendant
441 Defendants Hutton device, 21-4307. Supp. to K. S. A. 1971 contrary A. with K. S. violation gambling and Culver were charged 21-4303. Supp. the conduct dis- The trial court held as a matter of law criminal as violation alleged closed evidence so-called a crime because laws of the state did not constitute adopted definition of “bingo” exception legislature. 1971 Kansas in this agree only presented appeal one there issue “bingo games
and that is whether the phrase characteristics,” 21-4302, in- as it is used in K. S. A. 1971 Supp. machines. cludes slot
The new Kansas Criminal Code 1969 Session (Chapter state as to The former Laws) gambling. revised the laws statutes, 21-936, S. A. 21- through K. 21-915 21-1501 through approached gambling by prohibiting specific activities. *3 of the new conduct approach attempts prohibited code define in a code also amended general way. new the procedural in former were contained law. the 1971 session the amended laws in Section 1 K. S. A. 1971 Chapter (now Supp. 21-4302). pertinent Portions of the amendment to this are as follows: appeal that, bargain parties agree dependent “(1) upon A “bet’ is a in which the chance, something specified agree- one stands to or lose of value in the win ment. A bet does not include: bingo game game comparable “(d) Any or a of chance with character- by by organization exempt participants or for conducted an from tax istics (10) paragraphs (4), (7), (8) (c) (3), under of subsection of section amended, part gross if revenue code of as 501 of the internal activity any private receipts derived from such inures benefit share- organization, except compensation holder, employee as or of such for member activity expenses by pro- of such actual incurred him in the conduct by officers, game operated employees or is conducted vided that such compensation organization or of such without therefor other than members officer, employee performance or member is entitled for that to which the any regular duties, by agreement person or contract with other and not his compensation provided. organization or is for which consideration lottery’ enterprise participants “(2) an for a consideration the A is wherein prize, by given opportunity to the award of which is determined an win chance. “(3) ............. subsection, sums term ‘consideration’ shall not include “As used in this any bingo game game money by participants paid in or a of chance or for (d) defined subsection of this section characteristics as conclusively presumed paid and it such sums or for said shall be participants participants to be the benefit of the were intended said for organizations (d) described in subsection of this section for the use of such organizations furthering purposes organizations, in of such as set forth paragraphs (3), (4), (7), (8) (10) (c) of subsection of section 501 of the internal revenue code as amended.”
A slot designed machine is and utilized as a gambling device. State, rel., We held ex v. Myers, 152 Kan. 102 P. 2d that a slot machine is a gambling per se. Other states have device Brotherhood, found slot machines to be lotteries. (State Friends, 1952], 247 P. 2d [Wash. council notes appended to K. S. A. 1971 21-4302 Supp. state “slot is machine probably the most familiar type gambling device.”
Bingo may provide fun and amusement to adults children without prizes and without consideration. as Bingo used statutes, however, above contemplates payment for the right play and contemplates the award of prizes. This is since the apparent statute provides “consideration shall not include money sums of paid” to take part a bingo game provides the money paid for benefit of tax exempt organizations. As we refer to bingo in this opinion it is labeled in accord with the statutes as a game for which a consideration is for paid right to participate.
The defendants contend these statutes should be strictly construed against the state and when so construed slot machine falls within the exception. Defendants also contend the burden of proof the state and the record in this case does not furnish a basis for convicting the defendants without engaging in speculation and extending judicial notice its beyond legal concept. Defendants argue further and slot machines are comparable in all characteristics except bingo involves group participation while *4 the use of slot machine is a lone wolf operation. They further is not argue reasonable to believe the legislature could have intended to the against discriminate individual who chooses to by himself rather than to gamble join group fellow gamblers. state contends that slot machines are not games of chance characteristics”; hence, “with are not they exempt from of the penal the laws. gambling The state’s argument a combination of the distinguishing characteristics of and slot bingo machines, determining legislative intent. The state points out that the trial court concluded slot machines have the same characteristics- as bingo since each involves elements con- sideration, and chance. The prize argues state the import trial court’s form any conclusion would allow of gambling by all exempt organizations since lotteries have the characteristics of consideration, and chance. prize
The parties
argument
have limited their
to the issue above stated.
In
distinctions
similarities
discussing
and slot
machines, both
refer to the definition of
lotteries as judi-
determined
this court. The assertions of each
cially
intermingle
lottery.
and intertwine the elements of a
This is unavoidable since
of this court
to
relating
all
declarations
are
focused
a lottery.
on and centered around
definition of
We are exposed
We
difficulty
litigants.
same
as the
cannot
intelligently dis-
without
litigation
considering
of this
the ele-
pose
discussing
so,
In
cannot
doing
ments of a
we
avoid
a deter-
lottery.
making
the so-called
law.”
constitutionality
“bingo
mination of the
122 Kan.
251 Pac.
City.,
In
Kansas
we
Keplinger
approved the
from
“. . unless . We cannot undertake to determine a constitutional necessary questions it is to a and the determination decision of the involved required. (p. 177.) constitutionality imperatively . of a statute is . .” State, District, rel., We held in ex 163 Kan. v. School P. 2d 677: ought “. [T]his . . court not to consider the particular necessary facts statute in a decision and that under the not necessity.” cause, (Syl. 8.)
of the
there
no such
f
Brown, 183 Kan.
Commissioners v.
County
We held
Board of
19,
pleadings presented to the court.” lower f and Clewell Keplinger decisions in wisdom into the unrequested an inquiry arise might justifying situation *5 444 facts manifested presented statute of a is
in this case. “Lot- 15, Constitution provides: 3 of Kansas
Article Section tickets are forever prohibited.” of lottery teries and sale borrowed undoubtedly was provision constitutional Although this statehood, it is admitted to apparent from states previously determined conscientiously of this state framers of constitution a a lotteries forever was method promoting that prohibiting its of this state. Since growth sound basis for welfare organiza- efforts been made many persons have adoption, Such this constitutional efforts have provision. tions to circumvent made for elicit from profit, seeking money been those generally cannot from the instinctive weakness of humanity who refrain gamble. has adhered to constitutional steadfastly
This court provision efforts. State ex (The down such rel. v. by striking Mercantile Association, 351, 984, 45 Kan. 25 Pac. prizes [distribution Smith, Petitioner, chance]; 702, 707, In 54 Kan. re 39 Pac. [sale State, tickets]; Association, 238, ex rel. v. Fair lottery 89 Kan. races]; State, 626, rel., 131 Pac. on horse ex v. Fox Kansas [bets Co., 687, 929, Theatre 144 Kan. 62 P. 2d bank night]; [theater City Stevens, 408, 386, Wichita v. 167 boards]; Kan. 207 P. 2d [punch Brown, 166, 1190, Kan. 244 State, State v. P. 2d [punchboards]; rel., 111, Bissing, ex v. 178 Kan. 283 P. 2d [parimutuel betting dog races].)
It firmly has been established from these cases as the law of this elements; a has essential lottery state three namely, con- (1) sideration, chance. (2) prize, (3) State, rel., Service, Inc., Highwood ex 205 Kan. 473 P. 2d we held of a dial a turning television set to a certain which awarded program prizes did not constitute “con- sideration” within the of K. S. meaning A. 21-1501 (repealed L. and Article ch. Section 3 180) of the Kansas Constitution. at 825: We also stated page against may “But constitutional while the ban self-executing, lotteries self-defining. nature,
it is not That function devolving upon is courts. . . .” a essential difference between constitution a statute constitution states usually general principles or policies, establishes foundation of government, law and whereas a statute must the details of provide the subject of the statute. A constitution, conditions, existing meet statute, merely intended not unlike *6 but to future govern contingencies. principles declaration of a a usually constitution is
Although to commands law, only being fundamental of its many provisions the framers purposes the to to out the legislature carry laws enact constitution, who it within the of those entirely power the make of its any provisions establish and constitution to adopt the and the Our constitution a ban on lotteries sale self-executing. put of lottery unambiguous emphasized tickets in terms and plain, intent of “shall forever language the framers use of be in a in this state.” constitution prohibited Prohibitory provisions to that in self-executing the extent done violation of anything them is void.
It is the function and court to duty define constitutional The provisions. definition should achieve a so consistency not shall be taken to mean one at thing one time and another at another time. It is thing the nature of the judicial process the construction equally becomes as controlling upon the legislature as of the state of the provisions constitution itself. C. (16 S. J. Law, Constitutional 13.) Any attempt by § to ob- literate the constitution so construed the court is unconstitutional legislation void. Whenever the legislature enacts laws pro- hibited by judicially construed constitutional provisions, it is the duty the courts to strike down such laws.
The legislature, by enacting the
in question,
statutes
to
attempted
declare
“consideration” shall not include money paid to par-
ain
ticipate
bingo game. The legislature,
effect,
in
to
sought
“consideration”
remove
as
of the
one
elements of a
lottery.
so
doing,
legislature exceeded its constitutional power. The con-
stitution must be interpreted and given effect as the paramount
state,
law of the
according to the spirit and intent of its framers.
A
enactment in
legislative
evasion of the terms of the constitution,
as properly interpreted by the courts and frustrating its general
clearly expressed
or necessarily implied purpose, is clearly void.
fact
that the statute prohibits a profit to any private share-
holder, member or
of an
employee
organization exempt from tax,
create
does not
for an
immunity
enterprise which violates constitution. We cannot insert into our constitution
an
exception
framers failed to make. Their reasoning could
in accord with
have been
Harriman Institute
Social R. v. Carrie
Tingley C. C.
43 N.
Hospital,
M.
It to express any opinion respect to the moral of aspects operators either or of We players bingo. many that look recognize respectable persons bingo as an upon recreation, innocent and harmless and the benefits of are bingo religious to worthwhile and charitable frequently applied purposes. of the it is our that foregoing holding view the bingo exception laws passed by is unconstitu- We refer to K. S. A. 1971 21-4302 Supp. tional void. (1) (d), third of K. S. A. 1971 21-4302 paragraph Supp. and the (3). sustained. Appeal concurring: simple On the and sole J., question presented,
Kaul,
e.,
a game
i. whether
slot machine is
of chance with
playing
I
bingo,
agree
characteristics
state’s
appeal must
However, I
cannot
agree
sustained.
the determination of
necessitated consideration
this
of
constitutional
simple question
raised, briefed,
neither
argued
suggested
which is
nor
question
by
As
out in the court’s
pointed
either
on
it
appeal.
opinion,
is
party
in this
jurisdiction
established principle
the constitu-
firmly
not be determined in any
of a statute
case unless
will
such
tionality
or
determination is
required.
absolutely necessary
imperatively
413;
v. Kansas
122 Kan.
251 Pac.
and Clewell
(Keplinger
City,
District,
115 Kan.
222 Pac.
74.)
School
restraint assidu-
exercised heretofore
this court in this regard is demon-
ously
strated
treatment
in the case National Van
given
subject
case, even
Jones,
In the
Lines v.
unless before par- appeal on has court considered sented to and a trial will be decided constitutionality application pertaining of a statute.” ticular to matters (Syl. f appeal on points While the state in its designated statement validity that the trial on the court erred in rule declining to urged was legislation, question no claim is made that the of uncon- submitted to the assertion certainly court below stitutionality is oral argu- made on questioned court. When matter, ment stated concerning the general positively attorney that he did not the act challenge question. constitutionality restraint in attacking the legislative constitutionality
Judicial acts is not a rule casually conceived for the purpose avoiding the performance of judicial duty, rather principle premised is valid, substantial grounded reasons process orderly and the doctrine separation powers. restraint and the Judicial reasons therefore in this regard are recognized. In 16 universally 2d, Am. Law, Constitutional p. this statement § Jur. appears: “It practice has been stated that invariable the court never to con- is legislation
sider required.” imperatively of state unless (p. 298.) It when *8 only the determination of becomes the course of a proper and the necessary judicial proceeding, issue is raised, that a court can or should undertake such sufficiently a consideration. The to declare a act power legislative unconstitu- tional one, is a delicate a involving great and should responsibility, reluctance, exercised when such cautiously only S., conclusion is .Law, unavoidable. C. (16 Constitutional pp. § J. and court, some recognize of the decisions of this but majority rule, after face coming to face with the and long-standing salutary come to the conclusion that the justifies instant case a departure I hold I therefrom. because find no absolute neces- contrary or sity imperative the requirement constitutionality, on motion on appeal. statute in be determined our own question from assert- been precluded so either or both have doing By in- a with the issue ing a or record connection position making be, evidence, there on bearing the of if cluding presentation any the question. count, three, informa- instigated filing
This case was the one a tions; Nelson with possession defendant respectively charging 21-4307, and defendants device under K. S. A. 1971 gambling Supp. gambling in a remaining place Hutton and with entering Culver The states S. A. 1971 21-4303. Supp. with intent to under K. gamble machines seized and the five slot identifying evidence consisted tire and Hutton were seen showing that defendants Culver playing slot machines. The trial court viewed five personally machines. a conviction on each of support sufficient to The evidence is fully the charges. aof as what showing
Defendants’ evidence consisted primarily It stipulated from the machines. was done with taken was money Club was under exempt pertinent American Legion Act. The evidence con- only the Internal Revenue characteristics was the brief testimony its cerning “bingo” in the record as follows: which appears Donald Bain ‘ Bingo game High principal is a School. chance where at Iola “I am placed comparable on of a and markers are then out box numbers are drawn players. prize The winner or receiver of a cards used numbers on Bingo game.” in a row. is a common one has five markers who slot machines in- On record the trial court found that were characteris- phrase “bingo games cluded in view, in K. S. A. 1971 21-4302. In Supp. my tics” as appears finding. the trial court’s totally support evidence fails meager Moreover, than the to find go dictionary need no further one Third New Webster’s International distinguishable. two terms defines a slot machine: Dictionary (unabridged) drop- (as vending operation machine) is started a whose “1: a machine pays operated ping coin a slot 2: a coin machine off a into matching symbols spun by according a handle —called on wheels also (p. 2146.) one-armed bandit.” the characteristics of are described as: “bingo” While keno, being grid game resembling the card used “la: lotto or win, in a direction constitute a five numbers that are covered row square being already center counted as an drawn number —called also beano game petty gathering played b: a social at which 2: dice with usu. (p. 217.) merchandise as stakes.”
449 A se gambling per slot machine has been declared a device 52, rel., 2d 1028. court. ex v. 152 Kan. 102 P. Myers, (State, See, also, State 101 N. 2d 156 Ohio St. E. Shaffer, Club, State v. machines 124 2d Slot Joyland Mont. 220 P. have been particular attention specifically given defined previous 21-1507, A. 1508 and since re- legislatures. S. (K. hand, pealed. require which Bingo, on the other is a would ) game some was evidence in game being order to establish that the played under either former or statutes. gambling present briefs, While the in their which frequently use terms used in arguments cases their dealing lottery gambling, are clearly bingo directed to the issue whether and slot machines have is comparable characteristics. The constitutional question neither nor and I find briefs or argued suggested nothing arguments case which the consideration thereof. This is compels statute, not a an a circum- prosecution based on unconstitutional stance question. which would to a give jurisdictional rise
No case has come my attention wherein this has estab- court lished a standard for might what amount to or necessity” “absolute “imperative requirement”; apparently, for simple reason heretofore those prerequisites have found never been exist in a case such as that before us. showing there Certainly compelling emergency the instant justifies disregard- case ing propriety in the restraint delicate function of striking down acts of the legislature. case,
In this has appears attempted exempt from bingo the constitutional provision lotteries prohibiting statutes by deleting the element of consideration from this court’s definition of a lottery, when played in thereof, proceeds if to a tax or any, go exempt so-called nonprofit club as described in the statute. The exemption of certain opera- tions carried by religious, charitable or other nonprofit organiza- tions from constitutional and statutory prohibitions against gambling is not a new novel subject legislation. 3d, 42 L. R. (See A. Anno, 663-674, pp. and cases discussed In several in- therein.) stances, example, for Greater Loretta Ass’n v. Ex Imp. State Rel. Boone, 1970], 2d So. were statutes upheld. many [Fla. other cases statutes have been stricken when the constitutional question has been properly presented jurisdiction involved. An examination of the cases reveals that questions the constitutional *10 when raised difficulty not resolved without some even properly
and presented. the statute concerning
I opnion voice herein, a clear that deter- showing but in the absence of involved necessary, issue was I mination of the constitutional believe court, thereof sua sponte pre- determination the record sented, under the circumstances violation improper this court. adhered long rule