118 S.W.2d 917 | Tex. App. | 1938
Lead Opinion
This is an appeal from the action of the trial court refusing, after hearing on notice, appellant's petition for temporary injunction which was filed on its behalf and in its name by the Hon. Charles Procter, County Attorney of Anderson County, and the action was brought expressly under Articles 4666 and 4667, R.S. 1925, Vernon's Ann.Civ.St. arts. 4666, 4667. The petition charges that appellee Robb Rowley United, Inc., which maintains in the City of Palestine a picture show business in three theaters (The Texas, the Ritz, and the Pal), and its manager, appellee J. F. Jones, are operating, and unless restrained will continue to operate, in connection with its picture show business, a gambling scheme or lottery on one night in each week, designated "Buck Night".
The evidence at the hearing shows that appellees in connection with the operation of their picture show conducted a "Bank Night", until the Supreme Court decided the case of City of Wink v. Griffin Amusement Company,
Appellant has furnished us with an able and exhaustive brief, discussing numerous authorities. Its principal contention is that the scheme of "Buck Night" turns the show house into a gigantic gaming table; that its entire purpose is to obtain bettors, though disguised as theatre patrons, and that appellees kept, exhibited and played such gaming table, or bank, on the principle of the one against the many. Reliance for support of this position is chiefly on Stearnes v. State,
"Section 47 of article 3 of the Constitution of this state [Vernon's Ann.St. art. 3, § 47] reads: `The legislature shall pass laws prohibiting the establishment of lotteries and gift enterprises in this state, as well as the sale of tickets in lotteries, gift enterprises or other evasions involving the lottery principle, established or existing in other states.'
"An analysis of this provision shows that the framers of the Constitution condemned in emphatic terms the establishment and operation in this state of (a) `lotteries,' (b) `gift enterprises,' and (c) `otherevasions involving the lottery principle.' Lotteries only have been prohibited by the Penal Code in accordance with the constitutional mandate. `Gift enterprises' and `other evasions involving the lottery principle' nevertheless remain and stand condemned by the Constitution of the state as being against public policy. It is hardly necessary to argue that the `Bank Night' plan of the defendant in error, if not a lottery, is at the very least a `gift enterprise involving the lottery principle,' and obviously an evasion of the lottery laws of the state. That `gift enterprises' are a form of lottery evasion is so well known that courts take judicial knowledge of the plan."
The opinion further states: "In fact, this court prior to the adoption of the [present] Constitution had judicially determined that enterprises such as that before us [`Bank Night' plan] were devices and subterfuges for evading the lottery laws."
And again:
"If it be granted that the plan of defendant in error's `Bank Night' was not a lottery because a charge was not made for the registration entitling one to participate in the drawing (and this is the only distinction which is here or could be made), then it clearly comes within the condemnatory terms of the Constitution, because it is a `gift enterprise' involving the lottery principle, which the authorities hold is that principle by which something is to be given by chance. 38 C.J. pp. 286 and 287, § 1, and authorities in note 8, and p. 289, § 3.
"In general, it may be said that chance is the basic element of a lottery. Unless a scheme for the awarding of a prize requires that it be awarded by a chance, it is not a lottery. As said in the case of State v. Lipkin,
"There are, however, in a lottery, according to the authorities, three necessary elements, namely, the offering of a prize, the award of the prize by chance, and the giving of a consideration for an opportunity to win the prize. 38 C.J. p. 289, § 2. But the Constitution condemns those things which fall short of containing all the essential elements of a lottery, namely, those things which involve the lottery *920 principle, of which `chance' is the one which constitutes the very basis of a lottery, and without which it would not be a lottery.
"An `evasion' is defined by Webster's International Dictionary as `act of eluding or avoiding,' or `avoidance by artifice.'
"Defendant in error's `Bank Night' plan was obviously an evasion of the lottery laws by the avoidance of a direct charge for prize chances (all other elements of a lottery being present), but, nevertheless, having the object of enriching the defendant in error by the `chance' of gain just as much as though a direct charge had been made therefor, manifestly an attempted `avoidance' of the lottery statute `by artifice' in accordance with the generally accepted definition of `evasion.' Therefore, defendant in error's `Bank Night' plan stands condemned by the Constitution of Texas. Being condemned by the Constitution, it is against the `public policy of the State'."
Applying the ruling made in the City of Wink Case to the facts of the present case, we hold that the "Buck Night" plan operated by appellees was not such a lottery as is denounced by the articles in the Penal Code thereagainst, but is an obvious evasion of the lottery laws by avoidance of a direct charge for prize chances. It is idle to contend that by superadding the contest feature to the drawing of the numbers from the container that the transaction is purged of its chance elements. That it in fact multiplies chance is too clear to require discussion. However, it is also clear that no direct charge is made to the participants. The requirement that the winner appear and claim the prize within three minutes from the time his name is announced at the entrance to the theatre undoubtedly operates as a tremendous pressure on anyone desiring to participate to pay the price of admission. That is undoubtedly its purpose. And it is equally obvious that the award is made out of funds accumulated from paid admissions. In short, the plan is a transparent evasion. And as such comes under the condemnatory terms of the Constitution. The "Buck Night" plan offends against the public policy of the State, and the Constitution contemplates that the legislature shall enact laws thereagainst. But, as pointed out in the City of Wink Case, the legislature has not as yet done so.
Furthermore, while the question is not before us, we have no doubt that the operation of the plan does constitute a public nuisance which is subject to be enjoined or ordered abated at the suit of the State. But not under the authority of Articles 4664-4667. For, as held by our Supreme Court, through the Commission of Appeals, "But Article 4667 clearly contemplates that injunction is not contemplated except in aid of criminal statutes clearly defining and prohibiting gaming and designated games." State ex rel. Shook v. All Texas Racing Association [
As already pointed out, it was stated in the City of Wink Case that an evasion of the lottery law, accomplished through means of a gift enterprise, is not denounced by any law in the Penal Code. It is certain that the framers of the present Constitution were of the opinion that statutes then in force did not prohibit such enterprises. The statute against keeping a gaming table or a bank, which appellant claims is being violated by operation of the "Buck Night" plan, was then in force. We will not further extend this opinion to show that the County Attorney did not have authority under Article 4667 to institute this action. The judgment of the trial court will be affirmed.
Affirmed.
PLEASANTS, C. J., absent.
Addendum
Motion for rehearing granted, former judgment of affirmance set aside, judgment of the trial court reversed, and temporary injunction as prayed for granted.
PLEASANTS, C. J., absent.
Addendum
Art. 4667 provides:
"The habitual use, actual, threatened or contemplated, of any premises, place or building or part thereof, for any of the following uses shall be enjoined at the suit of either the State or any citizen thereof:
"1. For gaming or keeping or exhibiting games prohibited by law."
Appellees do not contend, of course, that lotteries are not prohibited by law. Nor do we understand appellees to contend that the operation of a lottery is not, in common parlance, gambling. But what we understand appellees to contend is that when the history and circumstances of this legislation are considered, and the history and circumstances of legislation against gambling generally, and against lotteries in particular, are considered, it will be seen that Art. 4667 was not intended to apply to lotteries.
It is doubtless true that lotteries occupy a unique place in the history of legislation against gambling in Texas. Every constitution of our State from 1845 down, has contained provisions against lotteries similar to those in our present constitution. And it is true that no other form of gambling has been thus singled out, and expressly denounced. Various reasons may be assigned for this. Other governments at various times have resorted to lotteries as a means of raising money. And in Lee v. City of Miami,
We are not disposed to contest the proposition that "Lotteries are generally classified as a species of gambling, though the statutes dealing with them and other forms of gambling have recognized a clear line of distinction between them. This distinction has been recognized by different degrees of punishment and by the ascription of different attributes to each". Lee v. City of Miami,
"Art. 10. [5502] [3268] General rules
"The following rules shall govern in the construction of all civil statutory enactments:
"1. The ordinary signification shall be applied to words, except words of art or words connected with a particular trade or subject matter, when they shall have the signification attached to them by experts in such art or trade, with reference to such subject matter. * * *
"6. In all interpretations, the court shall look diligently for the intention of the Legislature, keeping in view at all times the old law, the evil and the remedy. * * *
"8. The rule of the common law that statutes in derogation thereof shall be strictly construed shall have no application to the Revised Statutes; but the said statutes shall constitute the law of this State respecting the subjects to which they relate; and the provisions thereof shall be liberally construed with a view to effect their objects and to promote justice."
Applying these statutory rules of construction to Section 1 of Article 4667, reading: "1. For gaming or keeping or exhibiting games prohibited by law"; how is it possible to say that lotteries are not included? The word gaming includes lotteries. State v. Randle,
Appellees' motion for rehearing is refused.
Motion refused,
PLEASANTS, C. J., absent. *923