136 Mo. 400 | Mo. | 1896
The defendant was prosecuted under the provisions of an act approved March 12, 1895, in relation to bookmaking and poolselling. Being tried, he was convicted and sentenced to pay a fine of $1,000, and to be imprisoned for six months in the city workhouse.
The act on which this information is bottomed, is the following:
“An act to prohibit bookmaking and poolselling at any place other than upon the premises of regular race courses, with emergency clause.
“Be it enacted by the Q-eneral Assembly of the State of Missouri, as follows:
“Section 1. That any person who keeps any .room, shed, tenement, tent, booth or building, or any part thereof, within this state, and who occupies same with any book, instrument or device for the purpose of recording or registering bets or wagers, or selling pools upon the result of any trial or contest of skill, speed or power .of endurance of man or beast, which is to be made or to take place within or without this state, or any person who records or registers bets or wagers, or sells pools upon the result of any trial or contest of skill, speed or power of endurance of man or beast, which is to be made or take place within or without this state; or, being the owner, lessee or occupant of any room, tenement, shed, tent, booth or building, or any part thereof, knowingly permit the same to be*403 used or occupied for any of the purposes herein above set forth, or therein keeps, exhibits or employs any device or apparatus for the purpose of recording or registering such bets or wagers or selling of pools as are hereinabove set forth, or becomes the custodian or depository for hire or privilege of any money, property . or thing of value which is staked, wagered, or pledged contrary to the provisions of this act, shall be guilty of a-misdemeanor, and on conviction shall be punished by imprisonment in the county jail for a term of not less than six months or more than one year, and by a fine of not less than one thousand dollars, or by both such fine and imprisonment: Provided, that nothing in this act shall be so construed as to prohibit or make it unlawful for any person to engage in or register bets and wagers, make books, sell pools or bet upon any trial or contest of speed of a horse, or between horses, on the premises or within the limits or enclosure of a regular race course on which such contest of speed is had, and at and prior to the time thereof: Provided, that it shall be unlawful to make and sell said pools or book-bets to minors; and any person selling said pools and book-bets to any minor shall be deemed guilty of a misdemeanor, and upon conviction, shall be punished by imprisonment in the county jail for a term of not less than three months or more than one year, and by a fine of not less than five hundred dollars.
“See. 2. All acts or parts of acts inconsistent or in conflict with the foregoing section are hereby repealed.” Laws 1895, p. 150.
The paramount issue presented by the record in this cause, may take the form of the question: Is the act just quoted constitutional?
It will be noted that the act does this:
First, it makes it punishable as a misdemeanor for any person who within this State, keeps any room, etc.,
Second, a misdemeanor .for any person who thus records such bets, etc., or sells pools, etc., etc., etc.
Third, a misdemeanor for any owner, lessee, or occupant of any room, etc., knowingly to permit the same to be used, etc., for any of the purposes aforesaid.
Fourth, a misdemeanor for such person to keep in such room, etc., any device, etc., or exhibits, etc., for-■the purpose of recording bets, etc., etc.
Fifth, a misdemeanor for any one to become the-custodian of any money, etc., which is staked, wagered, or pledged contrary to the provisions of the act.
The act thus creates five different kinds of misdemeanors, while a proviso in the same section which creates these offenses, prohibits such 'a construction of' the act as to make it unlawful for any person to register bets, make books, sell pools or bet upon any trial or contest of speed of a horse or between horses on the-premises or within the limits of inclosure of a regular-race course on which such contest of speed is had at and prior to the time thereof. After this proviso, there-is a second one making it a misdemeanor to make and sell such pools or book-bets to any minor.
With the exception of the first proviso, the act is. substantially identical with the act approved April 1,. 1891. Laws of that year, p. 122.
. One of the ideas which conspicuously stands forth, in our organic law is that provision which declares: “That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or-making any irrevocable grant of special privileges or-
Now, doubtless the first constitutional provision already quoted does not apply to the case before us, because it relates to an “irrevocable grant of special privileges or immunities,” and it has only been quoted as showing in a general way, the strong animus of our constitution framers against such grants.
But equally doubtless it is that section 53 of article 4 of the constitution as heretofore set forth, does apply in the present instance, provided the act under review is a special law. That it is such a law is demonstrated by the fact that it takes bookmakers, pool sellers and betmongers as a class, and divides them into two portions, one of which, to wit, that portion which assembles “on the premises or within the limits or inclosure of a regular race course,” and renders the members of that portion immune from punishment, while another portion of the same genus, bookmaker, pool seller or bet-monger who pursúes his avocation outside or immediately outside of the sacred precincts of “a regular race course,” is doomed for doing the very same things to fine or imprisonment or both.
Now it is a rule of long established construction in this state, a rule so well settled that it admits no contravention, “that a statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is special.” State ex rel. v. Tolle, 71 Mo. 650; State ex rel. v. Herrmann, 75 Mo. 340; State v. Julow, 129 Mo. 163.
Judge Cooley says: “A statute would not be constitutional * '* * which should * * * select particular individuals from a class or locality, and subject them to peculiar rules, or impose upon them special obligations or burdens from which others in the same locality or class are exempt. * *' * Every one has a right to demand that he be governed by general rules, and a.special statute which, without his consent, singles his case out as one to be regulated by a different law from that which is applied in all similar cases, would not be legitimate legislation, but would be such an arbitrary mandate as is not within the province of free governments. Those who make the laws £are to govern by promulgated, established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at court and the countryman at plough.7 This is a maxim in constitutional law, and by it we may test the authority and binding force of legislative enactments.77 Cooley, Const. Lim. [6 Ed.], 481-483.
If such an act as that being discussed can stand the test of judicial scrutiny, then the above recited provisions of section 53 aforesaid, relative to the prohibition against granting by special law any special or
And the fact that the present statute only creates a certain misdemeanor and provides punishment therefor and exemption therefrom, does not affect the principle here announced and involved nor enlarge the powers of the legislature in this behalf. In a word, it is quite beyond the power of the legislature to enact even a general law for the punishment of a crime all over the state, and then make that same criminal act nonpunishable if perpetrated in certain favored localities.
Nor can the act in question be rescued from judicial condemnation by assuming the label of a mere police regulation. The right of the citizen to constitutional equality, to the equal protection of the law, can not be trampled under foot under the thin disguise of such an assumed regulation. State v. Julow, supra.
Nor will it do to say that the proviso aforesaid may be disregarded, and defendant still be punished under the previous portion of the section on which this prosecution is based, since it is obvious that the act was enacted as an entirety, and would not have become a law but for the incorporation within it of the obnoxious immunity proviso.
We have been cited to State v. Burgdoerfer, 107 Mo. 1, but that case has no bearing on the case in hand, since the act of 1891 contained no such proviso.
