41 Del. 182 | Del. Super. Ct. | 1941
Section 17, Article II of the Constitution, forbidding all forms of gambling, was amended by adding the following: “except wagering or betting on races at race tracks by the use of pari-mutuel machines or totalizators in connection therewith.”
By Section 5510 of the Revised Code of 1985, the Delaware Racing Commission may authorize commissions on pari-mutuel or totalizator pools to the operators of race meets, provided that such commissions, when added to the amount payable to the Racing Commission for the use of the State, shall not exceed six percent of the total contri
The defendant is a licensee of the Racing Commission. At its race track the pari-mutuel system of wagering with a totalizator was, of course, used. Wagers were accepted only in the amounts of two, five, ten and fifty dollars, and in three ways, “straight,” “place” and “show,” the pools being kept separate.
Although $1 wagers were not received, nevertheless the calculations with respect to the several pools in any race were made on the basis of a wager of $1. The odd cents thus shown were multiplied by the number of dollars of the wager, this amount was deducted as “breakage” and retained by the licensee. This method of calculating breakage was, it is agreed, in accordance with the custom followed in this country; and the practice was known to the plaintiff.
On May 29, 1940, the plaintiff wagered the sum of $5 that a certain horse in a certain race would “show”; and the horse was one of the first three finishing the race. On the wager made the amount payable calculated on the basis of $1 was $1.26. Multiplied by five, the number of . dollars wagered, the result was $6.30; and the plaintiff contended that on his wager, or contribution to the pool, there were no odd cents and, therefore, no “breakage.” By the defendant’s system of calculation, the “breakage” was 5 cents. The plaintiff’s demand was for the sum of $6.30. He was offered, and he refused, the sum of $6.25.
The defendant first contends that its method of computing “breakage” is in strict accord with the pari-mutuel system, and is the only method contemplated or permitted
It may be agreed that the term “pari-mutuel” has a technical meaning and was used in the technical sense. The system, however, is nothing more than a division of the pool among the successful contributors in proportion to the respective contributions, or wagers. The totalizator is the mechanical device by which the betting public is informed rapidly and accurately of odds and results, and is protected against human errors and malpractices. The Legislature, in amending the Constitution and in enacting the statute, proceeded on the theory that, as a certain part of the public would gamble on races notwithstanding prohibiting laws, the public welfare would be better served by legalizing a particular manner of gambling which by experience had been shown to be the most equitable and free from evil practices incident to straight wagering through book makers. The flaw in the defendant’s argument is the assumption that “breakage” is an essential part of pool wagering. Authority for the assumption is not to be found in the language of the Constitution, and if the statute were entirely silent as to the deduction of odd cents from the amounts wagered, it would not be violative of the constitutional provision. We are not informed of the origin of “breakage”, but it is fairly safe to say that the custom by which the race promoter retained odd cents of the
Clearly breakage is not an essential of the system of pool wagering; and the permissive language of the Constitution may not be twisted into a mandate by which “breakage” must be provided for in any legislation enacted under the Constitution. We do not pursue the thought that “breakage” is utterly foreign to the system, and therefore without constitutional sanction. The system would remain the same as one assuring practical fairness and equality if no “breakage” were allowed at all. Being a thing apart from the system itself, arising out of mere inconvenience and constituting a source of large income to the promoter, the legality of withholding from the successful bettor the odd cents which otherwise would be paid to him, must depend on the language of the statute.
First the admitted custom is relied on; but the purpose and meaning of the Legislature primarily must be ascertained from the language of the statute. There is no room for construction where the language is plain and unambiguous and its meaning clear and unmistakable. In such case the Court is not allowed to search for a meaning outside of the language. Rules of construction are useful only in cases of doubt; they are never to be employed to create a doubt. Russell Motor Car Co. v. United States et al., 261 U. S. 514, 43 S. Ct. 428, 67 L. Ed. 778. Ex
In this same connection it is argued that as the totalizator is a necessary adjunct to the system of wagering, and as its results are shown only in the terms of $1, “breakage” must be calculated in accordance therewith. It was not, however, the purpose of the constitutional provision to define or describe the mechanism known as a totalizator. Certainly the machine has been greatly improved during the years; and we should hesitate to say that it has reached the limit of improvement. Whatever may be its practical limitations now, it cannot be said that the present form of machine is the only one within the contemplation of the constitutional provision.
Feeney v. Eastern Racing Association, Inc., 303 Mass. 602, 22 N. E. 2d 259, is relied on by the plaintiff in support of his position. There it was held that “the breaks” as defined by the statute was not a part of the pari-mutuel system; and that, under the language of the statute, successive breaks could not be deducted from a single wager. The statute, G. L. (Ter. Ed.) Mass. c. 128A, § 5, as amended by St. 1936, c. 351, required the racing management to return to the winning patrons all sums deposited as an award or dividend, “according to the acknowledged * * * rules and method under which such pari-mutuel or certificate system has been operated” less the breaks. The term, “breaks”, was defined as the odd cents over any multiple of 10 cents otherwise payable to the bettor. The defendant seeks to distinguish this case from the one sub judice on two grounds: that the Massachusetts Court was not confronted with a constitutional provision, and that the language of the statute was essentially different. The constitutional provision has no real bearing. All that it does is
As a result of the decision the Massachusetts statute was amended by defining breakage to be the odd cents over any multiple of 10 cents of winnings per dollar wagered.
Lastly it is argued that, if the plaintiff’s contention be correct that the defendant’s method of computing breakage is not warranted by law, hp is suing on an illegal contract, and the law will not aid him in his effort to enforce the contract. The argument is specious. Whatever the defendant may have offered, and whatever the plaintiff may have tacitly accepted, with respect to the method of computing “breakage”, did not constitute the
The contract between the parties was governed by the statute. “Breakage”, under the statutory definition, is referable to the contribution to the pool as it was made. Successive “breaks” cannot be deducted from a single wager.
Judgment, without costs of suit, as was stipulated, will be entered in favor of the plaintiff in the sum of $6.30.