Case Information

*1 OFFICE OF THE AlTORNEY GENERAL OF TEXAS

AUSTIN ._ .r

Ronorable X.0. Flowers i Secretary of State

Austin, Texne

Dear Sir: Attention of Mr. Will ~e&Rfchardaon is% ',

+plnion flo, 0&3f3.--~ Re: CorporatlonLy~~Furg&e blause - Innocent aprmte. .~' .'. ',~ Your roquest for

c~i'ullg considered w this,

request a0 L"ollova:

he members mag from time to time deter- tie.'

"We vould ap:,?reclate an opfnlon from you as to vhether such purpose clause ia authorized In Texas, and whether it comes within the innocent sporta aub- dtvlsion of Article 1302."

The purposes for whloh private aorporationfi ma? be formed in the State of Texa6 are enmmrated in Article 1302, Vernon's Annotat&d Civil Statutes. Se&ion 9 of said artltle

306 Honorable M.O. Plovers, Page 2

reads am follows:

“9. To support and maintain bicycle clubs, mad other Innocent mport.8."

Webmter'm Iiev International Dlotlonary, 2nd Edition, defines the terms "bridge", "8hlmt" and "mport", am followm$ - A card gam derived from vhimt, etc.

“EPldgO "Whist - A card mm for faur player8 played withapaakof5 ?--i&k G

"sport - 3ome partleular play, gmmI8, or mode of mxmamementj amt (1) a d.tvsrmion of the field, am fowling, hunting, fishing, raelng, -8, emp. ath%otle g-em, and the like1 also any of various chl1m.r gaPem OF dlvormion6 umually played un$er aover, am bovling, rackets, bmmkmtbm~, ho.

The came of 3mlth vs. Worthmm, 157 3W 741, held that under Rev. Stat. 1911, Article 1121, mubd. 36, permitting the fomtlon of bicycle clubs mnd “other inuoaent sports," a aor- porate charter naming In its purpose olaumo an automobllo crlub, the purpose and objeat of which shall be to promote innooent by mean8 OS automobtlee, vam inmuSSlc%ent, 8Inee a sports definite lnnoaent sport must be named, vhlah the charter did nat do. The earn8 also held that,the rule of "ejumdem generlm* dld not apply, mince the.tena "@oyolo elubm" vam used ln the 8enme of a distinct and lndivldtil tnnooent sport, complete within itself and separate in ills ldentltp. The oame almo held that the aubdiolmlon of the l tmtute was not invalid beaaume delegating by the quoted clause "other Snnooent mport8" legis- lative power to the Setretary of State to determine what aor- poratfonm mmg be formed. We vimh to paint out however that mince the rendition of maid same, the Legislature In 1929 pasm- ed Seatlon 91 of Article 1302, V.A.T.C.B., which authorlmem the creation of corporations Soor the purpore of forinbg auto- mobile clubs. 615, Vernon's Annotated Texam Penal Code, Article

readit am Sollovat , or bet or wager mny aor4r~r Whoever shall or othzxisg of any place not a private mxnoe at mny-gmmm of awls at

ooaupied by a *3 Bonorable M.O. Floverm, ?mge 3

Samllx, shall be fined not exceeding fif%y dol- lars. (Undermaorlng ours)

It la an offense to play cards even without betting mt any place, except at a private rmmldenae occupied by a sma11y. See the following oam4mr

Elliott vs. State, 127 SW 5473 Borders vs. State, 6 SW 532% Oallegam vs. State, 95 3W 124; Lamar vs. State, 95 SW 511. 617, Vernongm Annotated Texas Yens1 Code, Article

reads as Sollovm~ "The provlrlonm of the two preoeding articles which permit gsmfng at a private residence oaeupied by a family shall n&t apply in came much residence im one oomunonlg r&orted to for the purpose of gmm- ing, nor vhere the gmme played la m banking gmme."

This department held in an exhaustive conferentre opinion vritten by Eon. C.M. Cureton, First Ammimtant Attorney General, (later Ohle? Sumtiae of the Su reuse Court of Texas) dated February 20, 1915, printed in 191 B -1916, Reports of the Attorney Oenmral, pmgem 454-470, in&, that pool mnd billiard alubm could not be ahartermd under the purpose clause which authorized the formation of aorporatlonm "to support and main- tain blcgole clubs, and other innocent mportml beoaume maid amusements of pool mnd billiards WON) Agamwmn mnd not "nportm.* We quote frorm maid opinion am follovmt

%%e games of pool and bllllaldm am eomnly understood are not sports in thm usual and ordln- ary sense of that vord, but are guaem and there- fore are not eabraoed vlth5.n thm terse, mnd pmvl- &ions of subdivision 56 of Artlele 1121.

"The use of words and phrmmem and the meaning attached to thmm~ may be detsrm&ned by their mtatu- tory use, their judlaial, 001Zoquial and teehnlaal uue and by their literary and historical emfployiment . . . . have likevlme ton- “The courts of othei; state4

mtantly and continuoumly referred to the axsuaoxmsntm known as pool and bflliardm as gmmem arsd almam8d *4 Ranorable #.O. Flowerm, Pm,ge 4

theme mmnxmemmntm, aa does our statute. along with cards, checkers, e~c....~Undermaorlng ours]

"The City of Clearwater va. Bovmsn, 82 Pac., 546. "Squlsr vs. State, 66 Ind., 3171

"Sykes vs. State of Alabama, 67 Ala., 77.

"United State vs. McKennm, 149 Fed., 252. "Ellison vs. Lmvin, 66 L.R.A., 604.

"The word 'sport' la usually confined to field sports, though of aourse it lllay have other memnlagm, but its usual slgnifleatlon Is that auggemt4d.

"White vs. Western Aasurmnue Compaixy of Toronto, 54 liw 193. "WIrth vm. Calhoun, 89 IIW, 785.

"In the first stated mmme thm court refers to a mportmman, quoting the Cent&y Dictionary am follow&t

"'One who sports, a man who praatioes flold sports, 4mpeoIally hunting or flsh- lng, usually for pleasure and in a legltl- mmte manner.'

"In the last nmm#d came ths question vam whoth- er or not a theatricml performmnae, aon4lmtIng of muslc and dmnoln& and ieate of aontortlon, was sport or sporting. The statute under examlnatlon r4ad, so Sar am It 1s nec488mry to refer to the case, am fol- lows:

"*If w person of the age of fourteen years or upvard shell be found on the first dmy of the veek, c ommmonly aalled Sunday, mport- lng, rioting, quar~ellng, hunting, fishing or shooting h4 or she mhall be fined, etc.' "The statute vent momevhmt further than the quo- tation does in also mmking It an off4nma, to labor at comon labor on Sunday. The murt, after dimposlng of the question and in holding that the theatrlcml performance vem not embwoed within the tdnns of cam- man labor, th4n took up the immue am to whether or not It fell within the vord 'mpo&ing', as used in *5 gonorable M.0. Floweca, Page 5

this atLtute, and quoted vith approval the definni- tion of ‘sport’ as defined fn Webster, among other thlnga saying

” ‘?3gort” ia defined by Webater aa followa: To divert; to make aierry; to represent by any kind of play; to exhibit or bring out in public, as to sport a new equipagej to play; to frollo~ to vanton; to praatioe the dfveraiona of the ffaldl to trifle.” According to the aama lexioo- grapher , "sporting" means "lndulglng in aportr practlolng the dlveralona of the f:eld.” If we uae the definition of “mart,” inateed of: the to? itself, in EZ%%l~h~e “Zf 0EE~l j EeiZ~~- in dlvertlngJ (2) to indulge in axwry- aakingj (3) to lndul 0 In rspreaentlng by any kind of play1 (4 7 to indulge In being out in publlo,, aa to indulge in sporting a new hat or carrlagej (5) to indulge ln play or frolic3 (6) to indulge in vanton- neaaj (7) to indulge in trifling) (8) prro- tiolng the diveralone of the field. It la obvious, we think, that the Lw@alature did not eplploy the tefln In the aenae of the firat, aeomd, fourth, fifth or alxth de- finition above given. They are too buoad. They Include too muah. If adopted in the oonatrmotlon of the atatute, our Sunday lav would rival the moat atrlngent of the blue lava. The third ia a aenae in whloh the teffa is rerely used, and ia illustrated in the Century Diotlonary by e line from Dryden~ “Row epor%ing on the lyre the ‘Lovea of youth.” Aa thua llluataated, It, alao, is too broad, aa it lnaludea awiy oonuaon and lnnooent dlveraiona. The seventh has no ap~:~licatlon to thla case. Thla leaves tha eighth8 !practlclng the dlveraiona of the as the definition the lawaakera pro- field, bably had in mind when the law vaa enaoted. Thin appears still store probably on the OX- a&nation of other defini’tiona. In the (Ien- tury mati.onary*e general meanlng of “sport- *6 Bonorsble W.O. F1overa, Page 6 la aald to be "engaging or concerned

lng” in sport or dIversIon" the specific mean- ing, "interested In or raaticlng field aportarnt (89 11.W., .,87P

"From the foregoing It la seen that the court took up each of the aeveral definitions of sporting as given In Webster and ooncluded that the Code under whIah the proaeoutlon vae brought could not refer to eny of the definitiona there given except the eighth one vhIoh vaa tpracticlngtie diversions of the field,' and It is thla definition which It seems to us the Legislature had in mind In providing that oorpora- tions might be chartered for the purpose of proamtIng bieyycle clubs and other innocent sports.

“The Supreme Court of this State has already held that in drefting the purpose olauae of a charter under this aubdlviaion a definite sport mrt be dea- oribed or set forth.

%a&th VI). Worthara, 157 S.W. 741.

'The court In en opinion rendered In tha Sa&th oaae referred to baseball as a vell reoogaixed and definite lnnoaent sport. It seem to us that this aaae Is persuasive of the lnalatenae which ve make that the vord 'nporta,' as used In this statute, does not refer to @mm, but refers to those classes of amusements which have been reaogniaed from time Iaaaemrial as aporta, not to that olasa auoh aa oarda, dice, pool and billiards, vhioh h")re been from time lmmaorlal ~seifled as games.

This department held In an opInIon written by Hon. A.R. Stout, Assistant Attorney Oensml, dated Januall~ 12, 1934, recorded In Vol. 353, pages 302-307, lnoluslve, that the Hetropolitm Bridge Club of Rouaton, Texas, vas not entitled to receive a ahartsr f'rom the Seoretary of State under aubdi- Vision 9 of Article 1302 of the Revised Civil Skatutea. This Opinion referred to Judge Curetonta holding In the opinion above quoted. We quote from Judge Stout's opinion as follovar

"It has long been a deputmental ou6tom and praatloe to refufte to gent eharter8 similar to the one in question. TM.6 praatloe and euatom Is due soam weight, eapeoially if there ahould be *7 mnmable l6.r). Plovers, ?age 7

any doubt about the matter. Hoorman v. Terroll, 202 8.U. 727, 109 Tex. 1733 Sdwmrds v. Jams, 7 Tex. 372~ Flm Aark. v. Love, 108 8.W. 810 101 Tex. 376~ Walker v. Meyers, 266 S.V. 499 [T.x. sup.). In the juagwmt of the vrlter, there 18 no doubt, for one mason, on aoaouat of the most stringent laws that ve have always had against eatis and gutag. Horeover, if the point in que8- tlan should be doubtful, the opinion of the then bneral, nov~&$'dqtice of our Supems Attorney Court, Is, or xhould be HerPir county v. Balamld, 205 S.W. 445 fZE%L4d).

"Hany years have passed since the&j Many Legislatures frmh from the people hwkooars and IT-* Ourrt&ukshavebeenreaodifiedand thin rulI.ng of ove~elghteenyeara agoha not been de- parted from, yet dmlng all of this tins, subdlvi- slon 9 has not been ahanged one vhft.

"'phi6 is not all. While mury mportsmlghtbe gaaum and many &user might be sporta, bridge or la one plea- card plnyliq or ps8tWe th8t hrs alvaya~ been eoxuldwed and dealgnated as a 1’ haa failed to find where The vrltor it ha8 desl.epyrted othwvlre. It la a card &are that is en *offshoot* oi the old l&gll& game of uhiot and that is all there ir to it. About It, tha lexioographen says r8Bembllng vhhirt.'

“‘A eard Webster*6 Eev r ternational Dlatiomwy. "Bridge ir just as muoh a &me u 18 poker and they are both universally spoken of as ga?6es.

As onevhohas MISS knowledge of bothliole sn4 Bf~.Culbertson no imtanae 0aabe *oalXed& where either oi them ever applied amythins other 'gm't0 thI8 mat mtim. th83lthOVOl’d

'At the time subdIvlaioz~ 9 was r&rat purred, bridge vaa not played muah, if even beeud of.

Poker, however, then as mu, Was Still SxteU& u

3%2 Eonorable X.0. Plovers, Page 8

faot, we had then, as now, stringer& lava mgalnat it, and as lrte as 1911, we flnd Judge Dmvidmon aaytngr

"'Thmt the prmctloe of gambling la demoralltlng, lnlrioal to aoalety. and destructive to the rorala of the youth a6 well as Iwn of uturer years.* Purvla v. State, 137 S.W. 701.

'%e vriter does not believe that any good lav- yer would seriously oontend for long thet A poker club oould be orgmnleed under aubdlvlsion 9, yet in so far as the lava of our Legislature provide, bridge and poker hew the acme legal standing or occupy the amme station, legallY.

"Article 615 of WI- Penml Code ot 1925 provides: "'Whoever ahmll plaY, or bet or wager any mosey or othear thing of value, at a.ny game of oarda at mny place not a private maldemse oacupled bY a frnily, shmll be fined not exoeedlng fifty dol- lrra.'

"In other vordm, whoever ahmll plug . . . mt ray game of cards . . . ahmll be fined not exceeding fift dollati, and the only exception la a private real b co, vhich one amp play umrds tr game vlth oarda in, ao long as he does not oommo~y resort to It for that plppose. If he commonly reaorta to such prlvmte residence for the purpose of gmmlng, then his cornhot Is illegal just as it would be In any place save a private realdenoe, whether he plrced monay or value on the cards or not. ArtSoles 615 and 617 of 1925 Penal Code3 20 Texas Jurisprudence, p. 619, pmrm. 14~ Osllegaa v. State, 95 S.W. 1233 harvim v. State, 137 s.7. $01. The above cited authoritlem serve to illurn& trate the prino'lple, although the books are full of analogous ones. Our Legislature has no doubt alvaya prooeeded upon the theory that: qsm;~qa~lce

"'Cerda are as mumh a ma ang device yet Invented.

State, 5 X0. 451. This mtatemmnt from ihe suprewe Court of Missouri, is in keeping with generml experlenoe and would oertmwY *9 ~tmwable 11.0. Fhvo~, "a&a 9

be admitted by all men., without proof, argument OF diecourse.

"Since it 1s agalwt the law to play cards, VhOther vlth 6~ VithOUt 8hkO8, in any plae0, 8aVe a private rerldenae that 18 not G-rhlJ re8orted to for the purpO80 Of gaming, it 18, therefore, both alsar and elementary th&t the aorporatlon could not be chartered for a purpore that va8 not lavful. 146 C.J., p. 126, para. 119.

"It 18 contemplated by the lav that th8 uor- poratlon, if a aharter vere granted, rhould have a plaoe of bU8inO88. Artiole 1304. Ordlnarlly, thi8 plaoe vould be the headquarter8 of the 'olub.' It would be here that the wmber8 would usually wet and play bridge, yet thf8 vould be unlavful, and in 8trlot legality, the lav could not and vould not countenance it, Should it be argued that bridge vould only be played ln private home8, ooauplud by a family, then there vould~be no nued vhst8oeVer fOF a OOFpOZ'atiOXL A8 ha8 bOOn 8talad, It hae long been a departnental male to not grant dl6l't&8 8Uoh a8,the One Ill Qlle8tlOiL UO kWv Of no exoeption to the male and have bum unable to find any oa8e that vould 8aaation the granting of a ahar$er, 8uah a8 the one applied for, under Tern8 lav.' The pwO8e ohl8e th8 pX’OpO8Ud ~O~O~atiOll Of 8tate8 that t&i wetlngm of the olub vi11 bo held at 703 Rluhmond Road, 8ou8ton, Texa8, or at the XW8ldenoe8 of other member8 of said alub a8 the member8 my frond ties to time determine and that aards will be played at 8aid plaoe8. Said JNl’pO88 do08 daU8e not dleeloae whether or not 703 Riahmnd Road 18 a prfVatS re8i- dews oacupled by a family nor da08 it di80108e vhether or not the other re8idencea are private %W8idenue8 occupied by fuilie8. The playing of eard8 by 8aid propo8ed club member8 may or Day not.be illegal, dependent upon all the fast8 and Oireum8tWe8 Lnrolved, under the rule8 of law laid davn above in thi8 opinion. H6vever, this department vi11 not make arty a88WEPtlOn a8 t0 vhether or not 8aid alub vi11 or will not violate the 1aV vith reibrenO8 t0 playing oard8 or gsaLing. !ht PWardl888 Of wh&h- or or not the game8 played are played In ~1 illegal manner they

” -- 314 &nwrable LO. nover8, Page 10

o@tafly CawOt be ala88ed a8 "fMOOent 8pOrt8" Vithh the aantemplatlon of rubd. 9 of A&ials 1302, v.A.T.c.S., rupra.

In Vim Of the foregOing authOrltie8, it 18 the @nlon of thlr department that "bridge", "vhl8t" and other 8pOFt8" Within are "g8WS" and aF0 Wt "ilUlOOWt card g8WS th8 oontemplatlon of rubdlvl8ion 9 of Article 1302, V.A.T.C.S., 8upra, and that said proposed charter &mild be ref'u8ed by tlm Seoretary of State.

Your8 very truly ATTORHBY ORRHFUL OF l'EXAS QPROVEDNOV 15, 1940

u/7%-M&

ATTORNEY GENERAL OF TEXAS