Commonwealth v. Whipps

• Decision Date: 18 May 1882
• Citation: 80 Ky. 269
• Parties: Commonwealth v. Whipps.
• Court: Kentucky Court of Appeals

80 Ky. 269

Commonwealth v. Whipps.

Court of Appeals of Kentucky.

May 18, 1882.

APPEAL FROM JEFFERSON CIRCUIT COURT.

P. W. HARDIN, ATTORNEY GENERAL, FOR APPELLANT.

I. & J. CALDWELL & WINSTON AND B. F. CAMP FOR APPELLEE.

JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.

The appellee, W. C. D. Whipps, was indicted by a grand jury, empaneled in the Jefferson circuit court, of the offense of promoting a lottery, by permitting a building occupied and owned by him to be used for the sale of lottery tickets, for the disposal of money and property by way of lottery, and by advertising a lottery known as the Willard Hotel Lottery, by which it was proposed to dispose of certain property (described) by lottery, &c. No objection was made to the indictment, and the defendant, by his plea, traversed the charge made against him, and by an agreement between the attorney for the state and the accused, the law and facts were submitted to the court for judgment. On the hearing, the appellee relied on an act of the legislature, approved the 27th of April, in the year 1880, as vesting him with authority to sell certain property, of which he was the owner, by lottery.

Section first of that act provides: "That it may be lawful for W. C. D. Whipps, of Louisville, Jefferson county, Kentucky, to dispose of the Willard Hotel property, situated on Jefferson street, in the city of Louisville, Kentucky, with two houses and lots on Green street in the rear of the Willard Hotel, &c., and for that purpose may issue and sell by his agents as many certificates of specified undivided interests therein, at prices which will, in the aggregate, amount to the fair equitable value of the property and the costs of disposing of the same in the manner hereby authorized.

"Sec. 2. That Robert Mallory, L. M. Flournoy, H. Clay, H. P. Whittaker, and G. A. Winston be, and they are hereby, appointed commissioners, any three of whom may act, whose duty it shall be to determine by lot, as may be mentioned in said certificates, to what shareholder or shareholders any portion or portions of said property shall belong, and to whom the title thereunto shall be made, and to do and perform all such acts as, in their opinion, may be necessary to carry this act into full effect, and shall invest the funds arising from said certificates in the payment of the just creditors of the said Whipps.

"Sec. 3. This act is intended to apply to the property described herein, and to no other, and when said property is sold, said grant shall cease and be of no effect: Provided, That there shall, in no event, be but one distribution or drawing under this act," &c.

By reason of this act, the appellee claims the right to dispose of his property by way of lottery, and to appropriate the proceeds to the payment of his creditors.

The court below adjudged in his favor by dismissing the indictment, and the Commonwealth is in this court asking a reversal. The attorney for the state maintains that the act in question is in violation of section one of the bill of rights. The section reads: "That all freemen when they form a social compact are equal, and that no man or set of men are entitled to exclusive separate public emoluments or privileges from the community, but in consideration of public service."

The proper construction or true meaning of this section of the bill of rights is the issue presented, and we are aware of no case decided by this court where the question has been directly considered, if at all, and certainly no case analogous to the one under consideration.

Without discussing the grammatical construction of the language used in the section, it is plain, we think, that this constitutional inhibition was intended to prevent the exercise of some public function, or an exclusive privilege affecting the interests and rights of the public generally, when not in consideration of public service, and if made to apply to the exercise of mere private rights or special privileges, it nullifies almost innumerable legislative enactments that are to be found in our private statutes, sanctioned, in many instances, by every department of the state government. It is our boast, as is urged by counsel for the state, "that under our government none are entitled to exclusive rights, but that all are governed by equal laws, subject to like burdens, and entitled to equal privileges, having one rule for rich and poor, for favorite at court and countryman at plow:" but this doctrine of equality or maxim of constitutional law does not mean that every man must be permitted to exercise the same special or private privilege. Special privileges may be granted to one or more citizens when the rights of others are not affected by it. We have general laws enacted for the protection of life, person, and property, with the right to acquire and use our property and its accumulations as we see proper, subject to these general laws, and when not interfering with the rights of others.

The citizen has the right to demand that he shall be governed and protected by these general laws, and when excluded from such protection it is in plain violation of his constitutional rights. An absolute equality of private rights in the exercise of special privileges, if even possible, is not practicable under our form of government in the light this case has been presented by counsel for the state. Special privileges must be granted as a matter of necessity, originating not only by reason of our form of government, but from the general laws enacted for the protection of person and property. General laws cannot always be applied to individual necessities, and particularly with reference to the right of property, and when a special privilege is granted with reference to one's own property, and without injury to others, we perceive no objection to it. If the legislature should be denied the right, by an amendment to the constitution, to legislate with reference to local or private interests, the sovereign (the people) would confer this right to local tribunals vested with similar powers. What interest has A in the sale and transfer of the property of B, if it in no manner affects his private rights? and while under the general law the right of each to sell and convey their property in the same manner cannot be denied, if B, by special enactment, is empowered to sell and transfer his land in a different way, we cannot well perceive how this affects the constitutional rights of A. It is insisted, notwithstanding the existence of the general law, that the special privilege is unconstitutional, because every citizen is not authorized to sell in the same mode; that it is a legislative invasion of the rights of equality, and for that reason within the constitutional inhibitions. Conceding, for the purposes of this case, that this section of the constitution applies to the exercise of a mere private right or special privilege, where is to be found any word of exclusion in the grant of the right to sell the home of the appellee by lottery, or the land of B by parol, and what is to prevent the legislature from granting a like privilege to any citizen upon making the application? But the word privilege, in the meaning of the constitution, is a public privilege, and not the exercise or enjoyment of a special privilege.

When the citizen undertakes to discharge a duty to the public that the state is under an obligation to discharge, and in consideration for the undertaking an exclusive privilege is granted, the grant is constitutional, because in consideration of public service. The exclusive right to keep a ferry, to construct and operate highways, &c. — all such exclusive rights are based upon a consideration rendered the public in the discharge of a duty the state was required to perform. It becomes a binding contract, and cannot be violated by either the state or the citizen, nor can it be repealed unless that right is reserved in the grant, or by reason of some general law, and with the repeal it has all the essential elements of a contract, and the rights of the parties under it cannot be disturbed.

A mere privilege granted by the legislature for the exercise of a private right is always subject to legislative repeal, and while rights of property acquired by reason of such special privileges cannot be divested, the right to repeal exists until such rights are acquired under it, and even after, except in so far as it may be necessary to protect or preserve the property rights already acquired. This constitutes the principal distinction between grants in consideration of public service and mere privileges for the advancement of private interests. The question as to the right of a state to contract with the citizen is not involved in this case. The state may contract with its citizens with reference to matters of public necessity, and such contracts are as binding as contracts between individuals, the only difference being that, when the state violates its contract, the citizen is without any coercive remedy, unless permission is given by the state to the party injured to seek redress by action for the wrong complained of. The cases cited by counsel bear but little analogy to the question before us.

In the case of Holden against James, 11 Mass., an attempt was made to suspend the statute of limitation in a particular case, so as to take it out of the operation of the general law. The case of Lewis v. Webb, 3 Greenleaf, was where an appeal was authorized by the legislature in a particular case, regardless of the general law; and in Durkee against Zanesville, 28th Wisconsin, the city of Zanesville was exempted from the payment of costs in a proceeding against it by Durkee. This legislation was plainly in violation of the individual rights of others, and a disregard of the great principle of constitutional equality so earnestly contended for by counsel, although the decision in each case was based mainly on the ground that the...