Greater Loretta Imp. Ass'n v. State ex rel. Boone, 37933

CourtUnited States State Supreme Court of Florida
Citation234 So.2d 665
Docket NumberNo. 37933,37933
PartiesGREATER LORETTA IMPROVEMENT ASSOCIATION, a non-profit corporation, Appellant, v. STATE ex rel. Arthur T. BOONE, Appellee.
Decision Date22 April 1970

George B. Stallings, Jr., of Stallings & Marr, Jacksonville, for appellant.

William H. Maness, Jacksonville, for appellee.

ADKINS, Justice.

This is a direct appeal from a summary final judgment declaring Fla.Stat., § 849.093, F.S.A. (Bingo Statute) to be unconstitutional and void and enjoining appellant from conducting bingo games.

This case involves the meaning of the word 'lottery' as used in Sec. 23, art. 3, Fla.Const. (1885), F.S.A. so as to determine whether the Bingo statute is compatible or in conflict with the Constitution.

The word 'lottery' is a generic term and is not defined in the Constitution nor in any of the statutes of this State. There are conflicting lines of decisions defining the word 'lottery.' See 9 Fla. Law Review 93 (1956) where these decisions are discussed. The article suggests 'a legislative enactment defining an unlawful lottery' and expressly eliminating the requirement that the lottery must be of widespread effect to violate the Constitution.

State-authorized lotteries were very common in the first decades of this nation's history. Most states used them to raise money, including Florida; the territorial Legislature in 1828 created Union Academy in Jacksonville, and authorized its trustees to raise $1,000 for it by lottery. Page 279, Acts of 1828. The use and control of lotteries had been established long before. New York, while still a British colony, passed what became a typical law, outlawing all lotteries except those 'authorized by the Legislature.' Ch. XVII, Laws of the Colony of New York, 1774. When New York prohibited lotteries in its 1821 Constitution, it said, 'No lotteries shall hereafter be authorized * * *.' Sec. 11, art. VII, Const. (1821). This command clearly speaks to the Legislature. An 'authorized lottery' is one 'expressly authorized by law.' 38 Corpus Juris 323 (1925).

In the years before Florida adopted its lottery prohibition, governmental interest in lotteries was financial. 'Lotteries were formerly often resorted to as a means of raising money by states * * * and are still authorized in many foreign countries and in a few of our states * * *.' 2 Bouvier's Dictionary 127 (1885). Lottery revenue measures were passed for many purposes. For example, in Maryland purposes included Washington College (Ch. 193, Laws of Maryland (1823)), a statute of George Washington (Ch. 125, (1824)), turnpike roads (Ch. 140, (1945); Ch. 200, (1845)), and river channel clearing (Ch. 80, (1853)). In its (1851) Constitution, Maryland banned lotteries, saying no more grants 'shall ever hereafter be authorized by the Legislature.' Art. III, Sec. 37.

By 1867, twenty-one states had banned lotteries, and almost universally the language was addressed to the Legislatures. By 1885, twenty-nine states had banned lotteries, with all Constitutions but one speaking to the Legislature; one (Louisiana) reversed itself to permit the Legislature to authorize lotteries. Prohibition in Legislative Article: Florida Art. III, Sec. 23 (1885). Tennessee Art. XI, Sec. 5 (1834). Michigan Art. IV, Sec. 27 (1850). Arkansas Art. V, Sec. 41 (1868). Rhode Island Art. IV, Sec. 12 (1842). New Jersey Sec. VII, Art. 2 (1844). Iowa Art. III, Sec. 28 (1857). Wisconsin Art. IV, Sec. 24 (1848). California Art. IV, Sec. 26 (1879). Maryland Art. III, Sec. 35 (1864). Minnesota Art. IV, Sec. 31 (1857). Nevada Art. IV, Sec. 24 (1864). Missouri Art. IV, Sec. 28 (1865). Nebraska Art. III, Sec. 21 (1875). Virginia Art. V, Sec. 18 (1870). Illinois Art. IV, Sec. 27 (1870). Alabama Art. IV, Sec. 26 (1875). Authorization of Lottery Prohibited: New York, Art. I, Sec. 10 (1846). Colorado Art. XVIII, Sec. 2 (1876). Mississippi Art. XII, Sec. 15 (1868). Louisiana Title VI, Art. 113 (1852) amended to permit Legislature to authorize lotteries in 1879. Texas Art. XII, Sec. 36 (1868). Indiana Art. XV, Sec. 8 (1851). West Virginia Art. XI, Sec. 1 (1861--63). Georgia Art. I, Sec. 23 (1868). Lotteries Prohibited 'for any purpose': Ohio Art. XV, Sec. 6 (1851). Oregon Art. XV, Sec. 4 (1857). South Carolina Art. XIV, Sec. 2 (1868). Unrestricted Language: Kansas Art. 15, Sec. 3 (1859) (but see restrictions in Art. XVI, Sec. 6, Constitution of 1858; Art. XV, Sec. 2, Constitution of 1855).

It was stated that in 'many of the States, the authorizing of lotteries by the Legislature is inhibited, and it is also required that the sale of lottery tickets shall not be allowed.' Florida is footnoted as one of the states included. XIII American and English Encyclopedia of Law 1173 (1890).

This Court in Lee v. City of Miami, 121 Fla. 93, 163 So. 486 (1935), studied the meaning of the lottery prohibition, and concluded it referred to authorized lotteries, not private gambling. Quoting from Phalen v. Virginia, 8 How. (U.S.) 163, 168, 12 L.Ed. 1030, we said:

"Experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with the wide-spread pestilence of lotteries. The former are confined to a few persons and places, but the latter infests the whole community: it enters every dwelling; it reaches every class; it preys upon the hard earnings of the poor; it plunders the ignorant and simple.'

'* * *

'(W)e must conclude that the people of this state had in mind such a lottery as was referred to in Phalen v. Virginia * * *.'

Although all of the standards set forth in Lee v. City of Miami, Supra, were not followed in some of the subsequent decisions, this Court has never receded from or overruled the Lee case. It is still good law, and was sufficient authority to give the Legislature confidence in enacting the Bingo law.

While some of the subsequent decisions were not entirely consistent with Lee v. City of Miami, Supra, and the varying opinions were never reconciled with each other, none were ever overruled. Under these circumstances the Legislature may choose to rely more substantially on one than the other. For this Court to step in now and to recede from the very decision the Legislature relied upon could create instability in the law.

We cannot declare the Bingo law unconstitutional unless we overrule Lee v. City of Miami, Supra, and this would do violence to the time-honored doctrine of stare decisis.

In 1832, only four years after a lottery had been authorized for Union Academy, the Florida Legislature banned all gaming. Sec. 1, Acts of the Legislative Council (1839); modified Ch. 75, Laws of Florida (1846); Ch. 542, Acts of Florida (1868).

In 1868, the anti-lottery provision was inserted in the new Constitution. Immediately after, the Legislature enacted new laws outlawing lotteries and related activities. Ch. X of Ch. 1637, Acts of Florida (1868).

Ten years later, the Legislature imposed a license tax on certain gambling games, including 'keno.' Ch. 3099, Sec. 11, Laws of Florida (1879). The Act of 1868 forbidding lotteries was not disturbed.

' Keno' is 'a game which stops and a player wins when he has five numbers in a row on a card purchased by him corresponding with numbers on balls, drawn from a globe, or other receptacle. It is said to resemble a lottery, and in some respects a raffle, but not to resemble faro or roulette.' 38 C.J.S. Gaming § 1, pp. 40, 41. Keno resembles Bingo in that both are likened to Tango. 38 C.J.S. p. 43.

It is clear that the Legislature, in 1879, considered that the bingo-like game of Keno was not forbidden under the Florida anti-lottery provision of the Constitution.

In 1881, this Court faced the question whether the Legislature had power to impose a license tax on this game resembling bingo. Overby v. State, 18 Fla. 178 (1881). The case arose when a Jacksonville licensee was arrested for violating the anti-gambling law.

The Court held that keno is a gambling game, but went on to say (at page 183) that the Legislature by authorizing licenses to operate keno games 'legalized this game of 'keno' and made it, by the license tax imposed, a source of revenue to the State * * *.' No constitutional arguments were presented. Overby's conviction was set aside, as were the convictions of three other licensees. Hazen v. State, 18 Fla. 184 (1881).

The correctness of this decision was verified by the Legislature in the same year, when it expressly repealed all laws in conflict with its licensing statute for gambling. Ch. 3277, Acts of Florida, 1881.

In 1885, four years after Overby, supra, the exact language of the anti-lottery provision of the 1868 Constitution was written into a new Constitution (Sec. 23, Art. III, Const. (1885)). By establishing rules of construction, the Overby decision retained its authority under the new Constitution.

Therefore, since the Florida Legislature was empowered in 1879 to legalize and license the bingo-like game of keno, it was empowered in 1967 to legalize bingo. Precedent commands this conclusion.

Fourteen years after Overby, the Legislature enacted a new statute governing lotteries And games of chance. Ch. 4373, Laws of Florida, 1895. Gambling in its various forms, and lotteries, are illegal under present law. Ch. 849, F.S.A. Bingo or Guest games do not violate this statute, if played within the restrictions imposed by the Legislature. Ch. 67--178, § 1, Laws of Florida, 1967 (§ 849.093, F.S.A.).

Subsequent decisions of this Court have been compatible with Overby. In Lee v. City of Miami, Supra, this Court upheld a statute to license some types of coin-operated machines and concluded the constitutional anti-lottery provision related to state-authorized lotteries. In Stoutamire v. Pratt, 148 Fla. 690, 5 So.2d 248 (1942), this Court upheld a statute permitting coin-operated amusement machines if licensed. Neither case conflicted with State v. Vasquez, 49 Fla. 126, 38 So. 830 (1905),...

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