Grinstead v. Kirby

• Decision Date: 06 May 1908
• Citation: 110 S.W. 247
• Parties: GRINSTEAD et al. v. KIRBY, Judge.
• Court: Kentucky Court of Appeals

110 S.W. 247

GRINSTEAD et al. v. KIRBY, Judge.

Court of Appeals of Kentucky.

May 6, 1908

"To be officially reported."

Petition by James F. Grinstead and others for a writ of prohibition against Samuel B. Kirby, judge of the Jefferson circuit court, prohibiting respondent from enforcing an order restraining petitioners from interfering with the operation of the meeting of the New Louisville Jockey Club, and from interfering in any way with the sale or purchase of combination or French pools or Paris Mutuels at the race track of said jockey club. Motion denied.

A. E Richards, County Atty., and Helm Bruce, for plaintiffs.

A. P Humphrey and D. W. Baird, for defendant.

HOBSON J.

Under the statutes in force previous to 1893, this court held that the machine known as "French Pool" or "Paris Mutuel" used in betting on horse races was a contrivance used in betting within the meaning of the statutes, and that the persons who conducted the business were indictable. Commonwealth v. Simonds, 79 Ky. 618; Cheek v Commonwealth, 100 Ky. 1, 37 S.W. 152. In 1893 the Legislature in revising the statutes of the state adopted the Kentucky Statutes. Section 1960, Ky. St. 1903, makes it a felony for any one to set up and carry on any machine or contrivance used in betting whereby money or other thing may be won or lost.

Section 1961, Ky. St. 1903, is in these words: "The change of the name of the games, banks, tables, machines or contrivances mentioned or included in the preceding section shall not prevent the conviction of any person violating the provisions thereof; but no prosecution shall be commenced under said section later than five years after the commission of the offense, nor shall its provisions apply to persons who sell combination or French pools on any regular race track during the races thereon. An indictment for a violation of the preceding section may charge the accused in one count with any or all of the offenses mentioned or included therein."

Section 1977 provides that any persons who engage in any hazard or game on which money or property is bet, won, or lost shall be subject to a fine of not less than $20 and not more than $100. The question is presented whether under section 1961 persons may buy combination or French pools on any regular race track during the races thereon. It is insisted that the only effect of section 1961 so far as combination or French pools are concerned is to exempt the persons who sell them from the operation of section 1960, under which the setting up of the machine or contrivance would be a penitentiary offense; and that persons who buy the combination or French pools on any regular race track during the races thereon may be prosecuted under section 1977. It is urged that the language of section 1961 goes no further than this, and does not except from the operation of section 1977 those who buy combination or French pools on any regular race track during the races thereon. But an act of the Legislature like any other instrument must be so construed as to carry into effect the intention of the makers. In Bailey v Commonwealth, 11 Bush, 691, this court, after referring to the rule that the words in a statute are to be taken according to the approved use of language, said: "But there are other rules of construction of equal dignity and importance...