in re Opinion of the Justices

• Decision Date: 17 April 1911
• Citation: 208 Mass. 607,94 N.E. 848
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

208 Mass. 607

94 N.E. 848

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

April 17, 1911

OPINION

The following is the question presented:

'Ordered that the opinion of the Justices of the Supreme Judicial Court be required upon the following important question of law, namely:

'Would the provisions of the bill now pending in the General Court, which prohibits gift enterprises, being House Bill No. 1,097, a copy of which is transmitted herewith, be constitutional if enacted?'

To the Honorable House of Representatives of the Commonwealth of Massachusetts:

We, the Justices of the Supreme Judicial Court, having considered the question upon which our opinion is required under the order of April 4, 1911, a copy of which is hereto annexed, are constrained to answer it in the negative. The principles applicable to statutes of this kind were considered and discussed in Commonwealth v. Emerson, 165 Mass. 146 42 N.E. 559, Commonwealth v. Sisson, 178 Mass. 578, 60 N.E. 385, and O'Keeffe v. Somerville, 190 Mass. 110, 76 N.E. 457, 112 Am. St. Rep. 316. In the last of these cases a statute was held unconstitutional in part upon grounds which are equally applicable to the House Bill referred to in the order, and which require us to hold that the provisions of this bill are unconstitutional.

The bill is drawn in broad terms, and it purports to forbid transactions that are not different in principle from contracts of sale which always have been held to be within the constitutional right of persons in every state to possess and acquire property, to transact legitimate business and to buy and sell and get gain. Const. U.S. Amend. art. 14; Declaration of Rights, art. 1. We cannot doubt that the bill is intended only to include cases such as this court held not to be included in St. 1884, c. 277, as amended by St. 1898, c. 576, now R. L. c. 214, § 29. See Commonwealth v. Sisson, 178 Mass. 578, 60 N.E. 385. The reasons for the decision in the case just cited would not apply to a decision as to the meaning of this bill.

There is nothing in the conduct proposed to be prohibited that necessarily appeals to the gambling instinct or involves any element of chance. Such statutes and ordinances have been held unconstitutional by the highest courts in a large number of states. State v. Shugart, 138 Ala. 86, 35 So. 28, 100 Am. St. Rep. 17; City Council of Montgomery v. Kelly, 142 Ala. 552, 38 So. 67, 70 L. R. A. 209, 110 Am. St. Rep. 43; Ex parte McKenna, 126 Cal. 429, 58 P. 916; Ex parte Drexel, Ex parte Holland, 147 Cal. 763, 82 P. 429, 2 L. R. A. (N. S.) 588; Denver v. Frueauff, 39 Colo. 20, 88 P. 389; Hewin v. Atlanta, 121 Ga. 723, 731, 49 S.E. 765, 67 L. R. A. 795; Long v. Maryland, 74 Md. 565, 22 A. 4, 12 L. R. A. 425, 28 Am. St. Rep. 268; State v. Sperry & Hutchinson Co., 110 Minn. 378, 126 N.W. 120; State v. Ramseyer, 73 N.H. 31, 58 A. 958; People v. Gillson, 109 N.Y. 389, 17 N.E. 343, 4 Am. St. Rep. 465; People v. Dycker, 72 A.D. 308, 76 N.Y.S. 111; People v. Zimmerman, 102 A.D. 103, 92 N.Y.S. 497; Winston v. Beeson, 135 N.C. 271, 47 S.E. 457, 65 L. R. A. 167; State v. Dalton, 22 R.I. 77, 46 A. 234, 48 L. R. A. 775, 84 Am. St. Rep. 818; State v. Dodge, 76 Vt. 197, 56 A. 983; Young v. Commonwealth, 101 Va. 853, 45 S.E. 327. There are numerous similar decisions in the federal courts.

The Court of Appeals of the District of Columbia, in its decisions in Lansburgh v. District of Columbia, 11 App. D. C. 512, and in District of Columbia v Gregory, 35 App. D. C. 271, stands almost alone,...