Justice v. Commonwealth

• Decision Date: 10 December 1885
• Citation: 81 Va. 209
• Parties: JUSTICE v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

81 Va. 209

JUSTICE v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

December 10, 1885

Error to judgment of hustings court of Petersburg, rendered 27th February, 1884, upon an indictment against the plaintiff in error, James E. Justice, for selling a ticket of the lottery of the Dismal Swamp Canal Company.

The defendant admitted the selling, but contended that it was lawful, and that the fourth section of the act passed 14th February, 1816, authorized the selling of the tickets of the lottery of said company. He also offered two pleas in estoppel to the prosecution. These pleas were founded on the facts that others had been indicted in the hustings courts of Richmond and Norfolk respectively, for selling the tickets of said company, and had justified under the authority conferred on said company; that the Commonwealth had contended that that authority had been repealed by sections 11 and 12, of the acts of 1877-78, p. 309; but that each of the said courts had decided that the said lottery privileges was a contract and irrepealable. And the defendant pleaded that these decisions operated as an estoppel to the prosecution.

Opinion states fully the facts and points raised.

Christian & Christian and John S. Wise, for the plaintiff in error.

F S. Blair, Attorney-General, and Wattles &amp Mushback, for the Commonwealth.

OPINION

LEWIS P.

The plaintiff in error was indicted and convicted in the hustings court of the city of Petersburg, for unlawfully selling a certain lottery ticket of the Dismal Swamp Canal Company.

The prosecution was founded on the statute prohibiting " the buying, selling or transferring of tickets or chances in any lottery," and declaring that any person who shall buy, sell or transfer any such chance or ticket shall be deemed guilty of a misdemeanor, and confined in jail not more than one year, and fined not exceeding five hundred dollars. Acts 1877-78, p. 309, sections 11, 12.

It appears that the Dismal Swamp Canal Company was chartered by an act of the general assembly, passed December 1st, 1787, and that by the fourth section of an act passed on the 14th of February, 1816, the company was authorized to raise, by one or more lotteries, the sum of $50,000, for the purpose of constructing or enlarging its canal, with a view to the improvement of the internal navigation between the waters of Virginia and North Carolina. Acts 1815-16, p. 71, et seq.

It seems, however, that nothing was ever done under this act until the 6th of November, 1882, when the company, by a resolution of its stockholders, appointed Burruss, Son & Co., of Norfolk, its agents to organize and conduct a lottery, and to appoint agents for that purpose. Under authority thus conferred, the plaintiff in error was appointed an agent to sell lottery tickets for the company, and, as such agent, sold the ticket mentioned in the indictment.

The statute under which the prosecution was conducted is comprehensive and unqualified in its terms, and by necessary implication repeals the fourth section of the act of February 14, 1816, to which we have referred. It declares that " the buying, selling or transferring of tickets or chances in any lottery shall be, and the same is hereby, prohibited."

The established doctrine undoubtedly is, that repeals by implication are not favored. But when, as is the case here, two acts on the same subject are irreconcilable, the latter act prevails, and the first is repealed to the extent of the repugnancy. United States v. Tynen, 11 Wall. 88; Fox's Adm'r v. Commonwealth, 16 Gratt. 1; Haynes v. Commonwealth, 31 Id. 96; Hogan v. Guigon, 29 Id. 705.

This being so, the first question to be considered is, whether the repeal of the fourth section of the act of 1816 impairs the obligation of a contract between the State on the one hand and the company on the other. The plaintiff in error contends that it does. He contends that the privilege to conduct a lottery, granted by the act of 1816, is, in its nature, a contract, not revocable at the will of the legislature, and that, consequently, the repealing statute is repugnant to the tenth section of the first article of the constitution of the United States and void.

The question thus raised has been the subject of adjudication in numerous cases, both in the State and Federal courts, and with substantial unanimity the decisions have been adverse to the view for which the plaintiff in error contends. It is difficult to see how it can be otherwise decided; for clearly the privilege to conduct a lottery is not a subject of contract, but falls within the police power of the State, and, therefore, not within the scope of federal authority, and is subject to the control of the legislature. The precise limits of that power it may not be easy to define; but, undoubtedly, it extends to the suppression of nuisances, the preservation of the health, good order and morals of the public, and cannot be irrevocably granted away for any purpose, however meritorious, or for any consideration, however valuable. License Cases, 5 How. 504; United States v. Dewitt, 9 Wall. 41; Bartemeyer v. Iowa, 18 Id. 129; Beer Co. v. Massachusetts, 97 U.S. 25; Butcher's Union Co. v. Crescent City Co. 111 2d, 746; Cooley's Const. Lim. 572, 594.

It is on this ground that statutes, repealing prior statutes granting the privilege to sell intoxicating liquors, have been held to be valid. A case in point is Metropolitan Board of Excise v. Barrie, 34 N.Y. 657. " These licenses to sell liquors," said the court in that case, " are not contracts between the State and the person licensed, giving the latter vested rights, protected on general principles, and by the constitution of the United States against subsequent legislation; nor are they property in any legal or constitutional sense. * * * If the act had declared that licenses under it should be irrevocable, the legislatures of subsequent years would not have been bound by the declaration. The necessary powers of the legislature over all subjects of internal police, being a part of the general grant of legislative power given by the constitution, cannot be sold, given away, or relinquished. Irrevocable grants of property and franchises may be made, if they do not impair the supreme authority to make laws for the right government of the State; but no one legislature can curtail the power of its successors to make such laws as they may deem proper in matters of police."

The principle thus emphatically announced applies with equal, if not greater, force to a case like the present. From an early day lotteries have been regarded as pernicious in their effects and demoralizing to the community, and stringent statutes have been passed, at various times, prohibiting them. In 1825 an act was passed " to prevent the sale of foreign lottery tickets within this Commonwealth," and prescribing a penalty for the sale of tickets in any lottery not authorized by the laws of this State. Acts 1825, page 21. This was followed by an act passed February 25th, 1834, entitled " An act to suppress lotteries in this Commonwealth," but providing that the act should not be construed to interfere with contracts then made for the drawing of any lottery which were not to extend beyond January 1st, 1837; nor with contracts which might thereafter be made under any law then in force authorizing the same, but not to extend beyond the first day of January, 1840.

By the constitution of 1851 it was provided, that " no lottery shall hereafter be authorized by law, and the buying, selling, or transferring of tickets of chance in any lottery not now authorized by a law of this State, shall be prohibited." Art. IV., sec. 33. And by an act passed May 22nd, 1852, which is substantially the act now in force, the sale of lottery tickets was absolutely prohibited. And so it is ordained in the present constitution that " no lottery shall hereafter be authorized by law, and the buying, selling, or transferring of tickets or chances in any lottery shall be prohibited." Art. V., sec. 18.

Similar provisions are to be found in the constitutions and laws of other States, and these provisions are in harmony with the prevailing sentiment of the country on this subject. In Phalen v. Virginia, 8 How. 163, a case which went from the general court of this State to the Supreme Court of the United States, it was declared by the latter court that " 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 infects 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."

The precise question we are now considering came before the supreme court in Stone v. Mississippi, 101 U.S. 814. In that case by an act of the legislature of Mississippi, a company was chartered with authority to conduct a lottery, on condition that the company should pay to the treasurer of the State, before commencing business, the sum of $5,000, and execute a bond with...