Knight v. State ex rel. Moore, 1 and B

Decision Date21 December 1990
Docket NumberNo. 1 and B,No. 90-CA-0568,1 and B,90-CA-0568
Citation574 So.2d 662
PartiesJoseph Andrew KNIGHT, Spinn-It Corporation, Metro Charities, Inc., Robert M. Malone, Billie F. Pettus, Larry Pettus, One and One Care Center, Inc., Desoto Amvets Post Number 1988, Roy L. Sills, Rosemary Sills, Amvets Postonnie Sanders v. STATE of Mississippi, ex rel., Mike MOORE, Attorney General and Mississippi State Tax Commission.
CourtMississippi Supreme Court

Wayne L. Hengen, Hengen & Hengen, Biloxi, Michael Farrell, Wells Moore Simmons Stubblefield & Neeld, Jackson, Peter L. Doran, Baton Rouge, La., W.E. Gore Jr., Jackson, J. Edward Rainer, Rainer Hyche

& Toney, Brandon, Gerald W. Chatham, Hernando, for appellant.

Mike C. Moore, Atty. Gen., James L. Warren, III, Timothy L. Waycaster, Waycaster & Warren, Jackson, for appellee.

En Banc.

PRATHER, Justice, for the Court:

I. INTRODUCTION

This case involves over twenty defendants whose bingo 1 operations were "shut down" because Hinds County Chancellor W.O. Dillard struck down a statute 2 "exempting" bingo from a constitutional prohibition of lotteries:

No lottery shall ever be allowed, or be advertised by newspapers, or otherwise, or its tickets be sold in this state; and the legislature shall provide by law for the enforcement of this provision; nor shall any lottery heretofore authorized be permitted to be drawn or its tickets sold.

MISS.CONST. art. 4, Sec. 98. About half the bingo operators appealed the judgment and presented numerous issues and sub-issues for disposition--the primary of which is whether the constitution's prohibition of lotteries embraces bingo.

A. Factual Background

A full account of the factual background would be tedious and unnecessary; therefore, only significant events are noted.

On January 10, 1990, the Office of Attorney General (hereinafter "AG") filed a complaint at the Hinds County Chancery Court against nine bingo operators and operations (hereinafter "operators") seeking a declaration: (1) "that the game of bingo fits the definition of lottery"; (2) that bingo, a form of lottery, is prohibited by the Mississippi Constitution; and (3) that Miss. Code Ann. Sec. 97-33-51 (Supp.1990), which exempts (i.e., legalizes) bingo, is therefore unconstitutional. The AG also sought injunctive relief "against the continued operation of ... bingo games of any kind." The chancellor immediately issued (on January 10) a temporary restraining order (hereinafter "TRO")--enjoining "all [operators] and their agents ... from directly or indirectly engaging in or conducting bingo games in the State of Mississippi."

On January 23, 1990, the AG filed a second complaint against eleven more operators; this and the January 10 case were consolidated. The chancellor issued a preliminary injunction against the "new" defendants.

During the next several months, the operators inundated the chancellor with numerous motions, which he denied after holding hearings. The chancellor later granted a motion to join the State Tax Commission.

Finally, on April 17, 1990, the AG filed a motion for summary judgment. On April 27, the chancellor held a hearing--after which he granted the motion and permanently enjoined the playing of bingo (this Court subsequently granted the operators' "Motion for Stay Pending Appeal"). Numerous operators appealed.

B. Issues

Several appellants filed briefs; the remaining appellants "joined in." Collectively, the briefs contained eighteen issues (some duplicative) which are addressed in the following Section.

II. ANALYSIS

A. The Primary Issue: Whether Bingo is a Lottery?

No lottery shall ever be allowed, or be advertised by newspapers, or otherwise or its tickets be sold in this state; and the legislature shall provide by law for the enforcement of this provision; nor shall any lottery heretofore authorized be permitted to be drawn or its tickets sold.

MISS.CONST. art. IV, Sec. 98. If bingo is a lottery or a form of lottery, then this section of the constitution makes bingo illegal, and the legislature may not exempt it via simple majority vote. And if bingo is illegal, then Sec. 97-33-51 must be struck down as unconstitutional.

1. The Chancellor's Opinion

The chancellor rationalized his disposition of this issue via lengthy opinion which he rendered from the bench:

[T]he Court is well aware that there are numerous forms of bingo and it is also called by different names and described differently, but under the authorities of this state, namely, Naron v. Prestage, 469 So.2nd 83 (Miss.1985), which cited language from Williams Furniture Company v. McComb Chamber of Commerce, 112 So. 579 (1927), the Supreme Court of this state defined "lottery" as: "(1) The offering of a prize; (2) The awarding of a prize by chance; (3) The giving of a consideration for the opportunity to win a prize; and all three of these elements must concur in order to constitute a lottery."

In addition to our Supreme Court defining lottery, Webster's Third New International Dictionary defines "lottery" as "A scheme for the distribution of prizes by lot or chance," and the generally recognized legal dictionary, Black's Law Dictionary, Fifth Edition, 1979, describes and defines "lottery" as "A chance for a prize for a price. Essential elements of a lottery are consideration, prize, and chance, and any scheme or device by which a person for a consideration is permitted to receive a prize or nothing as may be determined predominantly by chance." In addition to those definitions, this Court cited cases from the state of Washington; the Court cited a case from the state of Iowa that held that it did not matter the name, whether it was "beano," "keno," "tango," "lotto," "screeno," or whatever, it's still a game of chance and a lottery. That being State v. Mabrey, 60 N.W.2d 889 (1953).

And the principal case which removes any question in legal definitions or precedents is found in our sister state of Tennessee which just this past year, construing its constitution and a charitable form of bingo in the case of Secretary of State v. St. Augustine Church, 766 S.W.2d 499 (Tenn.1989), said: "The Court recognizes that many organizations and citizens deem the game to be a wholesome form of recreation and a useful means of raising money for worthwhile charitable, fraternal, religious and educational purposes. That there are concomitant abuses to which the game is susceptible, however, is ample demonstrated in the factual record which was made before the chancellor in the trial of this case. It is a matter for determination by the voting public as to whether the lottery prohibition contained in Article XI, section 5, should be repealed or amended. This Court is firmly of the opinion, however, that the constitutional provision in its present form completely prohibits the General Assembly from undertaking to legalize or authorize the game of bingo for any commercial purpose, charitable or otherwise."

The Court went on to state that, in their opinion, "no legislative definition of 'bingo' could remove the game as traditionally played from that form of gambling known as a lottery." The Court affirmed the chancellor in that case. And if you take the State of Tennessee and substitute Mississippi, this Court can find not one iota of difference in either the facts or the law where the Supreme Court of Tennessee made its ruling just this past year.

So, insofar as that law is concerned, the Court is of the opinion that there is no question but that bingo as played in this case is a lottery and therefore unconstitutional, and the exemption contained in Section 93-37-51 of the Mississippi Code of 1972 has no effect whatsoever on the question of the constitutionality as noted by the Supreme Court in the state above mentioned.

So, for those reasons, the Court is of the opinion that, in addition to the activity being unconstitutional, the State would be entitled to a summary judgment in this cause and notes that the public policy and the State could suffer irreparable damages in that it could not prohibit or, in fact, as proposed in the Senate bill mentioned, license an unconstitutional activity. And, in addition thereto, the Court would have to, upon proper application, under Section 95-3-25, enjoin the activity as a nuisance since we all agree that it is a gambling activity and would not be authorized by law....

2. The Bingo Operators' Position

The operators posit that the chancellor erred because "any construction of our constitution requires an examination of the historical setting to determine the precise evil that the constitutional framers sought to prevent or remedy." See Metro Charities' Brief at 24. In essence, the operators believe that the framers did not intend to prohibit bingo when they drafted MISS.CONST. art. IV, Sec. 98 (1890).

The operators provide a lesson on the history of lotteries--beginning with the first known lottery authorized by Roman Emperor Augustus Caesar to help raise funds for city repairs, and concluding with lotteries in Mississippi, including the first one (in 1802) which the "Territorial Legislature" authorized to help raise funds for establishment of Jefferson College.

Lotteries in Mississippi were authorized until 1869, when they were constitutionally prohibited. MISS.CONST. art. XII, Sec. 15 (1869) (which preceded MISS.CONST. art. IV, Sec. 98 (1890)). Mississippi's prohibition of lotteries was in sync with the national trend; that is, many states at the time had also "banned" or "cracked down" on lotteries. According to the operators, the trend stemmed from a "scandal" during the 1880s involving the nationally-popular Louisiana lottery. Specifically, the Louisiana scandal resulted in the: (1) dissipation of public trust and confidence in the legitimacy of lotteries, and (2) imposition by state legislatures of statutory or constitutional restrictions of lotteries.

"This history makes clear that the constitutional framers intended to ban a specific form of gambling...

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