Lee v. City of Miami

• Citation: 163 So. 486,121 Fla. 93
• Parties: LEE, State Comptroller, et al. v. CITY OF MIAMI et al.
• Decision Date: 27 September 1935
• Court: United States State Supreme Court of Florida

163 So. 486

121 Fla. 93

LEE, State Comptroller, et al. v. CITY OF MIAMI et al.

Florida Supreme Court

September 27, 1935

Rehearing Denied Oct. 5, 1935.

En Banc.

Suit by the City of Miami, a municipal corporation, organized and existing under and by virtue of the laws of Florida, and others, against J. M. Lee, as State Comptroller, and others. From the decree, the defendants appeal.

Reversed.

BUFORD J., dissenting in part. Appeal from Circuit Court, Dade County; H. F Atkinson, Judge.

COUNSEL

Cary D Landis, Atty. Gen., G. A. Worley, State Atty., of Miami, J. V. Keen, Asst. Atty. Gen., Philip D. Beall, of Pensacola, and John R. Beacham, of West Palm Beach, for appellants.

J. W. Watson, Jr., and Abe Aronovitz, both of Miami, for appellees.

OPINION

TERRELL Justice.

This appeal is from a decree of the circuit court of Dade county restraining J. M. Lee, as comptroller of the state of Florida, Leonard Thompson, as tax collector of Dade county, and W. F. Blanton, as county judge of Dade county, from enforcing, administering, or attempting to enforce any of the powers or duties vested in them under House Bill 1131, now chapter 17257, Acts of 1935, Laws of Florida.

The purpose of chapter 17257 is briefly stated in the title, which is as follows:

'An Act to License Certain Types of Coin-Operated Devices; to Regulate the Operation Thereof; to Designate the Penalties for the Violation of the Provisions of This Act; to Define Certain Types of Coin-Operated Devices; Providing for the Division and Distribution of the Revenue Derived Therefrom and Other Matters Properly Relating Thereto; and to Provide for Holding Recall Elections in any County to Determine Whether Licenses Shall be Revoked or Continued Therein.'

Section 2 of chapter 17257 is the part assaulted in this litigation, and is as follows:

'Section 2. For the purpose of this Act, coin-operated devices are defined and classified as follows:

'(1) Automatic coin-operating vending and amusement machines with premium features, which may or may not vend for each coin deposited a standard article of merchandise having a recognized retail value, and which at intervals vend checks, tokens, coins, or orders which may or may not be exchanged for additional merchandise. Hereinafter this type will be referred to as automatic vendors.

'(2) Coin-operated skill machines (commonly referred to as Pin-Games, Marble Tables, and similar devices of this type which may have a skill feature) which may or may not pay a reward for skillful operation or upon which operation, premiums may or may not be given for high score or making certain combinations. Such premiums may be awarded either automatically by the machine in the form of checks, tokens, or orders, which designate the value of the premium or premiums or may be indicated by a score card attached to the machine. Hereinafter this type shall be referred to as skill machines.

'(3) Trade Machines. These machines have no automatic vending feature, although at intervals indicate that patron is entitled to receive premiums. Hereinafter this type will be referred to as trade machines. Only such types of machines as are hereinabove described and referred to as automatic vendors, skill machines and/or trade machines are covered by this Act. Nothing herein contained shall be construed to apply to any coin-operated machine or device which returns amusement, entertainment or some service of article of value of a combination of the above, uniformly as to quantity and quality, upon each insertion of a coin into the same, nor to any coin-operated telephone.

'(4) 'Other Machines.' All other coin-operated machines or slot machines not covered by any of the above definitions, classifications, or descriptions, shall be classified as 'other machines' and shall be subject to an occupational license tax as hereinafter provided.

'(5) This act shall not apply to coinoperated telephones nor to U.S. Stamp machines.

'(6) The Comptroller is hereby authorized and directed to make and promulgate such reasonable rules and regulations as may be necessary to secure and determine uniform classifications for the purposes of this Act, of all devices and/or machines within the State of Florida.'

'Both the 'operator' and the 'location operator' of any machine as defined in section 3 of the act are required to secure a license for that purpose and it is made the duty of the Comptroller to prescribe rules for and to administer the said Act.'

The order appealed from was granted on the ground that the coin-operated devices named in section 2 constituted lotteries such as were inhibited by section 23 of article 3 of the Constitution, which provides that: 'Lotteries are hereby prohibited in this State.'

We are therefore faced with the sole question of whether or not coin-operated devices as defined by section 2 of chapter 17257, Acts of 1935, constitute lotteries as defined by section 23 of article 3 of the Constitution.

Webster defines a lottery as a scheme for the distribution of prizes by lot or chances. Worcester defines it as a distribution of prizes and blanks by chance, a game of hazard in which small sums are ventured for the chance of obtaining a larger value either in money or in other articles. Other standard dictionaries are to like effect. The courts have defined a lottery as the payment of a pecuniary consideration, and it is determined by lot or chance, according to some scheme held out to the public, what and how much he who pays the money is to have for it, that is to say, a scheme by which a result is reached by some action or means taken, and in which result man's choice or will has no part, nor can human reason, foresight, sagacity, or design enable him to know or determine such result until the same has been accomplished. 17 R. C. L. 1210, and cases cited.

In Horner v. United States, 147 U.S. 449, 13 S.Ct. 409, 37 L.Ed. 237, the court called a lottery a scheme for raising money by selling chances to share in a distribution of prizes; more specifically, a scheme for the distribution of prizes by chance among persons purchasing tickets, the correspondingly numbered slips, or lots, representing prizes or blanks, being drawn from a wheel on a day previously announced in connection with the scheme of intended prizes. In law the term 'lottery,' said the court, embraces all schemes for the distribution of prizes by chance, such as policy playing, gift exhibitions, prize concerts, raffles at fairs, etc., and includes various forms of gambling.

In many states the Legislature has undertaken to define the term 'lottery.' Here is a typical legislative definition: A scheme for the distribution of property by chance, among persons who have paid or agreed to pay a valuable consideration for the chance, whether called a lottery, raffle, or gift enterprise, or by some other name. People ex rel. Ellison v. Lavin, 179 N.Y. 164, 71 N.E. 753, 66 L. R. A. 601, 1 Ann. Cas. 165.

Lotteries in a legal sense, like many other institutions, have experienced an interesting evolution. In some jurisdictions the term 'lottery' is employed in its generic sense, while in others it has its technical implications. Lotteries are of ancient origin. They were common in the festivals of Roman emperors, were used by the feudal princes of Europe, by the court of Louis XIV, and were appropriated in the Italian republics of the sixteenth century to encourage the sale of merchandise. They early became popular in France, Belgium, Sweden, and Switzerland as a means of raising government funds. They were established in England as early as 1569, and were one of her most popular sources of revenue. They were at one time employed in every state of the Union and in the District of Columbia to raise money for public purposes, the erection of buildings, making public improvements, for educational and sometimes for religious purposes. In 1828 the territorial Legislature of Florida created Union Academy in Jackson county and authorized its trustees to raise $1,000 for its benefit by lottery. Page 279, Acts of 1828. During the Revolution the Continental Congress on one occasion authorized the raising of funds by lottery. Stone v. State of Mississippi, 101 U.S. 814, 25 L.Ed. 1079.

Under the common-law, lotteries and all forms of gaming were pronounced illegal only when they became public nuisances. In 1698 an act of Parliament declared the former to be such. In Great Britain and in every state in the United States they have been suppressed by constitutional provision as the result of popular uprising against them early in the latter half of the preceding century.

The form of lottery against which popular indignation was directed had its peculiar implications. The Legislature would first grant a charter to a lottery company for a period of years in consideration of a stipulated sum in cash, annual payment of further sum, and a percentage of the receipts from the sale of tickets. Under such a charter the company was authorized to sell tickets, or certificates of subscription to issue receipts therefor, and to contract with agents to sell them on commission or otherwise. The tickets or certificates entitled the holders to such articles as might be awarded them, the distribution to be made in public, after advertising, by the casting of lots, or by lot, chance, or otherwise in such manner as directed by the by-laws of the corporation. The holders of tickets in such lotteries could sell them or any interest in them, and the purchasers were entitled to participate in the distribution of any prize under them. Money, lands, and merchandise of all kinds were distributed by such lotteries. Under these charters lottery companies devised every scheme and device to ensnare the...