Multnomah County Fair Ass'n v. Langley

• Decision Date: 19 July 1932
• Citation: 13 P.2d 354,140 Or. 172
• Parties: MULTNOMAH COUNTY FAIR ASS'N v. LANGLEY, Dist. Atty., et al.
• Court: Oregon Supreme Court

13 P.2d 354

140 Or. 172

MULTNOMAH COUNTY FAIR ASS'N v. LANGLEY, Dist. Atty., et al.

Supreme Court of Oregon

July 19, 1932

Department No. 2.

Appeal from Circuit- Court, Multnomah County; W. A. Ekwall, Louis P Hewitt, and James P. Stapleton, Judges.

Proceeding by Multnomah County Fair Association against Lotus L Langley, as District Attorney for the Fourth Judicial District of the State of Oregon, and another to obtain a declaratory judgment. From the judgment, plaintiff appeals.

Affirmed.

This is a proceeding of the character authorized by sections 2-1401 to 2-1416, Oregon Code 1930, to obtain a declaratory judgment holding that the manner in which the plaintiff conducts horse racing is not unlawful. After the complaint had been filed the defendants moved for judgment on the pleadings. The circuit court, being of the opinion that the complaint disclosed that the plaintiff's methods were in violation of section 14-801, Oregon Code 1930, which proscribes lotteries, sustained the motion. Plaintiff appealed.

E. B Seabrook and W. W. Banks, both of Portland (Seabrook & Seabrook, of Portland, on the brief), for appellant.

Lotus L. Langley, Dist. Atty., and Ben H. Conn, Deputy Dist. Atty., both of Portland (George Mowry, Deputy Dist. Atty., of Portland, on the brief), for respondents.

ROSSMAN J.

The complaint alleges that in the conduct of horse races the plaintiff has adopted the plan which we shall now describe. Upon the entry of a horse in any race its owner is required to assign to the plaintiff all of its earnings by way of purse, prize, or premium. In consideration of the assignment the plaintiff guarantees payment to the owner of a certain sum as a reward. The complaint alleges: "In order to obtain the necessary money to pay the expenses of such race, plaintiff, its lessee or agents, will solicit subscriptions for the purpose of defraying said expenses and of providing purses and premiums to be earned by said horses. All of said subscriptions will be used as follows: (1) In payment of the cost and expense of the race; (2) all of the remainder of said subscription shall constitute purses and premiums to be awarded to the three horses which finish said race in first, second and third positions. In order to induce subscriptions for the purposes aforesaid, plaintiff or its lessee or agents, gives to each subscriber a proportion of the said earnings of any horse the subscriber may select. This is a mere gratuity. The understanding is that when a subscriber makes a subscription his subscription is parted with and no part of the same is returned to him as a matter of right. It is to be used for expenses and purses of the race. In the event that plaintiff, or its lessee or agents, acquire any earnings by virtue of the assignment thereof by the owners or legal possessors of the horses, they may or may not, as they decide, give to the subscribers a proportion thereof. The promise of this gift is an inducement to obtain subscriptions, but the plaintiff has kept and intends in good faith to keep said promise and distribute the excess of subscriptions over expenses and purses among the subscribers. All details of distribution are left to the plaintiff. Subscriptions are received in amounts of $2.00 or $5.00 or $10.00 each, and the distribution of the excess subscriptions are made in proportion to the subscriptions received."

Continuing, the complaint alleges that the subscriptions were received in a building "fitted with booths, at which booths the subscriptions were received and receipts therefor issued, adjacent to the race track."

The complaint alleges that the defendants, who are the district attorney and sheriff of Multnomah county, contend that the above manner of conducting the horse races violates section 14-722 and section 14-801, Oregon Code 1930. Section 14-722, Oregon Code 1930, provides: "If any person shall willfully and wrongfully commit any act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages the public decency and is injurious to public morals, such person, if no punishment is expressly prescribed therefor by this Code, upon conviction thereof, shall be punished by imprisonment in the county jail not less than one month nor more than six months, or by fine not less than $50 nor more than $200."

Section 14-801, Oregon Code 1930, provides: "If any person shall promote or set up any lottery for money or other valuable thing, or shall dispose of any property of value, real or personal, by way or means of lottery, or shall aid or be in any way concerned in setting up, managing or drawing such lottery *** such person, upon conviction thereof shall be punished by imprisonment in the penitentiary not less than six months nor more than one year, or by imprisonment in the county jail not less than three months nor more than one year, or by fine not less than $100 nor more than $1,000."

Article 15, § 4, Constitution of Oregon (Oregon Code 1930, p. 195), provides: "Lotteries, and the sale of lottery tickets, for any purpose whatever, are prohibited, and the legislative assembly shall prevent the same by penal laws."

The parties are agreed that sections 14-722 and 14-801, Oregon Code 1930, are the only provisions of our statutes which are applicable to the conduct described in the complaint. There are no common-law crimes in this state. State v. Nease, 46 Or. 433, 80 P. 897; State v. Gaunt, 13 Or. 115, 9 P. 55; State v. Vowels, 4 Or. 324. However, the common law may be resorted to as a source of information for determining the elements of some specific crime condemned by a statute in general words. Barnett v. Phelps, 97 Or. 242, 191 P. 502, 11 A. L. R. 663; State v. Waymire, 52 Or. 281, 97 P. 46, 47, 21 L. R. A. (N. S.) 56, 132 Am. St. Rep. 699; State v. Ayers, 49 Or. 61, 88 P. 653, 655, 10 L. R. A. (N. S.) 992, 124 Am. St. Rep. 1036; and State v. Nease, supra. By the employment of this principle of statutory construction it has become established that section 14-722 was intended "to cover offenses against the public peace, the public health, and the public morals, not elsewhere made punishable by the Code, and which were known at common law as 'indictable nuisances."' State v. Waymire, supra. See, also, Barnett v. Phelps, supra. The maintenance of a pool room in which persons congregate to bet upon horse races is a gaming house punishable as a nuisance at common law, and, therefore, prohibited by section 14-722. State v. Ayers, supra, and State v. Nease, supra. The problem for solution, therefore, is whether the manner in which the plaintiff intends to conduct horse racing, as described in its complaint, is a lawful activity or constitutes a lottery or a nuisance.

It will be observed from the complaint that the plaintiff solicits contributions of $2, $5, and $10 from interested persons, and that it uses the sum obtained for the following purposes: (1) To offer prizes to owners of horses as inducements for the entry of their horses in the races; (2) to discharge the expenses attendant upon the races; and (3) to create a fund for distribution among those contributors who, at the time when making their contributions, select a horse which wins first, second, or third place in the race.

The district attorney does not argue that the owner's conduct in racing his horse for the premium is an unlawful act, but contends that the conduct of the plaintiff in soliciting contributions and distributing the surplus among those who select the three winning horses violates the legislative act proscribing lotteries or common-law nuisances. The plaintiff argues that its conduct is lawful. It argues: (1) That the outcome of a race is not dependent upon chance; (2) that, when a contributor makes a selection among the horses, his choice is the result of judgment, based upon information, and that, therefore, the subsequent distribution of the surplus among the contributors is not a lottery; (3) that the contribution is not a wager or a bet, and, therefore, does not constitute gaming; (4) that the plaintiff and the contributors are joint adventurers in the conduct of the race; (5) that certainty of a stake in betting is an essential element in gaming, and that, since it cannot be known when many, if not all, of the contributors make their payments that there will be a surplus, this essential element in gaming is absent; (6) that the act of the contributors amounts to nothing more than providing a premium for the races; (7) that in order to constitute a bet there must be two parties, one of whom will eventually become the winner and the other the loser; and (8) that the two parties to this transaction are the plaintiff and the contributors, and that since the plaintiff can neither be a loser nor a winner in the transaction the above essential element is absent.

It is evident that whether a contributor will receive a return after the race has been run is subject to some contingencies the outcome of which he cannot predict by the exercise of judgment. For instance, whether a surplus available for distribution will exist after the race has been run is dependent upon whether sufficient contributions have been obtained to leave an excess after prize money has been provided and the expenses of the race have been discharged. It will also be observed that the surplus is not distributed among all of the contributors, but only among those who selected the horses which won first, second, and third place in the race. We believe that an inference can fairly be drawn from the allegations of the complaint that the contributors who selected the horse which won first place will receive a larger return, if any is paid, than the contributors who selected the horse...