Oneida County Fair Bd. v. Smylie

• Decision Date: 26 September 1963
• Docket Number: No. 9336,9336
• Parties: ONEIDA COUNTY FAIR BOARD, Cassia County Fair Board, Jerome County Fair Board, and Joe Hansen, an individual, Petitioners, v. Robert E. SMYLIE, Governor of the State of Idaho, Respondent.
• Court: Idaho Supreme Court

Page 374

386 P.2d 374

86 Idaho 341

ONEIDA COUNTY FAIR BOARD, Cassia County Fair Board, Jerome County Fair Board, and Joe Hansen, an individual, Petitioners, v. Robert E. SMYLIE, Governor of the State of Idaho, Respondent.

No. 9336.

Supreme Court of Idaho.

Sept. 26, 1963.

Rehearings Denied Nov. 15, 1963.

Elam, Burke, Jeppesen & Evans, Boise, for Oneida, Cassia and Jerome County Fair Boards.

Clemons, Skiles & Green, Boise, for Joe Hansen.

Allan G. Shepard, Atty. Gen., Michael Southcombe, Asst. Atty. Gen., Boise, for respondent.

Z. Reed Millar and Frank E. Chalfant, Sr., Boise, amici curiae.

McFADDEN and SMITH, Justices.

The county fair boards of Oneida, Cassia and Jerome counties, and Joe Hansen, a quarter horse breeder, petitioned for a writ of mandate to compel respondent Governor to appoint members of the Idaho Horse Racing Committee, as required by Idaho Sess.Laws 1963, c. 64, designated therein as the 'Idaho Horse Racing Act,' and hereinafter sometimes referred to as the Act. An alternative writ of mandate was issued.

In response to the alternative writ respondent Governor by his return acknowledged enactment of the law providing for creation of the Committee and appointment of its members by him, and that he refuses to appoint the members of such Committee. As grounds for his refusal respondent Governor urges that the Act creating such Committee and authorizing the pari-mutuel system of wagering on horse races is an attempt to authorize a lottery in violation of Idaho Constitution, Art. 3, § 20, which is:

'The legislature shall not authorize any lottery or gift enterprise under any pretense or for any purpose whatever.'

The Act provides for licensing by the Committee of individual participants in horse racing meets and of persons holding such meets, and exempts fair boards and fair districts from the license requirement. The Act also authorizes a licensee to conduct the pari-mutuel system of wagering at race meets, and declares the use of such system not to be unlawful.

The wagering so permitted is described in the petition as follows:

'* * * The pari mutuel system is a term of art for the mathematical method by which the amounts to be paid to successful patrons are computed. All money paid into the system is paid out to the patrons except for a small percentage retained by the state and fair board pursuant to the act. Odds on a particular horse are determined only by the amount of money paid on such horse by patrons in comparison to other horses in the race.

'In order to successfully determine the outcome of any race, the patron must take into consideration and coordinate the following factors: the number of previous starts of the horse, its wins, its order of finish in current and preceding seasons, the total previous purses won by it; its breeding, age and sex, the distance covered in its most recent races, the time in which the course was completed, the time of the winner, the condition of the track, the weight carried, the stretch called, wind condition, the length behind the leader, the official finish post, the post position, the type of race and the number of starters, the jockey, together with information concerning his record and weight. The track furnishes this information to its patrons. The track in addition groups horses in each race according to their proven ability.'

That the Constitution does not prohibit gambling is not questioned by the parties. They do not contend that wagering on a horse race is violative of the Constitution. Respondent does urge that the enactment of Idaho Sess.Laws 1963, c. 64, designated as the 'Idaho Horse Racing Act', is an attempt to authorize a lottery in violation of Idaho Constitution, Art. 3, § 20.

The sole issue in this proceeding is not whether conducting a pari-mutuel system of wagering under the provisions of the Act constitutes gambling, but whether the operation of such a system of wagering on horse races is a lottery within the meaning of the constitutional prohibition.

A legislative act is presumed to be constitutional and all reasonable doubt as to its constitutionality must be resolved in favor of its validity. Robinson v. Enking, 58 Idaho 24, 69 P.2d 603; Eberle v. Nielson, 78 Idaho 572, 306 P.2d 1083; Noble v. Bragaw, 12 Idaho 265, 85 P. 903; Rich v. Williams, 81 Idaho 311, 341 P.2d 432; Padgett v. Williams, 82 Idaho 114, 350 P.2d 353; Caesar v. Williams, 84 Idaho 254, 371 P.2d 241.

The constitutionality of a statute is to be determined without reference to the economic, equitable, or moral effect of the statute, since such are matters of policy exclusively for the legislature. State v. Dingman, 37 Idaho 253, 219 P. 760; State ex rel. Capital Inv. Co. v. Lukens, 48 Idaho 357, 283 P. 527; State v. Holder, 49 Idaho 514, 290 P. 387; State ex rel. Rich v. Idaho Power Company, 81 Idaho 487, 502, 346 P.2d 596, 603; Berry v. Koehler, 84 Idaho 170, 177, 369 P.2d 1010, 1013; Utah State Fair Ass'n v. Green, 68 Utah 251, 249 P. 1016; State ex rel. Martin v. City of Kansas City, 181 Kan. 870, 317 P.2d 806.

In State v. Village of Garden City, 74 Idaho 513, 265 P.2d 328, in holding that the operation of slot machines constituted a lottery, this Court referred to Idaho Constitution, Art. 3, § 20 and, after quoting. I.C. § 18-4901, stated as follows:

'This definition [of a lottery, I.C. § 18-4901] in substance conforms to that of the common law which has defined a lottery as a species of gaming, wherein prizes are distributed by chance among persons paying a consideration for the chance to win; a game of hazard in which sums are paid for the chance to obtain a larger value in money or articles.

'All lotteries are gambling. To constitute a lottery, as distinguished from other methods or forms of gambling, it is generally held there are three essential elements, namely, chance, consideration and prize. When these three elements are present, the scheme is a lottery. 54 C.J.S. Lotteries § 2(a), p. 845; 34 Am.Jur. 647, Sec. 3.'

Petitioners do not question the conclusion reached in the Garden City case. They agree that the distribution of prizes by slot machines is the result of chance alone, and that no skill, adroitness, or management on the part of the operator can affect the result. They distinguish the operation of the pari-mutuel system of wagering by asserting that the player, or better--being furnished by the operator of the system with information concerning the breeding, training and experience of the horses, and the weight, experience and ability of the jockey--can, by exercise of his own skill and judgment, forecast, with some degree of certainty, the outcome of the race and can place his bet accordingly. Petitioners acknowledge that the better cannot predict the specific amount of reward to be received should he choose the winning horse, this being particularly true in the early stages of the betting, since the odds are dependent upon the number and amounts of bets placed by other patrons upon the same or other horses entered in the race.

In determining the issue before us it is proper to consider the proceedings of the Constitutional Convention to interpret a provision of the Constitution as nearly as possible consonant with the objects and purposes contemplated at the time of its adoption. Williams v. Baldridge, 48 Idaho 618, 284 P. 203; Wright v. Callahan, 61 Idaho 167, 99 P.2d 961; Higer v. Hansen, 67 Idaho 45, 170 P.2d 411; State v. Village of Garden City, supra.

As originally proposed to the Idaho Constitutional Convention, Art. 3, § 20 of Idaho's proposed constitution read:

'The legislature shall not authorize any game of chance, lottery or gift enterprise under any pretense or for any purpose whatever.' (Emphasis supplied.)

The proceedings of the Constitutional Convention, Vol. 2, Idaho Constitutional Convention, Proceedings and Debates, pp. 1248-1249, show that the phrase, 'game of chance', as first contained in the proposed section of the article was, after discussion, eliminated therefrom. Those proceedings prove conclusively that the framers of our Constitution distinguished a 'lottery' from a 'game of chance'; otherwise they would not have deleted the phrase 'game of chance'.

The Legislature enacted this law over respondent Governor's veto by a vote in excess of the required two-thirds majority. Undoubtedly the members of the Legislature were cognizant of the many decisions of the courts of other states regarding the definition of 'lotteries' and were no doubt influenced by the conclusions reached by the great majority of the courts which have ruled upon the question.

Appropriate quotations from decisions of states which, under constitutional provisions similar to Idaho Constitution, Art. 3, § 20, ruling upon the question whether the pari-mutuel system of wagering on horse races constitutes a lottery within the meaning of the particular constitutional prohibition against lotteries, are hereinafter set out.

Arizona.

While Arizona has ruled upon the question, its constitution does not appear to contain such a provision; rather its prohibition is by statute, Ariz.St., R.C.1928, § 4676, which in effect declares as unlawful a lottery or lottery scheme or device, or raffle.

We shall examine the decision of Arizona's Supreme Court, and the constitutional provisions and decisions of various other states, holding that the pari-mutuel system of wagering on horse races does not constitute a lottery.

In Engle v. State, 53 Ariz. 458, 90 P.2d 988, the Arizona Supreme Court, in holding that pari-mutuel betting did not constitute a lottery, said:

'Was it then a lottery or raffle? A lottery may be defined as a scheme for the distribution of prizes or other things of value by lot or chance among persons who have paid or agreed to pay a valuable consideration for the chance to obtain a prize. * * * It is the character of the game and not the skill or want of skill of the individual player which determines whether the game...