Opinion of the Justices

Decision Date08 September 1947
Docket Number83.
PartiesOPINION OF THE JUSTICES.
CourtAlabama Supreme Court

House Resolution.

Be it resolved by the House that the Supreme Court of Alabama be requested to render an advisory opinion as to whether or not House Bill No. 854 violates Section 65 of the Constitution.

The following is the title of House Bill No. 854:

A Bill to be entitled An Act To provide for and create the Alabama State Racing Commission for the regulation, licensing, and supervision of horse racing, dog racing, and wagering thereon; to prescribe its composition, appointment, powers and duties; to provide for the regulation and licensing of horse racing, dog racing, race meetings, and the wagering on the results thereof; to provide for and regulate the pari-mutuel or certificate method of wagering and book-making wagering within the enclosure of the licensed race tracks and to provide certain penalties for the violation of this Act and for other purposes relative thereto.

Section 21 of the Bill is as follows:

If any section or subsection of this Act, or any part thereof, is for any reason, held unconstitutional, such decision shall not affect the validity of the remaining portions of such Act. It is hereby declared that this Act and each section subsection, sentence, clause and phrase thereof would have been enacted irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared unconstitutional.

To the House of Representatives

Montgomery Alabama

Sirs:

Your resolution No. 93 directs our attention to the question of whether House Bill 854 now pending in the legislature is in conflict with Section 65 of the Constitution of Alabama which reads as follows:

'The legislature shall have no power to authorize lotteries or gift enterprises for any purposes, and shall pass laws to prohibit the sale in this state of lottery or gift enterprise tickets, or tickets in any scheme in the nature of a lottery; and all acts, or parts of acts heretofore passed by the legislature of this state authorizing a lottery or lotteries, and all acts amendatory therof, or supplemental thereto, are hereby avoided.'

House Bill No. 854 attempts to legalize wagering on horse races and dog races 'under the form of mutuel wagering by patrons known as the Pari-Mutuel Wagering and the book-making form of wagering.' The bill does not define 'Pari-Mutuel Wagering' and 'the book-making form of wagering'. However, 'Pari-Mutuel Wagering' is a matter of common knowledge and is described in the authorities with reference to horse races, as will be shown. The same description applies to dog races. The legislature has classed both methods, that is 'Pari-Mutuel Wagering' and the 'book-making form of wagering' as mutuel wagering. Since under the language of the act the legislature has placed both methods in the same category, the underlying principle is the same in both cases although there may be some differences in detail.

In the operation of a pari-mutuel system, the betting or wagering is limited to the particular race to be run. Prior to the running of the race the booths of the ticket sellers are opened and the public invited to place their bets or wagers upon the winning horses of the next race. Usually persons can bet severally in denominations of $2, $5 and $10 each on 'straight,' 'place,' or 'show,' as used in racing parlance to indicate the position of the horses at the end of the race as coming in either first, second, or third, respectively. There is no limit to the number of such bets any individual might make if he has the money, inclination and time. A device known as a pari-mutuel machine is placed behind each ticket seller and has the appearance of a blackboard, with the name and number of each horse which is to run in the next race. Immediately under each name and number is an open space wherein numbers can be registered. As bets are placed with the ticket seller, the operator of this machine registers the bet, and the indicator under the name and number of each horse shows the number of bets placed upon each horse respectively. As bets are placed, the better is given a ticket indicating the number of the horse upon which he placed his money, such number corresponding to the number beside the horse's name on the face of the machine. It also indicates the amount of the bet and the position the better has indicated the horse will take at the end of the race, that is, whether 'straight,' 'place,' 'show' or combination of such places. Immediately before the race is started, ticket selling is stopped by the officials of the racing association, and the officials of the pari-mutuel system compute the total amount of money placed in the pool. A commission in a certain percent of the pool is deducted. Computation is then made to show the ratio the bets on each horse bear to the whole amount of money in the pool and thus is indicated the odds in favor of or against each horse. The machine records the number of tickets issued on each horse and the total of the tickets so issued on all horses in the race. The odds are indicated and determined on the amount of money placed and the odds or the amount to be paid on any horse cannot be determined until after the last ticket on the race has been purchased. When the race is finished the computers of the pari-mutuel system make announcement of the amount that will be paid on each bet upon the horse coming in first, second or third, and public announcement is made by means of a large blackboard of the number of the horses winning, together with the odds to be paid the holders of tickets who have placed their money on such winners. While there may be other details, the foregoing is sufficient for the purposes of this discussion. Utah State Fair Ass'n v. Green, 68 Utah 251, 249 P. 1016.

Section 65 of the Constitution of 1901 is identical with Art. 4, Section 26 of the Constitution of 1875. In construing § 26 of the Constitution of 1875, this court in Johnson v. State, 83 Ala. 65, 3 So. 790, 791, said:

'This construction is in full harmony with the policy of the constitution and laws of Alabama prohibitory of the vicious system of lottery schemes and the evil practice of gaming, in all their protean shapes, tending, as centuries of human experience now fully attest, to mendicancy and idleness on the one hand, and moral profligacy and debauchery on the other. No state has more steadfastly emphasized its disapprobation of all these gambling devices of money-making by resort to schemes of chance than Alabama. For more than 40 years past--we may say from the organization of the state, with some few years of experimental leniency--the voice of the legislature has been loud and earnest in its condemnation of these immoral practices, now deemed so enervating to the public morals.'

In Buckalew v. State, 62 Ala. 334, 34 Am.Rep. 22, this court took a restricted view as to what constitutes a lottery. However, in Loiseau v. State, 114 Ala. 34, 22 So. 138, 62 Am.St.Rep. 84, this court adopted a broader conception of the term 'lottery' and in doing so expressly modified the holding in Bucklew v. State, supra.

In Grimes v. State, 235 Ala. 192, 178 So. 73, 74, this court in defining a lottery said: 'Without dispute a lottery has three elements: (1) A prize, (2) awarded by chance, (3) for a consideration. * * *'

In Try-Me Bottling Co. et al. v. State, 235 Ala. 207, 178 So. 231, 234, this court expressly called attention to the broad conception set forth in § 65 showing that the prohibition is not only against lotteries but also against any scheme in the nature of a lottery. The very purpose of this broad declaration was to put a ban on any effort at evasion or subterfuge. Whatever may be the view of the courts of other states on the subject of lotteries, there cases show that this court had adopted a broad view of the meaning of the constitutional provision which does not admit of quibbling or narrow construction. We here quote the language of this court in Try-Me Bottling Co. v. State, supra, as follows:

'* * * In this State, therefore, the public policy is emphatically declared against lotteries or any scheme in the nature of a lottery, both by Constitution and by statutes.'

We consider that there can be no question but that the first and third elements, that is a prize and a consideration, are present in the plan for gambling on horse races which House Bill No. 854 attempts to authorize. Whether the second element is present, that is whether the prize is awarded by chance, presents a serious question on which the courts are divided, there being authority to support the view that the form of wagering referred to in House Bill No. 854 is a lottery. 34 Am.Jur. p. 660; State v. Lovell, 39 N.J.L. 458. See also State v. Ak-Sar-Ben Exposition Co., 118 Neb. 851, 226 N.W. 705; Id., 121 Neb. 248, 236 N.W. 736. On the contrary there is substantial authority to support the view that the form of wagering referred to in House Bill No. 854 is not a 'lottery.' People v Monroe, 349 Ill. 270, 182 N.E. 439, 85 A.L.R. 605; Rohan v. Detroit Racing Ass'n, 314 Mich. 326, 22 N.W.2d 433, 116 A.L.R. 1246; Commonwealth v. Kentucky Club et al., 238 Ky. 739, 38 S.W.2d 987; Utah State Fair Ass'n v. Green, supra. The foregoing decisions in Kentucky and Utah should be considered in the light of the proceedings in the constitutional conventions in those states when the constitutional provisions in those states were adopted. These decisions disclose that both the Kentucky and Utah courts were persuaded from a review of the discussions in the constitutional conventions of those states that the matter of horse racing was not to be included in any such constitutional prohibitions. The...

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