People v. Monroe, 21249.

CourtSupreme Court of Illinois
Citation182 N.E. 439,349 Ill. 270
Docket NumberNo. 21249.,21249.
Decision Date26 July 1932


Error to Madison County Court; George W. Crossman, Judge.

James O. Monroe was convicted of violating the Horse Racing Act, and he brings error.


DUNN, J., dissentingR. Guy Kneedler, of Collinsville (Richard G. Kneedler, Jr., of Collinsville, of counsel), for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., Alvin C. Bohm, State's Atty., of Edwardsville, J. J. Neiger, of Springfield, and M. L. Welch, of Edwardsville, for the People.

Kramer, Campbell, Costello & Wiechert, of East St. Louis, for Illinois Turf Ass'n, amicus curiae.


Plaintiff in error, James O. Monroe, was sentenced in the county court of Madison county for violations of ‘An Act to provide for, regulate and license horse racing in the State of Illinois; to legalize and permit the pari-mutuel or certificate method of wagering on the result of horse races at licensed racing meetings in said State; to render inapplicable certain Acts in conflict therewith, and to provide penalties for the violation thereof,’ hereinafter referred to as the Horse Racing Act (Smith-Hurd Rev. St. 1931, c. 8, §§ 37a to 37q). The cause is here on writ of error.

On October 30 and November 28 and 29, 1931, James O. Monroe, plaintiff in error, held race meetings where horses raced for a stake, purse, or reward in an inclosure in Madison county, and on November 30, 1931, he held an agricultural fair where horses raced for a stake, purse, or reward. He made no application for a license to conduct any of the meetings, received no license, paid no license fee, posted no bond, and paid no admission tax. In each case he conducted a pari-mutuel or certificate system of wagering on the result of the races, kept as his commission 25 per cent. of the money wagered, computed the breaks on the basis of 5 cents on the dollar, conducted some of the races after 7 o'clock p. m., conducted some of the races after the last day of October, and in general violated the provisions of the Horse Racing Act.

The only issue in the case is the constitutionality of the Horse Racing Act. The substance of the act is as follows: Sections 1, 2, and 3 provide for the issuance of licenses by the Director of Agriculture for the conduct of horse racing meets. Licenses may be granted only for meetings where horses race for a stake, purse, or reward, for no more than fifty-one days in any one year, no licenses to be issued for racing to be conducted before the first day of May or after the last day of October in any year, and license fees to be paid in advance. Section 4 fixes the license fee, and provides that paragraph 41 of section 1, article 5, of ‘An Act to provide for the incorporation of Cities and Villages,’ approved April 10, 1872, as amended, shall not apply to licensees. Section 5 levies a tax of 20 cents for each paid admission to inclosures of licensees, for posting of a bond insuring payment of this tax, and provides penalties for failure to make reports required by the Director of Agriculture. Section 6 provides for the distribution of the money received by the Director of Agriculture. Sections 7 and 8 provide penalties for violations of the act. Section 10 legalizes the pari-mutuel or certificate method of wagering at tracks of licensees, limits the use of such system to them and prohibits them from using any other system of wagering, permits retention by the licensees of 6 1/2 per cent. of the money wagered, requires breaks to be computed on the basis of one cent on the dollar, and prohibits wagering by minors. Section 11 provides for the inspection of licensees by a representative of the Director of Agriculture, the salary of each inspector to be not more than $50 for each day of racing. Section 12 provides that certain gambling and other statutes are not to apply to licensees and their patrons. Section 13 provides that the act shall not apply to agricultural fairs and limits the use of the pari-mutuel or certificate method of wagering to licensees. Section 14 permits operation of fairs and horse racing on grounds of licensees but prohibits the use of the pari-mutuel or certificate method of wagering in such case. Section 15 provides that the act shall apply only to horse racing.

Plaintiff in error claims that the act is in violation of section 27 of article 4 of the Constitution of Illinois, which provides: ‘The general assembly shall have no power to authorize lotteries or gift enterprises for any purpose, and shall pass laws to prohibit the sale of lottery or gift enterprise tickets in this state.’ It goes without saying that the pari-mutuel system is not a gift enterprise. In Dunn v. People, 40 Ill. 465, it was held that the term ‘lottery’ had no technical meaning in the law distinct from its popular signification, and we there accepted a definition quoted by counsel from one of the lexicographers, that a lottery is ‘a scheme for the distribution of prizes by chance.’ The same definition was accepted in Thomas v. People, 59 Ill. 160. Webster's New International Dictionary defines ‘lottery’ as follows: ‘A scheme for the distribution of prizes by lot or chance, esp. a scheme by which one or more prizes are distributed by chance among persons who have paid or promised a consideration for a chance to win them, usually as determined by the numbers on tickets as drawn from a lottery wheel. Three principal forms of lottery have been used: Lotto, or the Genoese or number lottery; the class, or Dutch, lottery; and the interest lottery. In the Genoese lottery (originating about 1530 from a form of political election at Genoa) the player wins by choosing one (simplum), two (ambo), three (terno), four (quarterno), or five (quinto), out of five numbers which draw prizes out of the total of ninety-five tickets drawn. In class lottery (originating early in the sixteenth century in Holland) the tickets are drawn in certain classes or series, for each of which certain prizes are fixed, increasing in number and value with each class. An interest lottery is one that issues bonds for borrowed money at less than the normal rate of interest, giving chances as the consideration for the low interest.’ The same authority gives many definitions for the word ‘chance,’ the only one of which, aside from an allusion to the falling of dice, is ‘something that befalls as the result of unknown or unconsidered forces; the issue of uncertain conditions; a fortuity.’ The same authority defines pari-mutuel as ‘a form of betting on horses in which those who bet on the winning horse share the total stakes, less a small percentage to the management.’

Every event in life and the fulfillment of every lawful contract entered into between parties is contingent to at least some slight extent upon chance. No one would contend, however, that a contract knowingly and understandingly entered into between two parties is a gaming contract merely because its fulfillment was prevented as the result of the befalling of unknown or unconsidered forces, or by the issue of uncertain conditions, or by the result of fortuity. The pari-mutuel system of betting does not come within the definitions given above. While the amount of money to be divided is indefinite as to dollars and cents, it is definite in that the amount of money to be divided is the total stakes on the winning horse, less a given percentage to the management. The persons among whom the money is to be divided are not uncertain, as they are ‘those who bet on the winning horse.’ The winning horse is not determined by chance, alone, but the condition, speed, and endurance of the horse, aided by the skill and management of the rider or driver, enter into the result. The amount to be paid by a principal to an agent under a contract to be paid 10 per cent. commission on all sales made by him is dependent in some degree on chance and the happening of many uncertain and contingent events, but the defense that such contract was for such reasons a gambling contract could not be maintained. In our opinion the pari-mutuel system does not come within the constitutional inhibition as to lotteries.

It is contended by plaintiff in error that the act here in question is contrary to the public policy of the state of Illinois. Betting on horse races is not malum in se, but is only malum prohibitum. It is not prohibited by the Constitution.The public policy of a state, when not fixed by the Constitution, is not unalterable but varies upon any given question with changing legislation thereon, and any action which by legislation, or, in the absence of legislation thereon, by the decisions of the court, has been held contrary to the public policy of the state, is no longer contrary to such public policy when such action is expressly authorized by subsequent legislative enactment. People v. City of Chicago, 321 Ill. 466, 152 N. E. 141;Lincoln Park Coal Co. v. Wabash Railway Co., 338 Ill. 82, 170 N. E. 8. If this act is a valid enactment, then it is not contrary to the public policy of this state. Landry v. Shinner & Co., 344 Ill. 579, 176 N. E. 895. Whether an act of the Legislature is void because it contravenes the public policy of the state depends upon whether the public policy upon the particular subject has been established by statute or is a part of the common law or has been declared by some provision of the state Constitution. If it exists merely by virtue of some statute or the common law it may be changed by the Legislature at will. State Public Utilities Com. v. Romberg, 275 Ill. 432, 114 N. E. 191.

Plaintiff in error claims that the act is in violation of section 22 of article 4 and of section 2 of article 2 of the state Constitution, in that it grants special privileges and makes arbitrary distinctions and discriminations and unreasonable classifications, and cites in behalf of his contention Miller v. Sincere, 273 Ill. 194, 112 N. E. 664, where the court...

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