State ex rel. Moore v. Bissing

Decision Date07 May 1955
Docket NumberNo. 39706,39706
Citation283 P.2d 418,178 Kan. 111
PartiesSTATE ex rel. Warner MOORE, County Attorney of Sedgwick County, by Keith Sanborn, Deputy County Attorney of Sedgwick County, Kansas, Appellant, v. Al M. BISSING, and The Wichita Greyhound Club, and all Agents, Servants and Employees of Each of Them, Appellees.
CourtKansas Supreme Court

Syllabus by the Court.

1. Under Article 15, Section 3, of our Constitution, lotteries and the sale of lottery tickets are forever prohibited.

2. The essential elements and ingredients of a lottery are (1) consideration, (2) prize, and (3) chance.

3. In G.S.1949, 21-1506, a lottery is defined as including schemes for the distribution of money or property among persons who have given or agreed to give a valuable consideration for the chance, whether called a lottery, raffle, gift enterprise, or by some other name. In other words, an undertaking whereby persons pay a consideration for the chance to receive money or property constitutes a lottery.

4. For reasons more fully set forth in the opinion, pari-mutuel betting operations on dog races constitute a lottery and the sale of lottery tickets.

5. Insofar as the exception contained in G.S.1949, 21-1510, purports to legalize pari-mutuel betting operations on dog races, the legislature was without power to enact it, and such exception is void as being in contravention of our constitutional prohibition of lotteries and the sale of lottery tickets.

6. In an action brought by the state upon the relation of the county attorney to enjoin gambling operations in connection with dog races, and to declare the premises in question a common nuisance, the record is examined and it is held: The pari-mutuel betting operations in connection with the races constituted a lottery and the sale of lottery tickets, both of which are prohibited by our Constitution, and the lower court erred in not so holding.

Keith Sanborn, Deputy County Atty., Wichita, and Robert E. Hoffman, Asst. Atty. Gen., Harold R. Fatzer, Atty. Gen., and Warner Moore, County Atty., Wichita, on the brief, for appellant.

Clyde Wendelken, Wichita, W. A. Kahrs, Wichita, on the brief, for appellees.

Payne H. Ratner, Louise Mattox, Payne H. Ratner, Jr., Russell Cranmer, Dale B. Stinson, Jr., Carroll F. Pope, Keith Eales, Cliff W. Ratner, William L. Fry and A. Wayne Murphy, Wichita, amici curiae in behalf of Kansas Greyhound Breeders Educational Ass'n, Inc.

PRICE, Justice.

The basic question in this case is whether a system of pari-mutuel betting operations on dog races constitutes a lottery, in violation of the Constitution of this state.

For reasons which will hereinafter appear, the court holds that it does.

The action was brought by the state, upon the relation of the county attorney of Sedgwick County, to enjoin further operation of the enterprise in question and to declare the premises a common nuisance, as being in violation of Article 15, Section 3, of our Constitution, which reads:

'Lotteries and the sale of lottery tickets are forever prohibited.'

There is no dispute concerning the facts, and they may be stated as follows:

Defendant, Al M. Bissing, is the owner of a tract of land adjacent to the city of Wichita. In the summer of 1954 he, as owner and operator of the Wichita Greyhound Club, commenced operating dog races on a race track on the property. It was enclosed by a woven wire fence. An admission charge of fifty cents was made to persons attending. 'Post time' was 7:45 p. m., and official 'programs' could be purchased for twenty-five cents. These programs listed the various races for the evening and supplied data and factual information concerning each dog to be entered in a particular race. The programs also contained the following information and instructions to the patrons:

'Windows Close When Dogs Reach the Box

'Buy Your Tickets Early

'Don't Be Shut Out

'Attention

'The Judges, in determining the places of the dogs at the finish of a race, shall consider only the relative position of the respective noses of such dogs.

'There can be no refund after the dogs have entered the starting box for failure to leave, or for any other unforeseen accident, unless failure to start is due to mechanical defect.

'If any mishap occurs during the running of a race due to the fault of mechanical devices, it will be run over or declared off at the discretion of the Presiding Judge.

'Notice

'A dog is a starter for a race when it has left the paddock for the post. A dog, after leaving the paddock for the post, may be excused by the Judges in case of accident or casualty, but only a case where they consider such dog crippled, disabled, or unfit to run.

'Judges' Decision Final

'The Presiding Judge and his associates, are the Official arbiters of every race, and their decisions are final.

'Notice To Public

'If a race is marred by jams, spills or racing circumstances other than accidents to the machinery, while a race is being run, and three or more dogs finish, the Judges shall declare the race finished, but if less than three dogs finish, the Judges shall declare it 'No Race' and monies shall be refunded.

'No race shall be called official unless the lure is in advance of the dogs at all times during the race, and if at any time during the race any dog or dogs catch or pass the lure, the Judges shall declare it 'No Race' and all monies shall be refunded. The lure shall be operated consistently.

'If a dog bolts the course, it shall forfeit all rights in the race, and no matter where it finishes, the Judges shall declare the race the same as if it were not a contender.

'Important Notice

'Positively no tickets will be sold after the dogs have reached the starting boxes. Torn or mutilated tickets will not be accepted unless presented at Window within 30 minutes after the race is run. Claims for lost or destroyed tickets must be made at Window within 30 minutes after race is run.

'Post position corresponds with the number on program.

'Races always are run as scheduled. A dog is a starter for a race when it has left the paddock for the post. Races will be run every night.

'Five Minute Warning

'Five minutes before each post time, a warning will be announced advising that windows will be closed in five minutes.

'Notice

'All wagering at The Wichita Greyhound Club must be done at mutuel windows. Those who do otherwise are subject to arrest and prosecution by law. Touting is strictly prohibited on the premises and the management reserves the right to expel any person whose presence is deemed objectionable.

'The Announcer will give all information of changes and assist our patrons in every posible manners.

'Please Be Careful about holding your mutuel tickets until after the Official result of the race has been posted. No claim for winning tickets thrown away, torn or mutilated, will be recognized unless presented to Window within 30 minutes after the race.

'What Every Fan Should Know About Dog Racing

'In welcoming you to the greyhound races, The Wichita Greyhound Club offers for your approval what it sincerely believes is the fairest and cleanest wagering sport in existence.

'The states of Florida and Massachusetts are the recognized greyhound racing centers in the United States, but the sport has spread in recent years to include Oregon, Montana, North Carolina, Colorado, Arizona, South Dakota and Mexico, and further expansion is expected in the immediate future. Wherever greyhound racing has been introduced its popularity has spread by leaps and bounds.

'Betting Information

'Always call for the greyhound by its post position (large figure to the left of the dog's name).

'Ask for post position number of dogs first, then quantity of tickets desired, as: 'Number two, two tickets.'

'Please have exact change ready.

'To avoid last-minute congestion and the possibility of being shut out, purchase your mutuel tickets early.

'Be sure you are in the right line.

'Straight means to run first, to win the race. Your dog must win for you to win. Place means to run Either first or second. You win if your dog finishes either first or second. Show means to run Either first, second or third. You win if your choice finishes first, second or third.

'You hold a winning tickets when your dog does as well or better than you bet him.

'Mutilated tickets will not be honored.

'Please be sure you get correct ticket before leaving window, as we Positively can not exchange tickets. No exception to this ruling will be allowed.

'All decisions are made by the judges and are final.

'Supervision

'For the protection of the bettor, all greyhounds must be placed in hold-out kennels which are under the supervision of the Racing Secretary at 6 p. m. on the evening of the race in which the greyhounds are to be run. The greyhounds are not returned to their owners until after the race in which they are entered has been finished.

'Quiniela Betting

'The Quiniela is a combination wager in which a player selects the numbers of two dogs in a race and wins if both finish in the first two winning positions.

'One of the dogs selected must win and the other finish second. It makes no difference which of the two is the winner so long as both finish either first or second.

'As an example, if a ticket is purchased for the 2-8 combination and the No. 8 dog wins while the No. 2 dog comes in second, the player wins. If either fails to finish as good as second there will be no return.

'Always call for lowest number of the Quiniela combination first. This facilitates purchases and helps to prevent error.'

The dogs chased a 'mechanical rabbit' which was propelled around the track by an electric motor or similar device. The premises were equipped with 'betting windows' and a cashier's cage where bets were placed. A betting ticket cost $2, and a 'customer' could place bets on any or all dogs and on any combination selected by him to 'win, place or show.' 'Odds' on each dog were announced over a public address system and fluctuated...

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