State v. Felton

• Court: North Carolina Supreme Court
• Writing for the Court: BOBBITT; In undertaking our task of decision, we are mindful that 'in considering the constitutionality of a statute, every presumption is to be indulged in favor of its validity. ' Stacy
• Citation: State v. Felton, 239 N.C. 575, 80 S.E.2d 625 (N.C. 1954)
• Decision Date: 17 March 1954
• Docket Number: No. 1,1
• Parties: STATE, v. FELTON.

Page 625

80 S.E.2d 625

239 N.C. 575

STATE, v. FELTON.

No. 1

Supreme Court of North Carolina.

March 17, 1954

Harry McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen. and Gerald F. White, Raleigh, member of staff, for the State.

E. R. Woodard, Currituck, for defendant, appellee.

Lucas, Rand & Rose, Wilson, John B. McMullan, Elizabeth City, Wilton F. Walker, Jr., Currituck, and John G. Dawson, Kinston, as amici curiae.

BOBBITT, Justice.

As stated in the brief filed here by counsel appearing as amici curiae: 'Thus it is seen that the case has come to this Court in such form as to test the constitutionality of the aforesaid Chapter 541 of the Session Laws of 1949. That is the single question involved.'

In undertaking our task of decision, we are mindful that 'in considering the constitutionality of a statute, every presumption is to be indulged in favor of its validity. ' Stacy, C. J., in State v. Lueders, 214 N.C. 558, 561, 200 S.E. 22, 24. We are mindful also that 'When it is clear a statute transgresses the authority vested in the legislature by the constitution, it is a duty of the court to declare the act unconstitutional. ' Parker, J., in Wilson v. City of High Point, 238 N.C. 14, 23, 76 S.E.2d 546.

A better perspective as to the applicable principles of law may be obtained by an analysis of the statute here under consideration, to wit, Ch. 541, 1949 Session Laws of North Carolina, entitled, 'An Act Creating the Currituck County Racing Commission for the County of Currituck in the State of North Carolina and Providing for an Election Thereon', hereinafter referred to as the 1949 Currituck Act.

Section 1 creates the Currituck County Racing Commission, consisting of three members. The original members are to be appointed by the Member of the House of Representatives from Currituck County, for one, two and three years, respectively; and at the expiration of the first term of each member his successor is to be appointed for a term of four years by the Member of the House of Representatives from Currituck County and the two members whose terms have not expired, and so consecutively thereafter. Any vacancy shall be filled by the Member of the House of Representatives from Currituck County and the remaining members of the Commission. The salary of each commissioner is to be fixed by a committee of three, consisting of the Chairman of the Commission, the Chairman of the Board of County Commissioners and the Chairman of the Board of Education. A vote of any two of the three shall control. The Commission is directed to organize, elect a chairman, a vice-chairman and a secretary-treasurer. The secretary-treasurer is required to give a $5,000 bond and to 'receive * * * disburse' the money of the Commission 'by authority of the commission' and 'under the provisions of this Act'.

Section 2 vests in the Commission full authority 'to grant to any person, firm, association, or corporation a franchise or privilege, franchises or privileges, for a term of years not exceeding twenty-five years, to construct, lease, maintain, operate, and own, or to exercise either of said privileges, a race course or driving park or appropriate facilities for pacing, running, and trotting races for horses or dogs, or for both horses and dogs, in the manner herein set forth. ' Section 2(a) provides that no franchise or privilege shall be granted unless and until the Commission is satisfied as to the financial ability and responsibility of 'such person, firm, association, or corporation to comply with all the reasonable rules and regulations of the commission and to otherwise operate in accordance with such reasonable rules and regulations as the commission may from time to time prescribe '. Section 2(b) provides that the holder of such franchise or privilege shall pay to the Commission 'for each day or part of day during which races or racing is conducted a sum equivalent to ten per cent (10%) of the gross receipts derived from all sources or operations connected with or incident to the operation of such races or racing conducted during such day or part of day. ' The maximum payment to be required is $5,000 per day, 'in addition to any tax as may be now or hereafter fixed by law on such gross receipts.'

Section 3 provides that the net proceeds of the Commission's operations shall be disbursed by it as follows: 50% to the Currituck County School Fund; 25% to the Currituck County Welfare Fund; and 25% to the Currituck County General Fund.

Section 4 provides that under a franchise or privilege so granted, the holder thereof is fully authorized to acquire property, construct facilities, etc., for 'pacing, running, and trotting races for horses or dogs, or for both horses and dogs, on property owned or leased' by it. Then follows the provision which provoked the controversy, to wit: 'Such person, firm, association, or corporation is hereby expressly granted full authority and power to own or lease maintain, and operate on the premises aforesaid what are generally known as 'Pari Mutuel Machines or Appliances' or 'Pari Mutuel Systems' of the kind employed and in use at recognized racing courses in America: Provided, however, that said Pari Mutuel Machines and Appliances, or Pari Mutuel Systems, shall be operated only within the enclosure of said race course or driving park or appropriate facilities for the aforesaid operations and only on days or parts of days when races or racing is being therein conducted. And it shall be legal for any and all persons twenty-one (21) years of age legally within the enclosure aforesaid to participate in the operation of or become a patron of said Pari Mutuel Machines and Appliances, or Pari Mutuel Systems.'

Section 4(a) provides that so long as the holder of the franchise, etc., complies with 'the reasonable terms and provisions' thereof and 'with such other reasonable rules and regulations as the said commission may promulgate from time to time and as may be set forth in its contracts', the franchise is irrevocable; 'Provided, however, that no franchise granted to any person, firm, association, or corporation by said commission shall be assigned or transferred to any other person, firm, association, or corporation without the written consent of the commission; nor shall the commission grant a franchise or privilege to more than one person, firm, association, or corporation, it being the intention and purpose that the operations shall be under a single management. ' (Emphasis added.)

Section 5 provides that the Commission is authorized to adopt reasonable rules and regulations from time to time which it may 'deem necessary to properly carry out the intentions of this Act '. The violation thereof by the holder of the franchise or by any of its officers, agents or employees is declared to be a misdemeanor.

Section 6 provides that the Board of Commissioners of Currituck County shall order a special election; at which the qualified voters of Currituck County shall vote 'For' or 'Against' creating the Currituck County Racing Commission. The Act shall be in full force and effect if the majority of the qualified voters who vote at such election shall vote in favor of creating the Currituck County Racing Commission; otherwise, the Act shall not be in effect. However, should the voters fail to vote in favor of the creation of the Commission, other elections may be called by the Board of County Commissioners, successively, but not until six (6) months from the preceding election have expired; and if at any subsequent election so called and held, 'a majority of the qualified voters who vote at said election shall vote in favor of establishing the Currituck County Racing Commission, then and in such event this Act shall be in full force and effect.'

Section 7 provides that 'All laws and clauses of laws in conflict with this Act are hereby repealed.'

Section 8 provides that 'This Act shall be in full force and effect from and after its ratification. ' It was ratified March 25, 1949.

The Bill of Information alleges explicitly that the betting on dog races in which the defendant participated was the pari mutuel system conducted by the Carolina-Virginia Racing Association, Inc., under franchise from the Currituck County Racing Commission, pursuant to the provisions of the 1949 Currituck Act. The defendant's position is that the franchise granted to the Carolina-Virginia Racing Association, Inc., pursuant to the statute under consideration, authorizes it to operate a pari mutuel system of betting on dog races at its dog race track; therefore, one who gambles at such dog race track by participating in such legalized pari mutuel system is not guilty of a criminal offense under the general laws of North Carolina relating to gambling.

While gambling per se is not a crime at common law, the General Assembly, in the exercise of the police power, can enact legislation making gambling a criminal offense. A general statement bearing upon this subject is set forth in 24 Am.Jur. 399, Gaming and Prize Contests, § 3, viz.:

'3. Generally.--It is well settled that the police power of the state may be exerted to preserve and protect the public morals. It may regulate or prohibit any practice or business the tendency of which, as shown by experience, is to weaken or corrupt the morals of those who follow it or to encourage idleness instead of habits of industry. Whether gambling, in the various modes in which it is practiced, is demoralizing in its tendencies and, therefore, an evil which the law may rightfully suppress without interfering with any of those inherent rights of citizenship which it is the object of government to protect and secure is no longer an open question. Gambling is injurious to the morals and welfare of the people, and it is not only within the scope of the state's police power to suppress gambling in all its forms, but its duty to do so. In enacting legislation for this purpose, there is no...