State v. The Anthony Fair Association

• Decision Date: 12 April 1913
• Docket Number: 17,931
• Citation: 131 P. 626,89 Kan. 238
• Parties: THE STATE OF KANSAS, ex rel. JOHN S. DAWSON, as Attorney-general, etc., Plaintiff, v. THE ANTHONY FAIR ASSOCIATION, Defendant
• Court: Kansas Supreme Court

131 P. 626

89 Kan. 238

THE STATE OF KANSAS, ex rel. JOHN S. DAWSON, as Attorney-general, etc., Plaintiff, v. THE ANTHONY FAIR ASSOCIATION, Defendant

No. 17,931

Supreme Court of Kansas

April 12, 1913

Decided January, 1913.

Original proceedings in quo warranto.

Demurrer overruled.

SYLLABUS

SYLLABUS BY THE COURT.

1. GAMBLING -- Bets on Horse Races -- Nuisance. Ordinarily, bookmaking and pool selling by which bets on horse races are recorded and tickets sold showing the purchaser's proportion of the money won on such races constitute gambling, and the place where it is carried on is a nuisance.

2. FAIR ASSOCIATION--No Power to Allow Pool Selling or Bookmaking. A fair association chartered by the state under authority of the statute to form private corporations for the encouragement of agriculture and horticulture has no right or authority to sell the privilege of using its buildings for pool selling and bookmaking, and such association will at the suit of the state be ousted from the exercise of such power.

3. POWER OF STATE--To Suppress Gambling on Fair Grounds. The state which gave such an association its corporate life may require it to refrain from conduct clearly against good morals and which ordinarily constitutes a crime; and such association can not demand that the courts enter upon a critical examination of the effect and validity of statutes passed for the general purpose of suppressing gambling in order to remove the seal of condemnation.

John S. Dawson, attorney-general, for the plaintiff; F. P. Lindsay, of Topeka, of counsel.

T. A. Noftzger, Fred Washbon, both of Anthony, and George Gardner, of Wichita, for the defendant.

OPINION

WEST, J.:

The state, on the relation of the attorney-general, brings this action to oust the Anthony Fair Association from its exercise of the right to acquiesce in and authorize pool selling and bookmaking. The charge is that the defendant was chartered "To give County Fairs annually also race meetings at Anthony, Kansas, buy and own and hold real estate and personalty necessary for such purposes, and do such [each] and every lawful thing necessary for the proper carrying out of said purposes"; that the defendant, in the month of August of each year since its organization has held a race meet and fair in an enclosure consisting of about twenty acres, at which meeting during a period of four days the association, by and through its officers, servants and agents, and by the consent of its directors and managers, has erected near the grand stand, within the enclosure of the fair ground but immediately outside of the race track, a large shed, which is divided into booths, and has at each of the meetings and fairs sold to certain persons and issued the right to register and record bets and wagers and the selling of pools upon the result of the races carried on within the race track, and that there has been at such fairs and race meetings from one to three persons engaged in the selling of pools and in bookmaking in such booths, issuing to the party purchasing it a ticket and registering the same, and after the race paying out the amount evidenced by such ticket, which depended upon the result of such race; that during the various race meetings large amounts of money have been hazarded and lost as the result of races through such system of selling pools. To this complaint a demurrer was filed, and it is argued by the defendant fair association that the legislature has practically licensed pool selling by fair associations, and hence that the amended petition does not state a cause of action.

Chapter 15 of the Laws of 1874, an act relating to agricultural organizations, provided that:

"Any person who shall sell pools, engage in any games of chance or gambling devices of any kind, . . . upon any fair ground in this state during the holding of any fair, and any officer of any fair association who shall authorize or permit such pool selling, . . . shall, upon conviction, be fined not less than $ 25 nor more than $ 100, for each and every offense." (Laws 1874, ch. 15, § 3, Gen. Stat. 1909, § 8149.)

It is contended that this provision was nullified by chapter 155 of the Laws of 1895 (Gen. Stat. 1909, § 2865), an act to prohibit bookmaking and pool selling. This act makes it a misdemeanor punishable by imprisonment in the county jail for one year and by fine of $ 1000 to keep any room, shed, booth or building or to occupy one upon any public or private grounds within the state with any book, instrument or device for the purpose of recording or registering bets or wagers or selling pools upon the result of any trial or contest of skill, speed or power of endurance of man or beast which is to be made or take place within or beyond the limits of this state. A similar penalty is prescribed for any owner, lessee or occupant of any tent, booth or building who owns or permits the same to be used or occupied for the purposes already mentioned. The act contains the following exception:

"Except within the enclosure of a race track and upon races or trials of speed being conducted within said enclosure; provided, that the exception herein shall not apply to any race track or enclosure for more than two weeks in any one year."

It is insisted that this act covers the entire ground of the one first referred to and therefore by implication repeals it, and amounts to the last expression of the legislative will to the effect that pool selling upon races within the enclosure of a race track is legal for two weeks in any one year.

It is interesting to note that in 1895 the Missouri legislature passed an act almost identical with the one here involved, and in State v. Walsh, 136 Mo. 400, 37 S.W. 1112, it was held unconstitutional as being in violation of the provision of the Missouri constitution against special laws granting exclusive right, privileges or immunities. In the opinion it was said:

"If such an act as that being discussed can stand the test of judicial scrutiny, then the above cited provisions of section 53, aforesaid, relative to the prohibition against granting by special law any special or exclusive right, privilege or immunity will have been ordained in vain. Nay, more, if such legislation as that here presented could be sanctioned, then it would be an easy legislative task to provide for the punishment of robbery, arson, murder--indeed, the whole category of crimes--with a proviso that nothing in this act shall be so construed as to prohibit or make it unlawful for any person 'to rob, burn or murder' 'on the premises or within the limits or enclosure of a regular race course,' etc." (p. 406.)

This ruling was affirmed in State v. Thomas, 138 Mo. 95 39 S.W. 481. However, from the opinion in State v. Thompson, 160 Mo. 333, 60 S.W. 1077, it appears that in 1897 the Missouri legislature departed from the plan adopted by Missouri and Kansas in 1895 and passed an act against pool selling and the like without first having obtained a license, and providing that "any person of good reputation" (p. 340) desiring to obtain a license to sell pools should apply in writing under oath to the state auditor, who, "if satisfied with the good character" (p. 340) of such an applicant and of the good repute of the race course or fair ground, might issue a license. This was held to be constitutional, although it was expressly said in the opinion (p. 341) that it was apparently clear that bookmaking and pool selling within the scope of the act were gaming or gambling. It was also noted that it had been held in State v. Clarke, 4 Mo. 17, that St. Louis could license bawdy houses, and that a license taken out in conformity with the ordinance would shield the holder from criminal proceedings by the state. In February, 1902, the same court, in Ullman v. St. Louis Fair Assn., 167 Mo. 273, 66 S.W. 949, 56 L. R. A. 606, decided that one who paid the owner of a race track for the exclusive business of bookmaking and pool selling could not, after enjoying his privilege for a time, abandon it and recover back the money paid in excess of the pro rata amount. In the opinion it was said (p. 283) that it was not to be questioned that the phrases bookmaking and pool selling are but other names for betting and...