State v. Thomas

Decision Date10 March 1897
Citation39 S.W. 481,138 Mo. 95
PartiesThe State v. C. B. Thomas, Appellant
CourtMissouri Supreme Court

Appeal from St. Louis Court of Criminal Correction. -- Hon. David Murphy, Judge.


T. J Rowe and Morris, Butler & Fitzgerald for appellant.

(1) The "bookmaking and poolselling act" of March 12, 1895 (Laws of Mo. 1895, page 150), upon which the information herein is bottomed, grants special privileges and immunities in violation of section 15, article 2, and section 53 article 4, of the Constitution of Missouri. (2) Said act fractures the fourteenth amendment to the Constitution of the United States, in denying the defendant the equal protection of the law. (3) Defendant's motion to quash information should have been sustained. The information fails to state facts sufficient to constitute a violation of section 1 of Act of March 12, 1895, entitled, "An act to prohibit book-making and pool-selling at any place other than upon the premises of regular race courses, with emergency clause." Session Acts 1895, p. 150; State v Townsend, 50 Mo.App. 690; State v. Walsh, 136 Mo. 400.

Edward C. Crow, attorney-general, for the State.


Sherwood, J.

This prosecution was instituted under the provisions of section 1 of an act in relation to bookmaking and pool-selling. Laws of 1895, p. 150.

This section was set forth at large and fully discussed in State v. Walsh, heretofore decided, in which case it was ruled that the act in question was unconstitutional. We still adhere to that ruling. But since writing the opinion in the foregoing case, the thought has occurred to us whether the law of 1895 aforesaid, being unconstitutional, though it contains a repealing section, has really operated to repeal the act of 1891 in relation also to bookmaking and pool-selling. Laws of that year, p. 122. That law is the following:

"An act to prohibit book-making and pool-selling:

"Section 1. -- Book-making and pool-selling defined, and penalty prescribed.

"Be it enacted by the General Assembly of the State of Missouri, as follows:

"Section 1. That any person who keeps any room, shed, tenement, tent, booth or building, or any part thereof, or who occupies any place upon any public or private grounds within this 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 to take place beyond the limits of this State; or any person who records or registers bets or wagers or sells 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 to take place beyond the limits of this State, or upon the result of any political nomination, appointment or election which is to be made or held either within or beyond the limits of this State, or being the owner, lessee, or occupant of any room, shed, tenement, tent, booth or building, or part thereof, knowingly permits the same to be used or occupied for any of the purposes hereinabove prohibited, or therein keeps, exhibits, or employs any device or apparatus for the purpose of recording or registering such bets or wagers or selling of pools as are hereinabove prohibited, or becomes the custodian or depository for hire or privilege of any money, property or thing of value which is staked, wagered or pledged contrary to the provisions of this act, shall be guilty of a misdemeanor, and on conviction, shall be punished by imprisonment in the county jail for a period of one year, or by a fine of one thousand dollars, or both: provided, that it shall be unlawful to make and sell said pools, combinations, and book-bets to minors; and any person selling said pools, combinations and book-bets to any minor shall be deemed guilty of a misdemeanor, and on a conviction, shall be punished by imprisonment in the county jail not less than three nor more than twelve months. Approved April 1, 1891."

It will be observed on comparison of the two acts that the chief and substantial difference between them is, that while the act of 1891 applies only to "contests of skill, speed, etc., which are to take place beyond the limits of this State," the act of 1895 applies to such contests whether occurring within or without this State, and that act also contains a certain proviso which confers exemption upon those who ply the same calling as is denounced in the same section against others, provided such avocation be pursued "on the premises or within the limits or inclosure of a regular race course on which such contest of speed is had, and at and prior to the time thereof." Then follows the repealing section which repeals "all acts or parts of acts inconsistent or in conflict with the foregoing section."

1. Now, did the act of 1895 repeal that of 1891? Though there seems to be some conflict, or apparent conflict, in the authorities as to whether a repealing clause in an unconstitutional law repeals the original law, yet it is believed that the great weight of authority, and the better reasoning an nounce the negative of that position.

As already stated, we have decided that the act of 1895 is unconstitutional and void. This being the case, we have to determine the force and effect of that repealing clause or section when considered in reference to the prior section of that act.

On all hands it is agreed that when a law has been adjudged unconstitutional, it is no law at all. Rights which rest, or contracts which depend, upon it, are void; it constitutes no protection to one who has acted under it; and affords no punishment to one who has refused obedience to its mandates before the decision was made. Cooley's Const. Lim. [6 Ed.], 222.

Like the house built upon the sand, when the rains, and the floods, and the winds of judicial criticism descend, and come and blow and beat upon it, it falls, and it is as if it had never been. In short, such act being a nullity, there is nothing upon which the repealing clause can operate, because there is no law in existence which can be inconsistent or in conflict with an act void by reason of its unconstitutionality.

The case then stands in legal contemplation, as if the repealing section were the only one enacted by the legislature, in which event but one opinion could be entertained as to the non-effectiveness of such a repealing section as that which now confronts us in the act of 1895. In other words, when, as here, the evident purpose of the repeal is to displace the old law and substitute the new in its stead, the repealing section or clause, being dependent on that purpose of substitution, necessarily falls when falls the main purpose of the act.

Authorities very numerous abundantly sustain this position. Cooley's Const. Lim. [6 Ed.], 220; Campau v. Detroit, 14 Mich. 276; Sullivan v. Adams, 3 Gray...

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1 cases
  • State ex inf. Major v. Carlisle
    • United States
    • Missouri Supreme Court
    • June 7, 1911
    ... ... Knott, ... 212 Mo. 616), the prior statutes, which said Act of 1907 ... purported to repeal, that is, the Statutes of 1899, art. 3, ... ch. 117, remained in force. Westport v. McGee, 128 ... Mo. 162; Copeland v. St. Joe, 126 Mo. 416; State ... v. Thomas, 138 Mo. 95. (2) The statutes upon which the ... court predicated its ruling in State ex inf. v. Goffee, 192 ... Mo. 670, are so unlike the act of 1905 (Laws 1905, p. 171) ... that it does not follow that, because the court held in said ... Goffee case that grain which did not go into a public ... ...

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