State v. Thompson

• Decision Date: 19 February 1901
• Parties: STATE v. THOMPSON.
• Court: Missouri Supreme Court

60 S.W. 1077

160 Mo. 333

STATE v. THOMPSON.

Supreme Court of Missouri.

February 19, 1901.

CRIMINAL LAW — CONSTITUTIONAL LAW — GAMING — POLICE POWER.

1. Act April 7, 1897, § 2, provides that applications for pool-selling licenses must be made to the state auditor, and that, if satisfied with the good character of the applicant, and the good repute of the race course or fair grounds on which he may desire to conduct the business, the auditor may issue a license. Held, that this provision is not repugnant to Const. art. 4, § 1, providing that the legislative power shall be vested in the general assembly, as delegating legislative powers to the auditor, since it gives him no authority to make a law, but only to determine a fact or thing on which the action of the law depends.

2. Act April 7, 1897, § 2, authorizes the issuance of pool-selling licenses at race courses or fair grounds of good repute; section 4 prohibits the business being conducted at any other place than mentioned in the license; and section 1 prohibits such business unless a license is first obtained. Held, that the act is not repugnant to Const. U. S. Amend. 14, § 1, providing that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens, or to Const. Mo. art. 4, § 53, providing that the general assembly shall not pass any local or special laws, since such business tends to weaken and corrupt the morals, and the state, in the exercise of its police power, has the right to prohibit or confine it within prescribed limits, and there license it, and the act embraces all persons alike who choose to place themselves within its reach.

In banc. Appeal from St. Louis court of criminal correction.

James Thompson was convicted of book-making and pool-selling without a license, and appeals. Affirmed.

T. J. Rowe, for appellant. Edward C Crow, Atty. Gen., Sam. B. Jeffries, Boyle, Priest & Lehmann, W. M. Williams, and Thos. B. Harvey, for respondent.

BURGESS, C. J.

On the 19th day of January, 1900, the defendant was convicted in the St. Louis court of criminal correction, and fined $1,000, under an information filed in said court against him and others by the prosecuting attorney of said court, charging them with book-making and pool-selling in violation of an act of the general assembly of the state of Missouri entitled "An act to punish book-making and pool-selling by unlicensed persons, to provide for the issuance of such a license and to dispose of the funds arising from such license," approved April 7, 1897, at No. 112 North Fourth street, in the city of St. Louis and state of Missouri, on the 10th day of October, 1899, by unlawfully engaging in book-making by means of a system of gambling, commonly called a "book," upon the result of a certain contest of speed of beasts known as "horses," by certain persons, in the manner therein named, which was to take place thereafter, on the 10th day of October, 1899, beyond the limits of the state of Missouri, and by then and there betting money with certain persons therein named on the result of said contest, etc. Defendant appeals.

The only question raised by defendant on this appeal is with respect to the validity of the act of the legislature, which he contends is unconstitutional because violative of sections 1 and 53 of article 4 of the constitution of this state, and of section 1 of article 14 of the amendments to the constitution of the United States. Section 1 of article 4 of the state constitution provides that "the legislative power subject to the limitations herein contained shall be vested in a senate and house of representatives to be styled the general assembly of the state of Missouri." The act provides that no person shall record or register, by mechanical or other means, bets or wages, or sell auction pools, or engage in any book-making, by or through any device, book, instrument, or contrivance, upon the result of any trial or contest of skill, speed, or power of endurance of man or beast, which is to take place within or beyond the limits of this state, without first having obtained a license as in the act provided. Section 2 provides that any person of good reputation desiring to obtain a license to sell auction pools, make books, or register wagers or bets by mechanical or other means, shall apply, in writing under oath, to the state auditor, for such license, stating that the contests upon which such pools, books, or wagers are made are actually to take place upon the race course or fair grounds where he desires to carry on business, the character of the business he desires to conduct, and the length of time; and the state auditor, if satisfied with the good character of such applicant, and the good repute of the race course or fair ground upon which the applicant may desire to conduct such business, may issue a license authorizing him to do any or all of the things provided therein. The auditor may refuse to issue a license to any person to be used upon any race course or fair ground after such place or places have been operated for a period of 90 days in any one year. Section 3 requires that no license shall be issued for less than 3 nor more than 90 days, and it shall express upon its face the particular class of business which the applicant is permitted to conduct, and such license shall only authorize him to engage in pool-selling, book-making, or registering bets as expressed therein. It shall also state the number of books and registers to be used, and the length of time and place where conducted, and no license shall be issued from the 1st day of November to the 1st day of April in each year. Section 4 prohibits the business being conducted at any other place than mentioned in the license, and prevents its being conducted at any other time than between 10 o'clock a. m. and 7 o'clock p. m.; and such person holding a license shall not be permitted to sell pools to, and accept or register bets from, any minor. Section 5 prescribes the penalty for the violation of any of the provisions of the act. Laws 1897, p. 100.

It is perfectly clear that book-making and pool-selling, within the scope and meaning of this act, are gaming or gambling, which the state may, in the exercise of its police powers, prohibit altogether, or may regulate and control by restricting it to certain localities, or by prohibiting it from being practiced in other localities. Thus it was held in State v. Clarke, 54 Mo. 17, that an ordinance of the city of St. Louis licensing bawdy houses was valid under the city charter, and that a license taken out in conformity with the ordinance would shield from criminal proceedings by the state. Indeed, there is no conflict in the authorities upon this question, or the right of cities to suppress such houses, when authorized to do so by their charters. In City of St. Louis v. Fitz, 53 Mo. 585, it is said: "There is no doubt of the power of the legislature, or of municipalities deriving their power from the legislature, to make police regulations designed to promote the health and morals of the community. Laws to prohibit or regulate gaming, sales of intoxicating liquors, houses of prostitution, and thus indirectly advance the morals and good order of society, are beyond question." Any practice the tendency of which is to corrupt the morals of those who participate in or witness its practice is a proper subject of regulation by the state; and that book-making and pool-selling and betting upon horse-racing is demoralizing in its tendencies, and hence an evil which the law may legitimately suppress without infringing upon the constitutional rights of any citizen, is no longer an open question. In the case of Ex parte Tuttle, 91 Cal. 589, 27 Pac. 933, it is said: "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, is a legitimate subject for regulation or prohibition by the state; and that gambling, in the various modes in which it is practiced, is thus 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. The measures needful or appropriate to be taken in the exercise of this police power are determined by legislative policy, and for this purpose a wide discretion is committed to the lawmaking body. Whether it shall entirely prohibit, or only regulate by confining such practices within prescribed limits; whether the law shall apply to every kind of gambling, or only to those games or wagers in which evil effects appear with greatest prominence, — must be determined primarily by the legislative department of the state, or of the municipality authorized to exercise this great power, which is conferred for the purpose of securing the public safety and welfare; and unless it clearly appears that a statute or ordinance ostensibly enacted for this purpose has no real or substantial relation to these objects, and that the fundamental rights of the citizen are assailed under the guise of a police regulation, the action of that department is conclusive." The same rule is announced in State v. Donovan, 20 Nev. 75, 15 Pac. 783; Cooley, Const. Lim. p. 596. A similar question was before the supreme court of the United States in L'Hote v. City of New Orleans, 177 U. S. 596, 20 Sup. Ct. 791, 44 L. Ed. 899, in which it was said: "In this respect we premise by saying that one of the difficult social problems of the day is what shall be done in respect to those vocations which minister to and feed upon human weaknesses, appetites, and passions. The management of these vocations comes directly within the scope of what is known as the `police power.' They affect directly the public health and morals. Their management...