State v. Walsh

• Decision Date: 15 December 1896
• Citation: 37 S.W. 1112,136 Mo. 400
• Parties: The State v. Walsh, Appellant
• Court: Missouri Supreme Court

37 S.W. 1112

136 Mo. 400

The State v. Walsh, Appellant

Supreme Court of Missouri, Second Division

December 15, 1896

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

Reversed.

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

(1) The "bookmaking and pool selling act" of March 12 1895, upon which the information herein is bottomed, grants special privileges and immunities in violation of section 15 article 2, andsection 53, article 4, of the constitution of Missouri.State v. Hayden,31 Mo. 35;State v. Lemon,46 Mo. 375;State v. Loomis,115 Mo. 307;Swigart v. People,50 Ill.App. 185;Swigart v. People,154 Ill. 284;Brennan v. Racing Ass'n,63 N.Y. 188;Winchester v. Nutter,52 N.H. 507;Lynch v. Murphy,119 Mo. 163.(2) It violates the fourteenth amendment to the constitution of the United States, in denying the defendant equal protection of the law.State v. Burgdoerfer,107 Mo. 1;Barbier v. Connolly,113 U.S. 27;Missouri v. Lewis,101 U.S. 22;Slaughterhouse Cases, 16 Wall. 36;Yickno v. Hopkins,118 U.S. 356;Railroad v. Pennsylvania,134 U.S. 232;Geoza v. Tiernan, 148 U.S. 657.

R. F. Walker, attorney general, and Morton Jourdan, assistant attorney general, for the state.

(1)The act of March 12, 1895(Laws 1895, p. 150), in so far as it is objected to by defendant is similar to the act of April 1, 1891(Laws 1891, p. 122), and this court in State v. Burgdoerfer,107 Mo. 1, has held the act of 1891 constitutional -- first, in regard to its title; second, that the prohibition of bookmaking and pool selling is within the police power of the state; and, third, that said act, being uniform in its application to all persons who come within its provisions, is not violative of the fourteenth amendment to the constitution of the United States.(2) Bookmaking and pool selling is but a form of gambling or keeping a gaming house, and these are offenses and not such rights, privileges and immunities as are guaranteed by section 15, article 2, constitution of Missouri, and of section 2, article 4, constitution of the United States.(3) The act of 1895, in regard to bookmaking and pool selling, is uniform in its application, operates upon all alike coming within its provisions, and in no way denies the defendant the equal protection of the law.Laws 1895, p. 150;Hayes v. Missouri,120 U.S. 68;Barbier v. Connolly,113 U.S. 27;Missouri v. Lewis,101 U.S. 22.SeeState v. Burgdoerfer,107 Mo. 1, in which the cases just cited are discussed by the supreme court of this state.(4) An ordinance -- which it appears is an exact copy of a state statute as to all its material features -- which imposes a penalty for bookmaking and pool selling within the limits of a city, except in certain enumerated localities, is not void for unreasonableness, since the discrimination is not between persons, but between places, and the exception of certain localities does not authorize bookmaking and pool selling at such places.People v. Brownell, 34 N.E. 595;S. C., 14 L. R. A. 486.

OPINION

Sherwood, J.

The defendant was prosecuted under the provisions of an act approved March 12, 1895, in relation to bookmaking and poolselling.Being tried, he was convicted and sentenced to pay a fine of $ 1,000, and to be imprisoned for six months in the city workhouse.

The act on which this information is bottomed, is the following:

"An act to prohibit bookmaking and poolselling at any place other than upon the premises of regular race courses, with emergency clause.

"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, within this state, and who occupies same 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 within or without 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 take place within or without this state; or, being the owner, lessee or occupant of any room, tenement, shed, tent, booth or building, or any part thereof, knowingly permit the same to be used or occupied for any of the purposes herein above set forth, 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 set forth, 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 term of not less than six months or more than one year, and by a fine of not less than one thousand dollars, or by both such fine and imprisonment: Provided, that nothing in this act shall be so construed as to prohibit or make it unlawful for any person to engage in or register bets and wagers, make books, sell pools or bet upon any trial or contest of speed of a horse, or between horses, on the premises or within the limits or enclosure of a regular race course on which such contest of speed is had, and at and prior to the time thereof: Provided, that it shall be unlawful to make and sell said pools or book-bets to minors; and any person selling said pools and book-bets to any minor shall be deemed guilty of a misdemeanor, and upon conviction, shall be punished by imprisonment in the county jail for a term of not less than three months or more than one year, and by a fine of not less than five hundred dollars.

"Sec. 2.All acts or parts of acts inconsistent or in conflict with the foregoing section are hereby repealed."Laws 1895, p. 150.

The paramount issue presented by the record in this cause, may take the form of the question: Is the act just quoted constitutional?

It will be noted that the act does this:

First, it makes it punishable as a misdemeanor for any person who within this state, keeps any room, etc., and who occupies the same with any book, instrument or device for the purpose of recording bets, etc., or selling pools upon the result of any trial or contest of skill, speed, etc., of man or beast which is to be made or take place within or without this state.

Second, a misdemeanor for any person who thus records such bets, etc., or sells pools, etc., etc., etc.

Third, a misdemeanor for any owner, lessee, or occupant of any room, etc., knowingly to permit the same to be used, etc., for any of the purposes aforesaid.

Fourth, a misdemeanor for such person to keep in such room, etc., any device, etc., or exhibits, etc., for the purpose of recording bets, etc., etc.

Fifth, a misdemeanor for any one to become the custodian of any money, etc., which is staked, wagered, or pledged contrary to the provisions of the act.

The act thus creates five different kinds of misdemeanors, while a proviso in the same section which creates these offenses, prohibits such a construction of the act as to make it unlawful for any person to register bets, make books, sell pools or bet upon any trial or contest of speed of a horse or between horses on the premises or within the limits of inclosure of a regular race course on which such contest of speed is had at and prior to the time thereof.After this proviso, there is a second one making it a misdemeanor to make and sell such pools or book-bets to any minor.

With the exception of the first proviso, the act is substantially identical with the act approved April 1, 1891.Laws of that year, p. 122.

One of the ideas which conspicuously stands forth in our organic law is that provision which declares: "That no ex post facto law, nor law impairing the obligation...