The State v. Williams

• Citation: 60 S.W. 1077,160 Mo. 333
• Parties: THE STATE v. RICHARD WILLIAMS et al.; JAMES THOMPSON, Appellant
• Decision Date: 19 February 1901
• Court: United States State Supreme Court of Missouri

60 S.W. 1077

160 Mo. 333

THE STATE v. RICHARD WILLIAMS et al.; JAMES THOMPSON, Appellant

Supreme Court of Missouri

February 19, 1901

Appeal from St. Louis Court of Criminal Correction. -- Hon. Willis H. Clark, Judge.

Affirmed.

T. J Rowe for appellant.

The act approved April 7, 1897 (Laws 1897, p. 100), is prohibited by sections 1 and 53, art. 4 of the Constitution of Missouri and section 1, art. 14 of the amendments to the Constitution of the United States. (a) As to violation of amendment 14 Federal Constitution, see: Cooley, Const. Lim. (6 Ed.), 481; Geoza v. Freman, 148 U.S. 657; Railroad v. Pennsylvania, 134 U.S. 232; Yocum v. Hopkins, 118 U.S. 356; Missouri v. Lewis, 101 U.S. 22; Barbier v. Connoly, 113 U.S. 27; Slaughter House Cases, 16 Wall. 36. (b) As to violation of section 53, article 4, State Constitution, see: State v. Thomas, 138 Mo. 102; State v. Walsh, 136 Mo. 400; State v. Julow, 129 Mo. 176; State v. Cranneman, 132 Mo. 326; State v. Loomis, 115 Mo. 307; State v. Leman, 46 Mo. 375; State v. Hayden, 31 Mo. 35; State ex rel. v. Herrmann, 75 Mo. 340; State ex rel. v. Tolle, 71 Mo. 650; Lynch v. Murphy, 119 Mo. 63; Winchester v. Nutter, 52 N.H. 507; Brennan v. Association, 63 N.Y. 188; Swigart v. People, 154 Ill. 284.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) There can be no question but that book-making and pool-selling, as contemplated by this act, constitute gaming or gambling. At common law gaming was not a crime, unless so public as to constitute a nuisance. State v. Hawkins, 15 Ark. 259; State v. Jones, 63 Md. 253; State v. Borders, 24 Tex.App. 333; 2 McClain's Crim. Law, sec. 1282. The police power of the State, so far as it affects gambling or any other instrument of vice, may be exercised by the entire or partial prohibition of the business, practice or vice regarded as injurious; but it is more commonly exercised by imposing taxes or penalties to discourage or restrict the business or practice deemed injurious. The real object of such regulation is protection to public health, morals and business enterprise. It is unnecessary to call the court's attention to the fact that grave vices grow out of the practice of gambling and betting on the result of horse races, as well as out of any other species of gaming. Certainly it is that character of vice which the State may regulate and control in the exercise of its police power, by either prohibiting it entirely or restraining the right to indulge therein to certain localities, as well as prohibit it from being practiced in other localities. People v. Beatty, 14 Cal. 566; Commonwealth v. Smith, 166 Mass. 370; State v. Addington, 77 Mo. 117; In re Falk, 42 Oh. St. 638; Chicago v. Brownell, 34 N.E. 595. (2) The Constitution is complied with in this respect when the law operates uniformly upon all persons who are brought within the relations and circumstances provided for by it. McAnicle v. Railroad, 20 Ia. 338; Sedgwick on Statutory Construction, p. 439; Dent v. West Virginia, 129 U.S. 114; Hays v. Missouri, 120 U.S. 68; Barbier v. Connoly, 113 U.S. 27; Missouri v. Lewis, 101 U.S. 22. (3) The statute under consideration in no wise violates the fourteenth amendment of the Federal Constitution, as is maintained by the appellant. Repeated decisions from the Supreme Court of the United States have determined that legislation of this character is not in violation of that instrument. Crowley v. Christensen, 137 U.S. 86; Eilenbecker v. Plymouth Co., 134 U.S. 31; Kidd v. Pearson, 128 U.S. 1; Mugler v. Kansas, 123 U.S. 625; Foster v. Kansas, 112 U.S. 201. (4) The question here presented is not new to the courts of this country. A similar statute has been passed upon and constitutionally upheld by the Supreme Court of the State of Tennessee. State v. Debardelaben, 99 Tenn. 649. The statute was there held to be general and not class legislation. State v. Posey, 1 Hump. (Tenn.), 384; State v. Huff, 2 Swan (Tenn.), 280; State v. Ransome, 91 Tenn. 717; State v. Williams, 92 Tenn. 275; State v. Atkins, 95 Tenn. 475; State v. Mosley, 14 Ala. 390; State v. Harris, 9 Tex.App. 308. (5) After the ruling of the Supreme Court in the Walsh case, the right of book-making and pool-selling was turned loose to the people of the State and was permitted, by reason of a want of legislation, to flourish without prohibition, restriction or control until the act of 1897 was placed upon the statute books of the State. It will be noticed that this act does not entirely prevent such business from being conducted, but merely restricts and regulates it. It will not be questioned that the Legislature is clothed with full constitutional power to enact such laws and guarantee such police regulations as will preserve the peace, protect good morals, restrain vice and protect the property, health and comfort of the people; and that book-making and pool-selling is a vice properly falling within the provisions of such acknowledged authority, is not to be disputed. The act is uniform in its application and operates alike upon all coming within its provisions, and in no way denies defendants the equal protection of the law. Hays v. Missouri, 120 U.S. 68; Barbier v. Connoly, 113 U.S. 27; Missouri v. Lewis, 101 U.S. 22; Tiedeman on Police Power, p. 291.

Boyle, Priest & Lehmann, William M. Williams and Thos. B. Harvey also for the State.

(1) "Gaming is a vice which the State may, in the exercise of its police power, regulate or suppress, and it may do so by prohibiting gaming on particular games or in particular places." 14 Am. and Eng. Ency. of Law (2 Ed.), 666; St. Louis v. Fitz, 53 Mo. 585; State v. Clark, 54 Mo. 17; State v. Vic. Debar, 58 Mo. 395; Debardelaben v. State, 99 Tenn. 649; Palmer v. State, 88 Tenn. 557; Brown v. State, 88 Tenn. 572; Daley v. State, 77 Tenn. 412; Ex parte Tuttle (Cal.), 27 P. 933; State ex rel. v. Donovan, 15 P. 783; State v. Raymond, 29 P. 732; Brennan v. Brighton Beach Racing Association, 9 N.Y.S. 220; L'Hote v. New Orleans, 177 U.S. 578; Humes v. Ft. Smith, 93 F. 863; Cooley on Constitutional Limitations (3 Ed.), p. 596; Cooley on Taxation, p. 403; Houton v. State, 41 Texas; Rogers v. State, 26 Ala.; St. Louis v. Fitz, 53 Mo. 585; State ex rel. v. Donovan, 15 P. 784. (2) The restrictions contained in the law are reasonable in their nature, and are plainly designed to further the general object of the law by confining book-making and pool-selling to such persons, places and times as in the judgment of the Legislature would best serve the public welfare. Crowley v. Christensen, 137 U.S. 86; In re Ruth, 32 Iowa 250; Tragerser v. Gray, 20 A. 905; Meyer v. Baker, 12 N.E. 81; 14 Am. and Eng. Ency. of Law (2 Ed.), 672. (3) The act is not a delegation of legislative authority, but simply delegates power to determine the fact or state of things upon which the law intends to make its own action depend. Locke's Appeal, 72 Pa. St. 491; In re Flaherty, 105 Cal. 558; Crowley v. Christensen, 137 U.S. 86; Meyer v. Baker, 120 Ill. 567; State v. Hill, 19 A. 789; State v. Barrenger, 110 N.C. 525.

T. J. Rowe for appellant in reply.

2 Bouvier, p. 299, defines malum in se -- evil in itself -- a crime by reason of its inherent nature. An offense, malum in se, is one which is naturally evil, as murder, theft and the like; offenses at common law are generally mala in se. At common law no gaming was punishable, and yet it was a penal offense to keep a common gaming house. 1 Bish. Cr. Law, p. 1135. A common gaming house is a nuisance per se; and all such nuisances are malum in se -- because evil in themselves. The Act of 1897 permits the owner of a race track to keep and maintain a common gaming house. One who suffers or permits book-makers or pool-sellers to ply their vocation on his premises is the keeper of a common gaming house. Swigart v. The People, 154 Ill. 284; People v. Weithoff, 51 Mich. 203. The Act of 1897 gives to the keeper of a race track the right and privilege to keep and maintain a nuisance per se, a common gaming house, on his race track. This law bears no facial resemblance to any dramshop law that has been declared a valid law by any appellate court. The keeping of a dramshop is a legitimate business, but the keeping of a bawdy house or common gaming house is an evil in itself, and, as we previously said, is malum in se. But, suppose the General Assembly passed a law permitting the keeping of dramshops only within the inclosure of a race track, would any one for a moment deny that such legislation granted special privileges to the keepers of race tracks? Why should the owner of a track be granted the right and privilege to maintain within the fence of his race track a bawdy house, common gaming house, or a dramshop, and the same privileges denied to all other persons? Can the learned counsel for the State give a more rational answer than to say "it is a police regulation and the General Assembly has the power to regulate bawdy houses, gaming houses and dramshops?" A police regulation can not violate plain constitutional privisions. Eliminate the license feature from the Act of 1897, and the rights, privileges and immunities therein granted to the keeper of a race track are identical with the rights, privileges and immunities granted by the Act of 1895, which was declared unconstitutional in State v. Walsh, 136 Mo. 400. To declare the Act of 1897 valid, the court must overrule State v. Walsh, supra.

OPINION

In Banc

BURGESS C. J.

On the nineteenth day of January, 1900, the defendant was convicted in the St. Louis Court of Criminal Correction, and fined one thousand dollars, under an information filed in said court against him and others, by the prosecuting attorney of said court, charging them with book-making...