Opinion
No. 33152.
April 11, 1938.
1. LOTTERIES.
An ordinance making it unlawful to offer a prize of money or other thing of value and to award such prize to any person by lot or chance is void under statute authorizing municipalities to prohibit gift enterprises, since a "gift enterprise" is a scheme for the division or distribution of articles to be determined by chance amongst those who have taken shares in the scheme, and ordinance omits element of recipient's taking a share in scheme (Code 1930, section 2416).
2. MUNICIPAL CORPORATIONS.
In criminal cases, an ordinance otherwise void may not be so interpreted as to limit its scope to matter contemplated by statute under which ordinance was passed.
APPEAL from the circuit court of Lafayette county; HON. T.H. McELROY, Judge.
C.A. Bratton, of Oxford, for appellant.
The burden is always on the one who denies the constitutional validity of an act.
Erie Ry. Co. v. Williams, 233 U.S. 685.
It is but a decent respect to the wisdom, the integrity and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity until its violation of the constitution is proved beyond a reasonable doubt.
Ogden v. Saunders, 12 (Wheat) U.S. 213.
It is fundamental and well settled that there inheres in the sovereign state all necessary power to promote the public order, health, morals, safety and general welfare of its people; that this power, commonly referred to as police power, is limited in no way whatever except by the provisions of the state and federal constitutions.
Where a legislative act is upon a subject which is within the police power, that is, pertaining to the health, safety, morals, comfort, and general welfare of society, and has a substantial relation to the accomplishment of some purpose within the scope of that police power, then personal liberty and free use of property must yield to the restrictions made for the public good.
People ex rel. Armstrong v. Warden of New York City Prison, 76 N.E. 11, 2 L.R.A. (N.S.) 859.
The ordinance of the City of Oxford involved in this proceeding was passed by the Mayor and Board of Aldermen pursuant to the authority delegated to them by Section 2416 of the Mississippi Code of 1930.
The question of legislative power of Congress to pass an act to prohibit "gift enterprises" in the District of Columbia was reviewed by the Supreme Court of the United States in Matter of Gregory, 219 U.S. 210. In the Gregory case the constitutional question was raised in that it was insisted by the petitioner, Gregory, that the act to prohibit "gift enterprises" in the District of Columbia violated the Fifth Amendment to the Constitution of the United States. Mr. Justice Hughes in his opinion said: "This contention is without merit," and that the Congress did have the power to pass such an act. If Congress had the power to prohibit gift enterprises in the District of Columbia, and such an act passed by it did not violate the Federal Constitution, would not the legislature of the State of Mississippi have the power to pass such an act, and would it not have the power to say to the municipalities of the State of Mississippi: We delegate to you the power to regulate, suppress, or prohibit gift enterprises within your borders?
39 C.J. 303, sec. 33; Tanner v. Little, 240 U.S. 369; Rast v. Van Denman, 240 U.S. 342.
In the case of Humes v. Little Rock, 138 Fed. 929, a "gift enterprise" is defined as a scheme for the distribution of property into which some element of chance enters.
The ordinance under discussion does not use the words "gift enterprise," but it definitely describes and prohibits within the City of Oxford a certain type of "gift enterprise." We say that the Mayor and Board of Aldermen did exactly what the statute said they might do.
It is uniformly held that where there is an express legislative grant to a municipality to do a particular thing the municipal ordinance expressive of that power cannot be inquired into with respect to its policy, or reasonableness.
City of Montgomery v. Orpheum Transfer Co., 203 Ala. 103, 82 So. 117; Lindsey v. Mayor, etc., 104 Ala. 257, 16 So. 545, 27 L.R.A. 436, 53 Am. St. Rep. 44; Rund v. Fowler, 142 Ind. 214, 41 N.E. 456.
Where the ordinance is passed pursuant to a general grant of authority the courts may inquire into its reasonableness or policy, but questions of reasonableness and public policy are finally questions for the legislature and not for the courts. So what the legislature specifically says may be done cannot be set aside by the courts because they may deem it unreasonable or against sound policy.
3 McQuillin, Law of Municipal Corporations, secs. 760 and 947, R.L. Smallwood, Jr., of Oxford, for appellees.
The City of Oxford has no authority at law to prohibit the offering and awarding of prizes of money or other things of value by lot or chance.
The appellant in this case is apparently under a misapprehension as to the position of the appellees. Seemingly the appellant thinks the appellees take the position that the City of Oxford has no right to prohibit gift enterprises. On the contrary, the appellees are of the opinion that Section 2416 of the Mississippi Code of 1930 expressly gives the City this power.
It is the position of the appellees in this case that the City of Oxford by this ordinance did not define gift enterprises and prohibit them, but that it omitted from the ordinance essential features of a gift enterprise and that these omissions render the ordinance void. The question, then, as viewed by the appellees is not whether the City of Oxford had a right to prohibit gift enterprises — it admittedly had a right to do that — but whether the City of Oxford confined itself to its authority in passing the ordinance in question, or whether it went so far beyond its statutory authority as to make too sweeping and too all inclusive a prohibition against the voluntary distribution of property.
The legislature has authorized, and the courts of this state frequently follow, a proceeding of allotting or distributing property by chance or lot, as for instance in the partition of property; and in the case where election of public officers results in a tie vote, the determination of the candidate who is to receive the office, to which neither has an absolute property right, is decided by lot.
Section 6250-6252, Code of 1930; Williams Furniture Co. v. McComb Chamber of Commerce, 147 Miss. 649, 112 So. 579.
There is nothing morally wrong with the awarding of property by lot and this was the procedure followed in dividing the Promised Land between the nine and a half tribes of Israel who participated in the division. If, then, there is nothing wrong per se in a person, firm or corporation distributing its property by lot or chance, the only question to be considered is whether or not either under the general and inherent powers of the City of Oxford or under its statutory authority to prohibit gift enterprises the city is justified in passing the ordinance in question.
The ordinance passed by the Mayor and Board of Aldermen of the City of Oxford does not contemplate any scheme for the increase of business on the part of any business firm nor does it involve any selling device or any element of gain or consideration passing to the person who is awarding the prize, nor does it provide that persons must take shares in the scheme. In this one essential and vital respect it falls short of every recognized definition of the term "gift enterprise" and is so broad in its contemplation as to include any gratuitous distribution of money or property where any element of chance enters into the determination of the donee of the money or property to be awarded.
17 R.C.L. 1211; Matter of Gregory, 219 U.S. 210, 31 Sup. Ct. 144; Corporate Organization Audit Co. v. Hodges, 46 App. D.C. 460, L.R.A. 1918E 491; 38 C.J. 296; Post Publishing Co. v. Murray, 230 Fed 773.
Had the Board of Mayor and Aldermen intended to prohibit merely a gift enterprise by ordinance, it could easily have done so by merely providing that it should be unlawful for an individual to engage in a gift enterprise. There was no necessity in the ordinance attempting to define the term. It is a phrase so generally known and so widely used that the courts take judicial knowledge of the meaning of the term.
State v. Bader, O.N.P.N.S. 186; Lohman v. State, 81 Ind. 15.
Having undertaken to define the phrase, all of the essential elements of the term "gift enterprise" as provided by the general law must be included in the definition under the ordinance because into every express power delegated to a municipality is the implied restriction that it be in conformity to the general law on the subject.
Johnson v. Philadelphia, 94 Miss. 34, 47 So. 526; 19 L.R.A. (N.S.) 636; Knight v. Johns, 161 Miss. 519, 137 So. 509.
The ordinance must be construed strictly, being penal in its nature.
19 R.C.L. 811.
There is no law which prohibits the gratuitous distribution of one's property by lot or chance.
38 C.J. 291; Yellow-Stone Kit v. State, 88 Ala. 196, 7 So. 338.
For the City of Oxford then to say that within its borders it is a crime for a person to offer his money or property to one of a group of persons and to choose the individual from the group by lot clearly exceeds any power held by a Mississippi municipality under the general code charter powers.
Argued orally by C.A. Bratton for appellant and by R.L. Smallwood, Jr., for appellee.
An ordinance of the City of Oxford provides:
"Section 1. Be it ordained by the Mayor and Board of Aldermen of the City of Oxford, Mississippi, that it shall be unlawful for any person, firm or corporation to offer a prize of money, or other thing of value, and award such prize to any person by lot or chance.
"Section 2. That any person, firm or corporation convicted for violating Section 1 of this ordinance shall be punished by a fine of not exceeding One Hundred Dollars ($100.00) or by imprisonment in the city jail for not exceeding one month or both."
The appellees, who are the Ritz Theatre, Inc., Theron Lyles, its manager, and Russell Roberts, one of its employees, filed a petition in the court below from which it appears, in substance, that the Ritz Theatre is doing a theatre business in the City of Oxford, and pursuant to publication therefor gives a prize of money to a person, ascertained by lot, who has registered his name in a book provided by the theatre for that purpose. All persons over the age of eighteen may register their names in this book at will without purchasing a theatre ticket therefor, and the money is given to the person, ascertained by lot, whether he is then in the theatre or not, provided, when called from the door of the theatre, he appears and claims it.
Lyles and Roberts have been twice arrested for alleged violations of the ordinance hereinbefore set forth, convicted in each instance in the mayor's court, and have appealed to the circuit court where the cases are now pending. The city authorities, including the mayor thereof, have announced their intentions to prosecute Lyles and Roberts for each violation of this ordinance. The prayer of the petition is for a writ of prohibition directed to the mayor of the City of Oxford, who is also police justice thereof, enjoining him from the institution and trial of further prosecutions of officers and employees of the Ritz Theatre under this ordinance. The writ of prohibition was granted.
The right of the appellees to the writ of prohibition in the event the ordinance here in question is void, is not challenged.
The appellees assert that the ordinance is void for two reasons: (1) It was not passed at a legal meeting of the mayor and board of aldermen of the City of Oxford; and (2) it is beyond the power delegated to the city under chapter 50, section 2369 et seq., Code of 1930. We will pretermit the first of these objections and come at once to the second. The section of the Code under which this ordinance is said by the city to be valid is section 2416, Code of 1930, which authorizes municipalities "to . . . prohibit . . . gift enterprises." This statute came into our Codes in 1892 as section 2949 of that Code. When that Code was adopted, the phrase "gift enterprise" had long before come to have a well-known and definite meaning when used in statutes of the character here under consideration. It was considered as a species of lottery, Randle v. State, 42 Tex. 580, decided in 1875; specifically, "a scheme for the division or distribution of certain articles of property, to be determined by chance, amongst those who have taken shares in the scheme." Lohman v. State, 81 Ind. 15, decided in 1881. This definition appears in the various law dictionaries, and in Bouvier's Law Dictionary, Vol. 1, Rawle's 3d Rev., it is said, after quoting this definition, that "the phrase has attained such notoriety as to justify courts in taking judicial notice of what is meant and understood." It was approved in Re Gregory, 219 U.S. 210, 31 S.Ct. 143, 55 L.Ed. 184; Winston v. Beeson, 135 N.C. 271, 47 S.E. 457, 65 L.R.A. 167; Humes v. City of Little Rock, C.C., 138 F. 929; State v. Shugart, 138 Ala. 86, 35 So. 28, 100 Am. St. Rep. 17; Post Pub. Co. v. Murray, 1 Cir., 230 F. 773; Corporate Organization Audit Co. v. Hodges, 47 App. D.C. 460, L.R.A. 1918E, 491. See, also, 38 C.J. 296, and 17 R.C.L. 1211.
If by the ordinance here under consideration it was intended to define the phrase "gift enterprise" as used in the statute, it fails so to do; for it leaves out the element of the recipient of the property taking a share in the scheme, and the gift need not be made for the purpose of securing anything to the giver as an inducement to make it. The ordinance, therefore, is far broader than the statute and covers gifts allotted by chance not permitted by it to be prohibited. It is, therefore, void unless we can so interpret it as to limit its scope to gift enterprises contemplated by the statute. Whatever the rule in civil cases may be, this cannot be done in criminal cases. 11 Am. Jur., Const. Law, section 164; U.S. v. Reese, 92 U.S. 214, 23 L.Ed. 563, 564; U.S. v. Steffens, 100 U.S. 82, 25 L.Ed. 550. Those cases deal with constitutional power as to Congress and Legislatures; but the relation of this ordinance to the statute is the same as that of a statute to the Constitution, and, consequently, this rule applies here.
The ordinance therefore is void, and the judgment of the court below must be, and is, affirmed.