Boyd v. State , 53 Ala. 601 ( 1875 )

STONE, J,

The appellant, defendant in the court below, was indicted and convicted in the city court of Mobile under section 3616 of the Revised Code, which declares that “any person who sets up, carries on, or is concerned in setting up or carrying on any lottery, or device of the like kind, without the legislative authority of this State, .... must on conviction be fined not less than one hundred nor more than two thousand dollars.” The indictment literally follows the form given in the Revised Code. See form 26. It is not denied that the defendant set up and carried on a lottery with its customary machinery, and that prizes in currency were drawn and distributed. The defense is that the defendant did only what he was authorized to do under the act “to establish a mutual aid association, and to raise funds for the common school system of Alabama.” Session acts 1868, page 263. To this defense it is replied that the said act, at least that part of it which, it is claimed, authorized the setting up of a lottery, is violative of the second section of article 4 of the constitution, which declares that “Each law shall contain but one subject, which shall be clearly expressed in its title.”

The clause under discussion, in language substantially similar, is found in many of the State constitutions. It is said to be of comparatively recent origin. Its aim was to correct abuses which had grown up, to the scandal of legislative bodies. This court said in Ex parte Pollard, 40 Ala. 99, that the object of this constitutional provision was “to prevent deception by the inclusion in a bill of matter incongruous with the title.” The reasons assigned for the incorporation of this new feature into the organic law of the States, are somewhat differently stated by the several appellate tribunals. They are collected by Mr. Cooley in his admirable work oñ Constitutional Limitations, page 142. He sums them as follows : “First, to prevent hodge-podge, or log-rolling legislation; second, to prevent surprise or fraud upon the legislature, by means of provisions in bills of which the titles gave no intimation, and which might, therefore, be overlooked and carelessly and unintentionally adopted; and, third, to fairly apprise the people through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order tnat they may have opportunity of being heard thereon, by petition or otherwise, if they shall so desire.” Pages 143-4. "We concur with Mr. Cooley in the reasons stated by him for the enactment of this constitutional provision, but think that the first and second were by far the most controlling.

But while giving full effect to the provision quoted above in its admitted purpose to prevent “log-rolling, surprise and fraud,” we must be careful, in the application of this rule, not to allow ourselves to be carried so far as unduly to cripple and embarrass legislation. It is not essential that the title of a statute shall define or disclose the subject with the most precise accuracy. It is enough if the subject be one, and that the title so express that subject, as that the reader will readily understand the several provisions of the enactment as being embraced in, or referable to that subject. See Ex parte Pollard, supra.

The caption of the act we are construing is “to establish a mutual aid association, and to raise funds for the common school system of Alabama.” Whether this title embraces two subjects, or whether the two purposes are so connected as to become one subject, we deem it unnecessary to determine in this case. Mutual aid, however, would seem to imply an association or enterprise entered upon by more persons than one, for reciprocal support, aid or assistance between the associates. To predicate mutual aid of a partnership or joint adventure, in any of the ordinary avocations, formed or conducted on joint account and for common profit, is certainly a strained construction of language. Nor is it easy to perceive how such joint adventure for mutual profit, and the raising of funds for the common school system of' Alabama, can become one subject. But, as we have said, we do not decide this question.

The defendant set up and carried on a lottery. Under the general law, lotteries in Alabama are prohibited. Unless the statute under discussion authorized it, the defendant violated the general law. We have carefully considered the agreed facts in this case, and the statute under which they are claimed to be justified, and we are at a loss to find in the statute any warrrant for the plain, undisguised lottery which the defendant set up and carried on. There was no “distribution of books, paintings, works of art, scientific instruments, apparatus, lands or tenements, stock, or other valuables,” save .eurreney. We hear of no “subscriptions” re-' ceived, or certificates of subscription issued; no advertisement made, giving list of articles to be distributed, with the value of each article annexed. Perhaps this was not considered necessary, as currency, which is a standard of value, is the only commodity distributed, so far as the record informs us. Although the statute imposed the “duty” on the “partnership association” to “offer premiums and prizes to the citizens of Alabama for the best essays in science and and the most deserving works of and the most useful inventions in mechanical sciences,” yet we are not informed that any step was ever taken to perform this most commendable feature of the enterprise. These views of the statute, and of the rights and powers it was intended to confer, leave it very questionable if we could affirm that the statute invoked, even if there were no doubt of its constitutionality, authorized the setting up of a lottery, as shown in this record.

But even if the right to set up and carry on a lottery is conferred in the body of the statute, it is not expressed in the title. Never was language employed less apt to convey to the mind, learned or unlearned, the idea that the partnership association — the mutual aid society — was to be an undisguised lottery; and that the encouragement of letters, the promotion of science and the arts which it proposed, was the uncertain prize, in currrency, which might fall to the ticket holder.

Luring the last three centuries most of the commercial nations of Europe and America have made the experiment of licensing and tolerating lotteries. In almost every instance, after trial, they have been condemned and prohibited as a species of gaming, and injurious to public morals. Such was their fate in England and in France. Such has been their fate in almost every State of this Union. They are now prohibited by the constitutions of more than half the States of the American Union. See American Cyclopedia, title Lottery.

In Alabama we have long had statutes forbidding and punishing lotteries; and our present constitution, article 4, section 26, declares that “the general assembly shall have no power to authorize lotteries or gift enterprizes.” A practice, so universally condemned throughout the whole domain of enlightened jsrisprudence, should surely rest its claim to legislative authorization upon a more solid foundation than doubtful implication.

In the case of Moses & Beebe v. Mayor and Aldermen and Common Council of Mobile, 52 Ala. 198, this court held that the act “to establish the Mobile Charitable Association, for the benefit of the common school fund of Mobile county, without distinction of labor,” so far as it was supposed to authorize lotteries and games of chance, was unconstitutional, because the subject was not clearly expressed in the title. No distinction can be drawn between that case and this which will benefit the present appellant. In fact, we consider the title to the statute we are construing less apt and more delusive than was the title to the act which was construed in that case. The reasoning then employed we consider unanswerable. Being fully satisfied that case was correctly decided, to preserve harmony of decision we feel compelled to hold the same features in the present act unconstitutional.

We are aware that with more or less unanimity the statute declared above to be unconstitutional, has been by this court adjudged to be constitutional and valid in three several decisions. In those cases the constitutional question above discussed was neither presented nor considered. We regret the necessity we are under to depart from the rulings of our predecessors. We regret it all the more, because those several decisions have no doubt been relied on by the appellant as authorizing him to do the act for which he Vías convicted. The relief is not with us. There being in the statute no constitutional provision which authorized the setting up of a lottery, we have no discretion or dispensing power, by which to relieve the appellant of the penalty of his offense. The doctrine of estoppel has no application to such a case.

The majority of the court hold that the judgment of the city court must be affirmed.

Chief Justice Brickell agrees with us in holding that the statute above referred to, so far as it is supposed to authorize a lottery, is unconstitutional, for the reasons stated. He thinks, however, that inasmuch as said statute has been pronounced valid by this court in the several cases of Brent v. The State, 43 Ala. 297 ; Boyd & Jackson v. The State, 46 Ala. 329, and W. W. Boyd, Jr. v. The State, in manuscript, the defendant cannot properly be convicted under this indictment. He cites Lyon v. Richmond, 2 Johns, Ch. 51; Gelpcke v. City of Dubuque, 1 Wall. 175; Cooley’s Cons. Lim. 47, and notes, in support of his views.

The majority of the court think that the case of Lyon v. Richmond only decides the familiar principle that courts will not interfere to correct mere mistakes of law. In fact we consider the case cited an authority in support of our views.

We all agree that there is no constitutional statute authorizing the act of which the defendant was convicted. It would be an anomaly in the law if we were to hold that the defendant is guiltless, when there is no dispute that he violated the only constitutional statute on the subject.