Commonwealth v. Whipps , 80 Ky. 269 ( 1882 )

JUDGE PBYOB

delivered the opinion op the court.

The appellee, W. C. D. Whipps, was indicted by a grand jury, empaneled in the Jefferson circuit court, of the offense •of promoting a lottery, by permitting a building occupied -and owned by him to be used for the sale of lottery tickets, for the disposal of money and property by way of lottery, and by advertising a lottery known as the Willard Hotel Lottery, by which it was proposed to dispose of certain '.property (described) by lottery, See. No objection was made to the indictment,' and the defendant, by his plea, traversed the charge made against him, and by an agreement between the attorney for the state and the accused, the law and facts were submitted to the court for judgment. ■On the hearing, the appellee relied on an act of the legislature, approved the 27th of April, in the year 1880, as vesting him with authority to sell certain property, of which he was the owner, by lottery.

Section first of that act provides: “That it may be lawful for W. C. D. Whipps, of Louisville, Jefferson county, Kentucky, to dispose of the Willard Hotel property, situated on Jefferson street, in the city of Louisville, Kentucky, with two houses and lots on Green street in the rear of the Willard Hotel, &c., and for that purpose may issue and sell by his agents as many certificates of specified undivided interests therein, at prices which will, in the aggregate, amount to the fair equitable value of the property and the costs of disposing of the same in the manner hereby authorized.

“Sec. 2. That Robert Mallory, L. M. Flournoy, H. Clay, EL P. Whittaker, and G. A. Winston be, and they are hereby, appointed commissioners, any three of whom may ■act, whose duty it shall be to determine by lot, as may be mentioned in said certificates, to what shareholder or shareholders any portion or portions of said property shall belong, and to whom the title thereunto shall be made, and to do and perform all such acts as, in their opinion, may be necessary to carry this act into full effect, and shall invest the funds arising from said certificates in the payment of the just creditors of the said Whipps.

“Sec. 3. This act is intended to apply to the property described herein, and to no other, and when said property is sold, said grant shall cease and be of no effect: Provided, That there shall, in no event, ■ be but one distribution or drawing under this act,” &c.

By reason of this act, the appellee claims the right b> dispose of his property by way of lottery, and to appropriate the’proceeds to the payment of his creditors.

The court below adjudged in his favor by dismissing the-indictment, and the Commonwealth is in this court asking a reversal. The attorney for the state maintains that the act in question is. in violation of section one of the bill of rights. The section reads: “That all freemen when they form a social compact are equal, and that no man or set of men are entitled to' exclusive separate public emoluments or privileges from the community, but in consideration of public service. ”

The proper construction or true meaning of this section of the bill of rights is the issue presented, and we are aware of no case decided by this court where the question has been directly considered, if at all, and certainly no case analogous to the one under consideration.

Without discussing the grammatical construction of the language used in the section, it is plain, we think, that this constitutional inhibition was intended to prevent the exercise of some public function, or an exclusive privilege affecting the interests and rights of the public generally, when not in consideration of public service, and if made to apply to the exercise of mere private rights or special privileges, it nullifies almost innumerable legislative enactments that are to be found in our private statutes, sanctioned, in many instances, by every department of the state government. It is our boast, as is urged by counsel for the state, “that under our government none are entitled to exclusive rights, but that all are governed by equal laws, subject to like burdens, and entitled to equal privileges, having one rule for rich and poor, for favorite at court and countryman at plow:” but this doctrine of equality or maxim of constitutional law does-not mean that every man must be permitted to exercise the same special or private privilege. Special privileges may be granted to one or more citizens when the rights of others-are not affected by it. We have general laws enacted for the protection of life, person, and property, with the right to acquire and use our property and its accumulations as we see proper, subject to these general laws, and when not interfering with the rights of others.

The citizen has the right to demand that he shall be governed and protected by these general laws, and when excluded from such protection it is in plain violation of his constitutional rights. An absolute equality of private rights in the exercise of special privileges, if even possible, is not practicable under our form of government in the light this-case has been presented by counsel for the 'state. Special privileges must be.granted as a matter of necessity, originating not only by reason of our form of government, but from' the general laws enacted for the protection of person and property. General laws cannot always be applied to individual necessities, and particularly with reference to' the' right of property, and when a special privilege is granted, with reference to one’s own property, and without injury to-others, we perceive no objection to it. If the legislature' should be denied the right, by an amendment to the constitution, to legislate with reference to local or private interests, the sovereign (the people) would confer this right to local tribunals vested with similar powers. What interest has A in the sale and transfer of the property of B, if it in ,-no manner affects his private rights? and while under the .■general law the right of each to sell and convey their property in the same manner cannot be denied, if B, by special enactment, is empowered to sell and transfer his land in a different way, we cannot well perceive how this affects the constitutional rights of A. It is insisted, notwithstanding the existence of the general law, that the .■special privilege is unconstitutional, because every citizen is not authorized to sell in the same mode; that it is a legislative invasion of the rights of equality, and for that reason within the constitutional inhibitions. Conceding, for the purposes of this case, that this section of the constitution applies to the exercise of a mere private right or special privilege, where is to be found any word of exclusion in the grant of the right to sell the home of the .appellee by lottery, or the land of B by parol, and what is to prevent the legislature from granting a like privilege to any citizen upon making the application? But the word privilege, in the meaning of the constitution, is a public privilege, and not the exercise or enjoyment of a special privilege.

When the citizen undertakes to discharge a duty to the public that the state is under an obligation'to discharge, and in consideration for the undertaking an exclusive privilege is granted, the grant is constitutional, because in consideration of public service.. The exclusive right to keep a ferry, to construct and operate highways, &c. — all such exclusive rights are based upon a consideration rendered the public in the discharge of a duty the state was required to perform. It becomes a binding contract, and cannot be violated by either the state or the citizen, nor can it be repealed unless that right is reserved in the grant, or by reason of some ¡general law, and with the repeal it has all the essential elements of a contract, and the rights of the parties under it cannot be disturbed.

A mere privilege granted by the legislature for the exer- ■ cise of a private right is always subject to legislative repeal, • and while rights of property acquired by reason of such .special privileges cannot be divested, the right to repeal •exists until such rights are acquired under it, and even after, except in so far as it may be necessary to protect or preserve the property rights already acquired. This constitutes the principal distinction between grants in consideration of public service and mere privileges for the advaricement of private interests. The question as to the right of a state to •contract with the citizen is not involved in this case. The state may contract with its citizens with reference to matters of public necessity, and such contracts are as binding as contracts between individuals, the only difference being that, when the state violates its contract, the citizen is without ¡any coercive remedy, unless permission is given by the state to the party injured to seek redress by action for the wrong • complained of. The cases cited by counsel bear but little analogy to the question before us.

In the case of Holden against James, 11 Mass., an attempt was made to suspend the statute of limitation in a particular case, so as to take it out of the operation of the general law. The case of Lewis v. Webb, 3 Greenleaf, was where an appeal was authorized by the legislature in a particular case; regardless of the general law- and in Durkee •against Zanesville, 28th Wisconsin, the city of Zanesville was exempted from the payment of costs in a proceeding . against it by Durkee. This legislation was plainly in violation of the individual rights of others, and a disregard of the great principle of constitutional equality so earnestly-contended for by counsel, although the decision in each case was based mainly on the ground that the legislature was attempting to prescribe to courts of justice the character of judgments to be rendered, and was an exercise of judicial, power by the legislature in violation of the plain provisions-of the constitution. In the case of Holden v. James, reported in nth Mass., already referred to, the general limitation law had been suspended for the benefit of one party,, so as he might sue, and his adversary prevented from pleading the statute. In the discussion of that case it was said that the act was "contrary to natural justice and to the spirit of the constitution and laws of the state, by giving to one citizen privileges and advantages denied to others;” and so in all the cases where private rights are invaded or jeopardized by legislative enactments, the granting of a privilege to one-by way of exemption from the operation of a general law is-denounced by the courts as subversive of the rule of constitutional equality; and in the discussion of this class of cases-is to be found the language used by the courts that is now offered as authority for holding the act before us unconstitutional. Suppose the state, with reference to its own claim against the citizen, should have suspended the statute of limitations, or after judgment had authorized ail appeal, when at the time the judgment was rendered the law did not warrant such a proceeding, can’ it be maintained that such legislation would be unconstitutional ? No right has. been interfered with in such a case, except that of the state, and the sovereign power may not only grant the appeal, but release the debtor from his contract. (See Calkins v. The State, 21 Wisconsin; People vs. Frisby, 26 Cal.)

“Privileges (says Cooley in his work on- Constitutional ^Limitation) may be granted to particular individuals when, by doing so,' the rights'of others are not interfered with,” -and we can see ño constitutional objection to the exercisé of •such legislative power. It is a mere question of policy, to .be determined by the legislator and not the judge.

This character of legislation has been indulged in since the formation of the state constitution, and has met the approval of every department of the state government, and it is now too late to question the exercise of such a power. The right to sue the state may, by special legislation, be given to one, and, at the same time, withheld from another by reason of the general-law. It is said, however, that this is expressly authorized by the sixth section of article eight of the constitution, that provides: ‘ ‘ The General Assembly may direct, by law, in what manner, and in what courts, suits, may be brought against the Commonwealth.” ‘

This provision does not authorize a violation of the doctrine of equality under the law, and a permission to one to sue the state, without the same privilege given to all others, •is in violation of the' fundamental law, if we adopt the theory •presented by counsel for the Commonwealth. Suit after suit :is permitted to be instituted against the state by the individual citizen, and when not affecting the rights of others, there can be no objection to it. The legislature may, and often does, authorize one under the age of twenty-one years to exercise all the rights of an adult with reference to his estate and business affairs, still, if the views of counsel prevail, all such acts are unconstitutional, because the same right is not •granted to every citizen who is not an adult.

The charter of every private corporation, in which the •public can have no interest, except such as may arise by reason of business 'relations with them, • contain* grants of privileges that do not belong to an individual or to similar corporations. Such rights are not exclusive, whether granted to a corporation or to an individual. They are exceptional; privileges merely, and operate only in-the mind of the legislator as advancing the private interests of the party obtaining-the grant, without affecting-the'rights of óthers, .and such, legislation is not open to constitutional objection. The exclusive right to trade in a particular locality, or to purchase- and sell the products of the farm in a particular county, is. not only in violation of the constitution, but was illegal and void at common law. Monopolies are odious, and exclusive-rights, such as those mentioned, cannot be granted. The: Slaughter-house cases, with dissenting opinions, reported in. 16th Wallace, would have been so held but for the position assumed that the act was a police regulation, necessary for the health and comfort of the people.

In the case .of Gordon against the Winchester Building-Association, reported in 12th Bush, where the corporatiom had been authorized to loan money at ten per cent, interest, this court held, in an action to recover the money, that the-act authorizing a loan for interest exceeding that permitted, to be charged by the general law was unconstitutional, and in the decision of the case regarded it as- an exclusive right conferred on the association that brought it within the-constitutional inhibition. ■ Whether the'reasoning in that: case is sound is not material to inquire in this case, as the-court differs upon the question, as it had ■ heretofore differed, upon a similar - question brought- up from the Louisville-chancery court. In the case of Gordon the money was; loaned at ten per cent, interest, and a premium of $66: required to be paid for the- privilege of borrowing, • and the: case might well have been brought within the rule with reference to such associations upon the question of usury, as settled by this court in the case of Herbert against the Kenton Building Association, reported in 1 ith Bush. Besides, Gordon was complaining in that case,' and this court had at least a party before it who claimed that his constitutional rights would be violated by requiring him to pay this money to the corporation.

Lottery grants are now in existence in this state, and their constitutionality has never been denied, nor can the theory of counsel be maintained that their validity is upheld by reason of or in consideration of public service. There is no more obligation on the state, through its legislature, to maintain a public school at Frankfort than there is to pay the debts of the appellee, and if so, why grant a lottery privilege to the one college, and deny the right to-a like college located in a different locality ? It is conferring' a privilege on one, and withholding it from the other. These-are, in fact, mere special privileges acquired under legislative grant for the advancement of private or local interests, that in no manner violates the rights of others; and neither grant can be said to have been made in consideration of public service. . ,

The motive prompting the legislature to make the grant cannot be inquired into by this court. “Plenary power in-the legislature for all purposes of civil government is the rule,” with uncontrolled authority in making the laws within the limits of the constitution. This court has nothing to do-with the moral question involved; if it had, the case could be easily disposed of. ‘ ‘ The legislature makes, the. executive executes, and the judiciary construes the law.” (Cooley on Constitutional Limitation.)

■' As an additional argument in favor of the constitutionality of the measure, is the practical construction placed upon this section' of the bill of rights by the constant legislation of. the state conferring special privileges since the 'formation of the state constitution. When such is the case, says Cooley, “a strong presumption exists that the construction rightly interprets the intention;” and besides, says the same author, where the question of construction, after all the investigation given the subject, remains a matter of doubt, it is clear that the court should abstain from ■deciding it unconstitutional.

The appellee Whipps was involved in debt, and the legislature, upon, his application, granted him the privilege of .selling his property by lottery at a single drawing, the proceeds to be applied to the payment of this indebtedness. The extent of the grant, and the power conferred by it, is not questioned. The commonwealth, after making the ■grant, has indicted him for proceeding to act under it, and is 'insisting that he shall be fined in a sum not exceeding ten thousand dollars for promoting a lottery. No other party. is complaining, and the citizen, by reason of the grant, deprived of no right he had when the grant was made. (Patterson v. Trabue, 3 J. J. M.; McReynolds v. Smallhousey Kibby v. Chetwood’s adm’r, 4 Mon. ; 8 Bush, Williams v. Sheehan v. Basset’s heirs, 6 Mon.; Commonwealth, 27 Miss. ; Commonwealth v. Jackson, 5 Bush.)

Can this penalty be enforced ? and is the act unconstitutional? Both questions must be answered in the negative, and the judgment below is therefore affermed, Judges Hargis and Hines dissenting.