Opinion of the Justices to the House of Representatives , 208 Mass. 607 ( 1911 )

To the Honorable the House of Representatives of the Commonwealth of Massachusetts:

We, the Justices of the Supreme Judicial Court, having considered the question upon which our opinion is required under the order of April 4, 1911, a copy of which is hereto annexed, are constrained to answer it in the negative. The principles applicable to statutes of this kind were considered and discussed in Commonwealth v. Emerson, 165 Mass. 146, Commonwealth v. Sisson, 178 Mass. 578, and O'Keeffe v. Somerville, 190 Mass. 110. In the last of these cases a statute was held unconstitutional in part upon grounds which are equally applicable to the House bill referred to in the order, and which require us to hold that the provisions of this bill are unconstitutional.

The bill is drawn in broad terms, and it purports to forbid transactions that are not different in principle from contracts of sale which always have been held to be within the constitutional right of persons in every State to possess and acquire property, to transact legitimate business and to buy and sell and get gain. U. S. Const. Amendm. art. 14. Declaration of Rights, art. 1. We cannot doubt that the bill is intended only to include cases such as this court held not to be included in St. 1884, c. 277, as amended by St. 1898, c. 576, now R. L. c. 214, § 29. See Commonwealth v. Sisson, 178 Mass. 578. The reasons for the decision in the case just cited would not apply to a decision as to the meaning of this bill.

There is nothing in the conduct proposed to be prohibited that necessarily appeals to the gambling instinct or involves any element of chance. Such statutes and ordinances have been held unconstitutional by the highest courts in a large number of States. State v. Shugart, 138 Ala. 86. City Council of Montgomery v. Kelly, 142 Ala. 552. Ex parte McKenna, 126 Cal. 429. Ex parte Drexel, 147 Cal. 763. Denver v. Frueauff, 39 Col. 20. Hewin v. Atlanta, 121 Ga. 723, 731. Long v. State, 74 Md. 565. State v. Sperry & Hutchinson Co. 110 Minn. 378. State v. Ramseyer, 73 N. H. 31. People v. Gillson, 109 N. Y. 389. People v. Dycker, 72 App. Div. (N. Y.) 308. People v. Zimmerman, 102 App. Div. (N. Y.) 103. Winston v. Beeson, 135 N. C. 271. State v. Dalton, 22 R. I. 77. State v. Dodge, 76 Vt. 197. Young v. Commonwealth, 101 Va. 853. There are numerous similar decisions in the federal courts.

The Court of Appeals of the District of Columbia, in its decisions in Lansburgh v. District of Columbia, 11 App. Cas. (D. C.) 512, and in District of Columbia v. Gregory, 35 App. Cas. (D. C.) 271, stands almost alone, although it has been followed by one or two federal judges, in reaching an opposite conclusion.

The recent decision in Matter of Gregory, 219 U. S. 210, has no bearing upon the question before us, as the judge who wrote the opinion was careful to put the decision upon grounds that have no relation to the validity of such provisions as those of this bill.

Marcus P. Knowlton.

James M. Morton.

John W. Hammond.

William Caleb Loring.

Henry K. Braley.

Henry N. Sheldon.

Arthur Prentice Rugs.