Phalen & Morris v. State ( 1841 )

Dorsey, J.,

delivered the opinion of this court.

It is admitted, that if all the tickets had been sold in the schemes, which have been drawn under the lottery grants in favor of Washington and St. John’s Colleges, that a larger amount would have been raised than was authorised by the acts of Assembly under which the drawings took place. But it is insisted on the part of the appellants, that notwithstanding the competency of the schemes drawn (had all the tickets been sold,) to have raised the sum of $160,000, as authorised by the Legislature of Maryland, yet, that but a small portion of that sum was; in point of fact, realized, by reason of a great portion of the tickets remaining unsold when the schemes were drawn, and by the loss of the wheel, in the high prizes coming up to the tickets which had been sold.

The first question, then, raised for our determination, is, have the lottery grants in question been exhausted by the drawing of lotteries, competent, upon the face of the schemes, to have realized the prescribed amount, or, as contended for by the appellants, are the owners of the privilege at liberty thereafter to continue their drawings, until, by the gain of the wheel or the sale of tickets, the specified amount shall have been actually raised?

But the act of 1816, chap. 89, and by the supplement thereto of 1823, chap. 193, the Visitors and Governors of Washington College are authorised to propose a scheme or schemes of a lottery or lotteries, for raising a sum of money, not exceeding eighty thousand dollars; and by the act of 1821, chap. 46, the Visitors and Governors of St. John’s College are authorised “to propose a scheme or schemes of a lottery or lotteries, for raising a sum of money not exceeding eighty thousand dollars.” The assignees of the franchise possess no greater powers than did the visitors and governors of these colleges. The terms in which the authority is communicated to them, are clear and unambiguous, to wit, to propose a scheme or schemes for raising a limited amount; when the schemes for raising that amount have been proposed and drawn, the authority given has performed its office, according to the letter of the acts of Assembly by which it is conferred. And if we look to the legislative intent in passing those acts, the construction we give them is still more strongly fortified. But it is said that it was the design of the Legislature, that the sum specified should be raised. Doubtless, such was its intention. A failure to effect it was not within its contemplation. It had given adequate means for its accomplishment, had they been pursued in the contemplated mode. It was the duty of the owner of the schemes, in the exercise of his franchise, previously to their drawing, to have sold all the tickets. Upon this assumption only did the Legislature act. It did not design to confer a floating, gambling power, of indefinite duration, which should expand and contract with the gain or loss of the wheel. But the amount to be raised (in the absence of all subsequent legislation, providing a different mode of raising it, as for example, by the consolidation system, or any other mode that might be prescribed,) was to be obtained by a sale of all the tickets embraced by the scheme, in the manner it prescribed. That such was the legislative intent, we think apparent on the face of the lottery grants before us, but is clearly deducible from all prior and subsequent enactments upon the subject.

In requiring bonds to be given for the payment of prizes, it cannot be doubted that the Legislature believed it had provided ample security, in this respect, for the owners of prize tickets; upon no other terms would it have made the grants in question. What are the provisoes upon which those grants were made by the acts of 1821, chap. 46, and of 1821, chap. 224? They are, that the purchaser or purchasers of such scheme or schemes, shall before the sale or disposal of any ticket or tickets in said lottery or lotteries, give bond to the State of Maryland, in the penalty of one hundred and sixty thousand dollars, to be approved by the Governor and Council, conditioned that he or they will well and truly apply so much of the money arising therefrom, within twelve months after the drawing of the said lottery or lotteries shall commence, as will satisfy the fortunate adventurers for prizes drawn by them, and defray the necessary expenses incurred in the management thereof. It is too dear for argument or doubt upon the subject, that by the condition of those bonds, the obligors are no further bound than for the money arising from the sale of tickets. What then is the irresistible inference of the intention of the Legislature in making these grants? It is, that to warrant the drawing of a lottery, there must have been a sale of all the tickets in the scheme. Such being the apparent in tention of the Legislature, upon every principle of sound construction we are bound to give an accordant interpretation to its acts. To give to those lottery grants the exposition which has been claimed for them by the appellants, that the schemes may be drawn at the will of the purchaser, as soon as any portion of the tickets are sold, would impute to the Legislature a design to grant an almost interminable license to the most reckless, fraudulent system of gambling that could well be practised upon the thoughtless and unsuspecting. The inducement to such a system of gaming is too obvious to be overlooked. The purchaser after the acquisition of the grants, would have everything to gain, and could lose nothing. In the almost infinite series of schemes which he might draw, no tide of ill luck that could be anticipated, could prevent the filling of his coffers by unrighteous acquirements. The gain of the wheel in every scheme drawn was all his own; its losses were thrown on the owners of the prize tickets. He might gamble indefinitely at the risk of others; of his own, nothing was put to hazard.

That wre have construed correctly the acts of Assembly in question, we think demonstrated by the first section of the act of 1810, chap. 154, which declares, “that in all cases where lotteries have been heretofore authorised, under which powrer is given to raise a particular sum of money by one or more lotteries, and the managers may have drawn a lottery or lotteries, the scheme of which purported to raise the sum authorised to be raised, that in all such cases the power and authority given to raise money thereby” is completed, and the power to draw any other lottery or lotteries under the same authority, at an end. If such were the legislative design in all previous like enactments, upon what recognized principle of sound construction can you give a different interpretation to the acts of Assembly now under consideration? And even conceding, as was slightly intimated in the argument, that this retrospective, declaratory law, is unconstitutional and void as to prior lottery grants, which otherwise would be differently construed, yet in all subsequent similar legislation, such a declaration of the will or intent of the Legislature must be regarded as of overwhelming influence, in the construction of its acts, and such is the case before us.

Believing the lottery privileges, created by the acts of 1816, chap. 89, and 1821, chap. 224, and 1821, chap. 46, to have been exhausted by the schemes which have already been drawn under said acts, we deem it unnecessary to examine the other questions which have been discussed in this cause.

The decree of Baltimore county court, perpetuating the injunction issued in this case, is affirmed.

decree affirmed.