Crippen v. Mint Sales Co. , 139 Miss. 87 ( 1925 )

I am impelled to dissent in this case, not because of the importance of the subject-matter in controversy, for the subject-matter is a very trivial affair in my view, a veritable "tempest in a teapot," a "much ado about nothing," a pee-wee lawsuit. However, the principle of the decision is more important and, as I see it, is a plain refusal to construe the law as written by its plain language, but in effect, though not in name, a reformation of the statute.

I want to say at the outset that what I say in this opinion is not intended as a reflection on the judges who disagree with me. I have lived too long in the polemical atmosphere of the law not to know that wise men differ honestly — that what appears to one man to be a certainty, by another is regarded as its exact opposite.

The concluding provision of chapter 339, Laws of 1924: "Provided, however, that this act shall not apply to automatic vending machines which indicate in advance what the purchaser is to receive on each operation of the machine," — means to except from the statute a machine which indicates what the purchaser is to receive in advance each time he places a coin in the aperture. It does not mean and could not mean that the machine must indicate in advance all of the operations of the machine, because no person knows how many times any operator might operate it. It would be as impossible for human intelligence to know this, not knowing how many times a player was going to play, as the habit of the Eastern despots in ancient times to dream a dream and forget, and demand of the soothsayer that he tell him the dream first and then what it meant. Nothing short of divine revelation could foretell those things.

As used in the statute the word "each" refers to the several operations and not to the aggregate operations. All that is required or could be required logically would be for the player to see before placing his coin in the aperture what he would get for his coin on that particular operation, and that is exactly what the machine here involved does. If the player will only get mints for his money, that is indicated. If he would get mints plus a trade check, that is indicated before he puts his money in. In no case is there the slightest element of chance in his getting anything other than what is indicated by the machine. He knows precisely what he is going to get before he places his money and there is not any possibility of his being deceived thereby. As to how such a machine could be construed to be a gambling appliance is beyond my comprehension. That it was the intention of the legislature to legalize machines of this class is clear, not only from chapter 339, Laws of 1924, itself, but also from chapter 120, Laws of 1924, which imposes a privilege tax upon various kinds of vending machines including the kind here involved. Whether the legislature acted wisely or unwisely in passing this statute and in making the exception is no concern whatever of the courts. The legislature is intrusted with all the law-making power of the state — it is the exclusive custodian of that power. People have the right through their lawful representatives to make any law they desire so long as it is not prohibited by the state and federal Constitutions. It is the very essence of free government that the separation of the powers of government should be maintained. The court is limited in its powers to disregard statutes to the question as to whether or not they are constitutional. It has no kind of power to control the legislature in shaping the public policy of the state. It cannot review or set aside the law because it may be unwise, unjust, or oppressive, or for any other consideration of that nature. The court's inquiry is solely as to whether the statute is constitutional, and if constitutional it must be enforced. The legislature clearly had power to enact the law. At common law it is not an offense to gamble, even if this machine should be classed as a gambling machine, which it is not.

The legislature has power to prohibit gambling or to permit it, and if it does a foolish thing or an unwise thing, the remedy is not in the courts but at the ballot box. Ex parte Pierotti,43 Nev. 243, 184 P. 209, and authorities cited therein; Decennial Digest, First and Second Series, title "Constitutional Law," 70 (3); 10 Cent. Dig. "Constitutional Law," section 131; Koch v.Bridges, 45 Miss. 247; Powell v. Smith, 74 Miss. 142, 20 So. 872; State v. Henry, 87 Miss. 125, 40 So. 152, 5 L.R.A. (N.S.) 340; Yerger v. State, 91 Miss. 802, 45 So. 849;Hamner v. State, 100 Miss. 349, 56 So. 466; Abbott v.State, 106 Miss. 340, 63 So. 667.

Courts of equity have jurisdiction to reform a contract, but have no jurisdiction to reform a statute, and as a rose would smell as sweet by any other name, so the essence of the proceeding to reform is not changed by calling it construction or interpretation.

Independent of jurisdiction it would be a dangerous undertaking for the court, if it had the power to undertake the job of correcting legislative mistakes and follies, for there is much in the statutes of the past dozen years evidencing midget minded statesmen and much of folly. Still I am not disposed to be hard on the legislature. Taken as a whole it does good work and eliminates many unwise measures. There are men in the legislature who could fill any station in the government with credit, and the majority would class as "average and better." But there are usually some thirty-five per cent. to forty per cent. of the membership whose only excuse for being sent to the legislature is to keep them out of the race for constables and justices of the peace. These men have votes and have to be reckoned with by the wise ones in shaping the legislation of the session. If you antagonize their bills they strike back. They are strong on midget legislation and when they introduce a bill to place jay birds under peace bonds, or to muzzle seed ticks, or to prohibit vending machines in stores, the wise ones will vote with them for the sake of more important measures coming on. None of these pigmy statesmen go after large questions and undertake their solution, they attack small tasks. They are strong on moral questions or something that sounds well which they can take back home to their people for home consumption in future politics. They go around with a spiritual microscope searching for the germs of evils in trifles, while utterly ignoring the mountains of iniquity which stand out in plain view in the nearby landscape. Instead of making war on the beasts and birds of prey that menace society they hunt for earth worms. Conscious of their inability to deal with large matters they make a record from trifles garbed in high-sounding phrases.

The importance of recognizing the right of the people to have the laws made by the law-making department, even though sometimes that department may act unwisely, is too essential to the perpetuity of free institutions to permit the court, being in a separate department of the government with separate powers, to cross the proper limits for the purpose of undertaking to change the logical results expressed in legislation.

Those who hold judicial power and exercise the function of judging men's rights under the law should perform their duty unshrinkingly and unmindful of public opinion or popular clamor. However, when this public opinion is crystallized into law, the courts should recognize it and give effect to it, but so long as it is not crystallized into law it should have no influence in administering the law. It is the very essence of liberty and justice that rights be measured and enforced by certain standards and uniform rules. A judge must adhere to the law. He cannot rightfully make law or change law. The law should be a rule of conduct for all from the highest to the lowest. It should not be perverted even to attain a good temporary purpose. It will always happen that some wrong will be found to exist under any general rule. The human race is not perfect. They cannot declare any general rule that may not sometimes shield wrong. As long as some men are wiser than others, and as long as selfishness and greed shape the affairs of men, particular cases will arise making a departure from fixed principles seemingly desirable. It will be found, however, that adhering to the fixed principle is better, and that less injustice will result from that course in the long run. Mistakes in statutes can be corrected by the appropriate department of the government before very great mischief results, and the legislature should be looked to to make the change and not the courts.