Hurt v. Oak Downs, Inc. , 1935 Tex. App. LEXIS 841 ( 1935 )

The plaintiffs are Oak Downs, Inc., a domestic corporation, and Winfield Morten, Jack Herman, and F. G. Cameron, incorporators, stockholders, directors, and officers of the corporation; the defendant is Honorable Robert L. Hurt, criminal district attorney of Dallas county, Tex.

In the suit plaintiffs sought and obtained, ex parte and without notice to defendant, a temporary injunction restraining him "from in any manner interfering with the operation of dog races beginning June 18, 1935, excluding Sundays, to run for 40 days, to be held on a tract of land lying West of Love Field, as more fully described in deed recorded in Vol. 1497 page 315, Deed Records of Dallas County, Texas, from interfering with the business, meet, exhibition and the betting by the pari mutuel or certificate system and from filing against these plaintiffs, their agents, servants or employes or those associated with them in the said project or business or exhibition or meet, provided that this injunction shall not prevent any investigation by the Dallas County Grand Jury of any violations of law that may occur during said race said meet, and said District Attorney may present evidence before said Grand Jury and prosecute any and all cases in which indictments may be returned, until further order of the District Court * * *" from which the district attorney prosecuted this appeal.

After excluding immaterial matters and all mere conclusions and arguments of the pleader, we are of opinion that plaintiffs show that they will suffer a serious property damage, if the district attorney carries out his purpose to prosecute them criminally and pursue them under civil statutes, for keeping certain premises for the purpose of being used as a place to bet or wager on dog races conducted under the pari-mutuel system.

As a general rule, prosecutions for the violation of penal statutes will not be enjoined, but it seems that this rule is subordinate to the principle that where there is an attempt made to enforce a constitutionally void law, or to prosecute in the absence of any law authorizing same, and property rights demanding protection are involved, such prosecution or threatened prosecution is enjoinable. See 24 Tex.Jur. p. 66, § 46, and authorities cited

That betting on dog races, under the scheme called pari-mutuel, as planned and proposed by plaintiffs, is gambling (see 27 C. J 976), is not controverted, hence it follows that, if betting or wagering on dog races is prohibited and penalized by statute, it was the plain duty of the district attorney to enforce the same, hence he should not have been enjoined.

Thus we are brought to the question: Is betting or wagering on dog races prohibited by art. 624 P. C.? If so, the keeping of premises where people resort for such purpose is made an offense by article 625 of the Penal Code. These statutes read as follows: "Art. 624. If any person shall bet or wager at any gaming table or bank or shall bet or wager any money or other thing of value at any of the following games, viz.: muggins, crackloo, crack-or-loo, or the game of matching money or coins of any denomination for such coins or for any other thing of value, or at any table or bank, by whatsoever name the same may be known, or whether named or not, and without reference as to how the same may be played, constructed or operated, or shall bet or wager upon anything in any place where people resort for the purpose of betting or wagering, he shall be fined not exceeding fifty dollars. When it is alleged and proven that the betting was on any gaming table or bank, the court or jury may, in addition to said fine, impose a jail penalty of not less than ten nor more than thirty days.

"Art. 625. If any person shall keep, or be in any manner interested in keeping any premises, building, room or place for the purpose of being used as a place to bet or wager, or to gamble with cards, dice or dominoes, or to keep or to exhibit for the purpose of gaming, any bank, table, alley, machine, wheel or device whatsoever, or as a place where people resort to gamble, bet or wager upon anything whatever, he shall be confined in the penitentiary not less than two nor more than four years, regardless of whether any of the above mentioned games, tables, banks, alleys, machines, wheels or devices, or things are licensed by law or not. Any place or device shall be considered as used for gaming or to gamble with or for betting or wagering, if any money or anything of value is bet thereon, or if the same is resorted to for the purpose of gaming or betting."

While it is the peculiar province of the Court of Criminal Appeals to construe penal statutes, we have been furnished with no decision of that court construing the statutes in the respects in which they are now being considered. It is obvious that dog racing is not specifically mentioned in the statute; therefore, if such betting or wagering, or the keeping of premises where people resort for such purpose, are prohibited, such meaning must be found in the words of general import, following specific designations, as follows: "If any person shall bet or wager * * * upon anything in any place where people resort for the purpose of betting or wagering, he shall be fined not exceeding fifty dollars." Plaintiffs insist that the doctrine of ejusdem generis is applicable as a rule of construction, and that the general language quoted should be construed as including and prohibiting only betting or wagering on games, tables, and banks, of a like kind and nature to those specifically mentioned in the statutes. In support of this contention, plaintiffs cite the recent decision of the San Antonio court, in All Texas Racing Ass'n v. State (Tex.Civ.App.) 82 S.W.2d 151, 153. This decision supports the contention of plaintiff, as it holds that the keeping of premises as a place for dog races and for betting on results thereof under the pari-mutuel system is not an offense. Entertaining as we do the greatest respect for the uniformly able opinions of members of the San Antonio Court, yet we can neither accept as sound the reasoning, nor the correctness of the result reached, in the case just referred to. In reaching its conclusion, the court implies, from certain acts of the Legislature, a legislative interpretation of the statutes under consideration. It says: "But it is clear that the Legislature did not consider that article [625 P. C., formerly Art. 388b, chap. 49, Acts 1907] or any part of it sufficiently broad to cover betting on horse races, for the Legislature in 1909 (chapter 45) specifically made it an offense to bet on horse races. And, if betting on horse races was not prohibited by that article, betting on dog races, a similar sport, was not so prohibited." Pursuing this line of argument, the court also said that: "A recent legislative construction of the present article 625 is still more forceful. Article 655a, Acts 1933, First Called Session, chapter 10, p. 32 (Vernon's Ann. P. C. art. 655a), legalized betting under the pari mutuel system upon the results of horse races. That act specifically provided that: ``The said certificate system as herein authorized shall not be construed to be either pool selling, betting or bookmaking within the meaning of Articles 645, 647 and 648 of the Penal Code of the State of Texas, Title 2, Chapter 6, according to the 1925 revision.' But there is no reference whatever to article 625. The Legislature, in legalizing betting in this manner on horse races, evidently did not consider that betting on horse races was prohibited by the terms of article 625."

In our opinion, the implication of a legislative construction, as mentioned, is unwarranted. The court assumed that, in 1909, the Legislature, realizing that the statute under consideration did not prohibit betting or horse racing, enacted chapter 45, specifically dealing with that subject. There was no occasion for the Legislature to consider whether or not article 388b of chapter 49 of Acts of 1907 prohibited betting on horse races, as such offense, as well as the buying and selling of pools, and the receiving and making of bets on horse races, and the keeping of premises for such purposes, were at that time prohibited by a separate and specific law, and had been since 1903. The first act on the subject was approved March 23, 1903 (see chapter 50, pp. 68, 69, Session Acts); this was amended by an act approved May 2, 1905, being chapter 165, pp. 398, 399, Session Acts, and in lieu of these enactments, the Legislature adopted the act approved March 11, 1909, being chapter 45, mentioned by Chief Justice Bickett. In view of this status of the law, we fail to see that either the act of 1909 or the Horse Racing Act of October 12, 1933 (Acts 1933, 1st Called Sess. c. 10, p. 32 [see Vernon's Ann.Civ.St. art. 655a] furnishes any evidence of a legislative construction of the Gaming Act approved March 28, 1907 (chapter 49), including, as originally enacted the statutes (articles 624 and 625). under consideration. In enacting chapter 49 in 1907, including the provisions brought forward in articles 624 and 625, P. C., and in enacting chapter 45 in 1909, amending the statutes with reference to horse racing, pool selling, etc., the Legislature is presumed to have acted with full knowledge of existing statutes, hence all statutes in pari materia, general and special, are to be construed in harmony with each other, as forming parts of a general uniform system, otherwise the statutes would be disjointed, inharmonious, conflicting, and confusing. 59 C. J. 1038 § 618.

The San Antonio Court also invoked the familiar rule of ejusdem generis, saying: "Moreover, considering the terms of article 625 in the light of the familiar rule of construction, the rule of ejusdem generis (that words of general description following words of particular description are to be taken as meaning only things of the same kind as those referred to in the words of particular description), it is clear that the article does not prohibit betting on dog races. The particular subjects of bets condemned were cards, dice, or dominoes, tables, banks, alleys, machines, wheels, or devices. The additional words, ``or as a place where people resort to gamble, bet or wager upon anything whatever,' have no greater scope of meaning than subjects of like kind and character to those particularly mentioned. The general expressions contained in the article do not make it an offense to bet on dog races."

The following from 59 C. J. 981-984, we believe, is a comprehensive and accurate statement of the rule mentioned; we quote: "By the rule of construction known as ``ejusdem generis', where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated, and this rule has been held especially applicable to penal statutes. The particular words are presumed to describe certain species and the general words to be used for the purpose of including other species of the same genus. The rule is based on the obvious reason that, if the legislature had intended the general words to be used in their unrestricted sense they would have made no mention of the particular classes. The words ``other' or ``any other' following an enumeration of particular classes are therefore to be read as ``other such like', and to include only others of like kind or character. The doctrine of ejusdem generis, however, is only a rule of construction, to be applied as an aid in ascertaining the legislative intent, and cannot control where the plain purpose and intent of the legislature would thereby be hindered or defeated; nor does the doctrine apply where the specific words of a statute signify subjects greatly different from one another, nor where the specific words embrace all objects of their class, so that the general words must bear a different meaning from the specific words or be meaningless, nor where there are no specific terms followed by general terms. The general expression is not to be considered as limited only to the last of the enumeration but applies to all." To the same effect see Ex parte Roquemore,60 Tex. Crim. 282, 131 S.W. 1101, 32 L.R.A. (N.S.) 1186; Board of Prison Com'rs v. Binford (Tex.Civ.App.) 259 S.W. 169,174.

Thus, we see that the rule under consideration has no application whatever, where the specific words of a statute signify subjects or things differing greatly one from another. Applying this limitation of the rule to the statute under consideration (article 624, P. C.), we find that it is made unlawful to bet or wager at any gambling table or bank. There are various table games differently named and played, the result of which being dependent alone upon skill of the player; a banking game by whatever name known, is one of chance, where a fund is offered or staked on bets; the game of "muggins" mentioned, is played with both cards and dominoes; crack-loo, or crack-or-loo, depends alone upon skill, is played by tossing up a coin and the one whose coin rests nearest a crack in the floor is the winner; the game of matching coins, is a well-known game, the result of which depends alone on luck. The specific enumeration (in article 624) is followed by this general language, "* * * or shall bet or wager upon anything in any place where people resort for the purpose of betting or wagering, he shall be fined," etc.

It is obvious, we think, that the games upon which betting and wagering is prohibited by this statute are so dissimilar in the instrument or device used, and in the method of conducting the game — in some the result being dependent upon pure luck or chance, while in others the result is dependent upon skill — that it cannot be reasonably said that the games and things specifically mentioned are species of a common genus. So, we conclude that the rule of construction under consideration has no application, and that the general language of the statute following the specific enumeration of games must be held to include something of a different genus, from the games specifically mentioned, or else words of general import must be rejected as altogether meaningless.

But, are we justified in rejecting the general language of articles 624 and 625 as meaningless? We do not think so. The general rule announced in 59 C. J. p. 995, § 595, is that: "Provided always that the interpretation is reasonable and not in conflict with the legislative intent, it is a cardinal rule of construction of statutes that effect must be given, if possible, to the whole statute and every part thereof. To this end it is the duty of the court, so far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. Just as an interpretation which gives effect to the statute will be chosen instead of one which defeats it, so an interpretation which gives effect to the entire language will be selected as against one which does not."

If, therefore, the language of general import in articles 624 and 625 P. C., cannot be ignored, as meaningless, what does it mean? "In seeking to ascertain the legislative intent where the language of a statute is ambiguous, the courts will take into consideration all the facts and circumstances existing at the time of, and leading up to its enactment, such as the history of the times, the habits and activities of the people, the state of the existing law, and the evils to be remedied by the new act * * *." 59 C. J. pp. 1014, 1016. If we are permitted to consider the facts and circumstances and the history of the times that led to the enactment in 1907 of chapter 49 on the subject of gambling, what were the facts, and what is that history? The journals of the Thirtieth Legislature reveal that House Bill No. 84, on the subject of gaming, had passed the House, also the Senate, with certain amendments, and was pending in the House subject to call at the time the Legislature adjourned over a week-end, so that its members could attend some attraction in the city of Fort Worth. During this weekend, Honorable Jeff McLean, county attorney of Tarrant county, was assassinated by a gambler, ruthlessly shot down on the streets of that city, out of revenge, because of McLean's activities, as a public official, in enforcing the Penal Code of the state against public gambling. This conspicuous tragedy shocked not only members of the Legislature present in the city, but the entire state, awakening a public conscience, and a grim purpose to stamp out gambling in its every possible form. On assembling the following week, House Bill No. 84 was placed, by appropriate resolutions of both the House and Senate, in the hands of a free-conference committee; this committee wrote into the bill new intents and purposes, phrased not in weazen words, but in meaningful vigorous terms; the committee bill passed both Houses under suspension of the rules and became immediately effective, constituting the answer of an outraged public to the murderous desperadoism of a vengeful representative of the gambling fraternity. So, we conclude that the general language of these two articles of the Penal Code include within its scope and meaning the intent and purpose to prohibit and the prohibition of all wagering and betting, on any and every device and thing, not elsewhere, and in other statutes specially prohibited, including the prohibition against wagering and betting on dog races, and the keeping of premises, where people resort to gamble and wager on the result of such race.

It is insisted, however, that even if it should be held that the general language of these statutes contain prohibitions against betting or wagering on dog races, or the keeping of premises where people assemble for such purpose, that in this respect they are ineffective, in that these offenses are not clearly defined, as required by article 1, ch. 1, of Penal Code. We fail to grasp the force of this contention. The requirement that every offense against the laws of this state shall be defined in plain language means that an act made a penal offense shall be defined with such certainty as that one may know, in advance, that the same is prohibited and penalized. Griffin v. State, 86 Tex. Crim. 498,218 S.W. 494, 495; Russell v. State, 88 Tex. Crim. 512, 228 S.W. 566, 567; Tozer v. United States (C. C.) 52 F. 917, 919. Do the statutes under consideration meet this requirement? We think so. These offenses are as well defined as others of the same statute, admittedly well defined. It must be borne in mind that the evil sought to be suppressed is gambling, and the maintenance of premises for such purpose; the particular game, event, or thing wagered or bet upon is relatively immaterial, in fact, in a majority of instances, is without evil and constitutes a pleasing and enjoyable entertainment. Offenses admittedly well defined in the statute are betting and wagering on games played with cards, dominoes, dice, tables, banks, etc.

It is a matter of common knowledge that there are many and differently named and played games by each of these means. Again, under the rule of ejusdem generis, betting or wagering on a game or thing not specifically named, but within the meaning of words of general import that follow specific designations, is considered a sufficiently well-defined offense within the meaning of the statutes. So, we conclude that the statute in question, in plain unmistakable language, informs all persons in advance that in addition to the gaming offenses elsewhere specifically mentioned, that any betting or wagering upon anything in any place where people assemble for such purpose, and the keeping of premises for such purpose, are prohibited and penalized.

For the reasons stated we believe the court below erred in granting the temporary injunction; therefore, its order is set aside and the injunction is dissolved.

Reversed and rendered.