State Ex Rel. Harrison v. Deniff

PER CURIAM.

Defendants have appealed from a judgment of abatement declaring certain described premises situated in the town of Malta to be a common nuisance in that the operation of punch boards therein constituted gambling contrary to law. Some of the punch boards offered a prize consisting of cash and others merchandise. In each the player gave a cash consideration for a chance to win either cash or merchandise, depending upon whether the player punched a lucky number.

Defendants rely upon sections 93-6101, 94-35-167, and 57-102, R. C. M. 1947, but this proceeding was brought under sections 94-1002 and. 94-1003, R. C. M. 1947, which in substance declare buildings a nuisance wherein gambling is carried on contrary to any of the laws of the state and authorize their abatement.

The sole question is whether the operation of punch boards constitutes gambling contrary to the laws of the state. Clearly the operation of the punch boards constitutes a lottery as defined in R. C. M. 1947, sec. 94-3001.

“Play at lottery is gambling.” State ex rel. Leahy v. O’Rourke, 115 Mont. 502, 146 Pac. (2d) 168, 169. But defendants contend that their operations were made legal and lawful by sections 94-2401 and 84-5701, R. C. M. 1947, and that because of section 57-104, R. C. M. 1947, there is no nuisance.

Section 57-104 provides: “Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.”

Section 94-2401, R. C. M. 1947, prohibits the operation or the conduct of all gambling, but it provides that “it shall be lawful for cigar stores, fraternal organizations, charitable organizations, drug stores and other places of business” to operate certain enumerated games to be played for pastime and amusement only upon payment of a ten dollar license fee per table used or operated in such place of business; “and that places of business may, upon the payment of a license fee therefor to the county treasurer in the sum of ten dollars ($10.00) annually, exhibit for use and sale to all customers not minors, trade stimulators, such as pull boards and ticket boards, where each board so used returns to the owner or business not to exceed the going retail price of the goods disposed of and sold and disposed of through the use of the same, and which goods sold and disposed of through the use of the same must not be other than the goods constituting the usual stock in trade of the business using the same.”

Section 84-5701 defines the word “trade stimulator” as “any device or object housing, containing or enclosing, or having as a part thereof numbered tickets, variegated symbols and tokens of any pull board, ticket board or punch board or their equivalents, any one or more of which announces that an award will be made to a purchaser thereof in terms of merchandise or other things of value, but does not mean a slot machine or mechanical device. ’ ’

Section 84-5702 provides in part: “From and after the effective date of this act, it shall be lawful for any person as defined herein, to exhibit for use and for sale and to exhibit, sell and use trade stimulators, which, for the purposes of this act, shall be considered any device or object housing, containing or enclosing, or having as a part thereof numbered tickets, variegated symbols, and tokens, or any pull board, ticket board, or punch board, or their equivalents, any one or more, of which announces that an award will be made to a purchaser thereof in terms of merchandise or other things of value, upon the exhibitor permanently affixing to such trade stimulator a use tax stamp of the value hereinafter prescribed. * * *”

Therefore, it is the contention of defendants that inasmuch as the above sections have made it lawful to use and operate punch boards, there can be no nuisance under the provisions of section 57-104 for the reason that they were maintaining them under the express authority of the above statutes.

It is the state’s contention that these sections are in conflict with Article XIX, sec. 2, of our Constitution, which provides: “The legislative assembly shall have no power to authorize lotteries, or gift enterprises for any purpose, and shall pass laws to prohibit the sale o£ lottery or gift enterprise tickets in this state.”

There has been much discussion in the decisions from the various states and in the briefs of counsel and amici curiae as to the distinction between lotteries, gambling devices and betting. The cases and texts are full of decisions discussing the question as to whether the constitutional definition of the word “lottery” is the same as the present statutory definition, namely, “a lottery is any scheme for the disposal or distribution of property by chance, among persons who have paid Or promised to pay any valuable consideration for the chance of obtaining such property or a portion of it * * *” (R. C. M. 1947, sec. 94-3001) or whether in addition to the three elements of prize, consideration and chance there must be other elements, such as sale of tickets, or whether it must be a gift enterprise, or whether there must be a widespread distribution, or whether there must be a scheme or system. It is not necessary in this case to go into the fine distinctions between the definition popularly given to the word “lottery” and its generally accepted meaning or the meaning applied under a more complex definition including other elements than the three mentioned, because in this case all of the elements are present. These punch boards have tickets. The widespread distribution or “pestilence” is present all over the state. They do comprise a system, and therefore under any definition of lottery these punch boards and pull boards are included and are within the constitutional prohibition. Therefore, the legislature had no power to pass an act authorizing the use of punch boards or pull boards, whether known as trade stimulators or any other name, and had no power to authorize the licensing of such devices. Sections 94-2401 et seq. and 84-5701 et seq., authorizing and licensing so-called trade stimulators, are void and invalid as violative of the constitutional prohibition.

This court in State ex rel. Dussault v. Kilburn, 111 Mont. 400, 109 Pac. (2d) 1113, 1115, 135 A. L. R. 99, said: “ ‘ “In no field of reprehensible endeavor has the ingenuity of man been more exerted than in tbe invention of devices to comply with the letter but to do violence to the spirit and thwart the beneficent objects and purposes of the laws designed to suppress the vice of gambling. * * *” (City of) Moberly v. Deskin, 169 Mo. App. 672, 155 S. W. 842.’ ” Quoting from the case of Harvie v. Heise, 150 S. C. 277, 148 S. E. 66, 69.

The same statement might be made with respect to lotteries and gift enterprises. Each case must be decided upon the facts as presented to the court. The case at bar clearly includes all of the elements of a lottery under any of the definitions presented.

However, defendants contend that until the statutes are declared unconstitutional they cannot have their premises abated when they operated in compliance with that statute. This contention is without merit. In the first place, as to some of the boards in question defendant had not paid the tax or license fee required by the above cited statutes, and hence, as to such-boards, they were not being operated in conformity with the statutes. Likewise, the good faith of defendants is a matter to be considered by the trial court upon application of the owner under the provisions of section 94-1009, R. C. M. 1947.

The judgment appealed from is.affirmed.