Hurt v. Oak Downs, Inc.

Until the Legislature has enacted a statute prohibiting betting or wagering on dog races, I content myself with the laws as written, conceiving it to be the duty of the judiciary to decide on rights, regulated or controlled, according to the laws of the land, and not on belief of what ought to be the law. The judiciary should not legislate, but only determine the law as enacted by the legislative branch of the government, and not exalt its belief or notion above the law, and follow such as a higher Code.

The appellees in this case are shown to have valuable property rights, which they are not allowed to enjoy because of the acts and threatened acts of the appellant. Their investment of more than $50,000 is threatened to be destroyed by an agency of the state, in not allowing them to operate their property. These rights are vested property rights, and should not be denied to them, if there be no law offensive.

If the appellees, in operating their business, violated the Penal Code of this state, the appellant and other officers of the state of Texas have a right, and it becomes their duty in the name of the state, to file charges and complaints in the criminal courts of this state and subject them to legal punishment without molestation or interference by injunctive writs; but, on the other hand, if betting on dog races is not prohibited by the Penal Code, then the state of Texas through its constituted authorities, should respect the rights of its citizens, regardless of the personal views of such officers.

The San Antonio Court of Civil Appeals, in the case of All Texas Racing Ass'n v. State, by Shook, Crim. Dist. Atty., 82 S.W.2d 151, on facts similar to the one at bar, held that the keeping of a place for dog races and for betting on the results thereof, under pari-mutuel system, was not an offense under Texas law. The appellant, being an officer of the state, in my opinion, is bound by that decision, until it is overruled or reversed by the Supreme Court of this state, and it became his duty to uphold the sanctity of the law, as there pronounced, regardless of his personal views. The decision was also binding upon the district judge of Dallas county, who granted the temporary injunction in this case, and upon all officers and agents of the state of Texas in all proceedings involving the issuance of temporary writs of injunction effective prior to a hearing in the Supreme Court. No district court has a right to decide cases and adjudicate property rights of litigants contrary to the decision of an appellate court deciding the same question. In my opinion, trial courts must follow and be bound by a ruling of law made by a Court of Appeals, until such ruling is overruled or set aside by the Supreme Court, or until conflicted with by another Court of Appeals, and the decision is entitled to the respect of all inferior courts of this state. Thus, it was not within the province of the district court to determine the correctness of the decision of the Court of Civil Appeals at San Antonio; it was its duty to respect that decision, and, in obedience to the mandate and respect of a higher authority, the learned trial judge in this case, following that rule, granted the temporary injunction, thereby holding the matter in statu quo, pending a final determination of the issue in the Supreme Court of Texas; his action should be affirmed.

Furthermore, in my opinion, the decision of the San Antonio Court, supra, is an excellent reasoned opinion, and correctly decides the law of this case. Dog races and pari-mutuel betting thereon does not violate the penal laws of this state, and no officer of this state, in the discharge of his duty of enforcing the penal laws of this state, has a right to interfere therewith.

It must be borne in mind that only those acts are criminal when clearly made so by the statutes of the state. The Penal Code expressly makes it an offense to bet or wager at any game of cards, dice, or dominoes; at any gaming table or bank; at any game of muggins, crack-loo, crack-or-loo, or the game of matching money or coins or "upon anything in any place where people resort for the purpose of betting or wagering"; upon the result of an election; at any game of baseball or football, and, prior to the act of 1933 (see Vernon's Ann.Civ.St. Art. 655a), on any horse race (Penal Code, article 615, et seq.). Betting or wagering is not illegal, merely as betting or wagering. It is the betting or wagering at the games, tables, and banks, expressly enumerated in the statute, which constitutes the offense denounced. This has always been the rule and is the law in Texas. The Supreme Court, as early as McElroy v. Carmichael,6 Tex. 454, and again in Houghton v. State, 41 Tex. 136, and in all cases since that time, announces this as a rule, and has been universally followed from that day to this. Horse racing and dog racing are not games [Panas v. Texas Breeders Racing Ass'n (Tex.Civ.App.)80 S.W.2d 1020], and certainly are not tables or banks.

Articles 624 and 625 of the Penal Code, which are the acts of the Code involved here, were passed in 1907, prohibiting the betting and wagering or keeping: a place where people resort to gamble, bet, or wager on specific games and devices; and, following the class of games and devices, the act prohibits in general words betting or wagering "upon anything in any place where people resort for the purpose of betting or wagering." In construing statutes of this nature, the Supreme Court of this state has adopted the universal doctrine of ejusdem generis, and that, where general words follow an enumeration of persons or things, such general words are not to be considered in their widest extent, but are to be held as applying only to persons or things of the same kind or class as those specifically mentioned.

In the case of Bailey v. Texas Indemnity Insurance Co., 14 S.W.2d 798, 802, the Commission of Appeals, speaking through Judge Short, adopted and approved the following language from the Supreme Court's decision, in Farmers' Mechanics' Nat. Bank v. Hanks et al., 104 Tex. 320,137 S.W. 1120, Ann. Cas. 1914B, 368, as follows: "When there are general words following particular and specific words, the former must be confined to things of the same kind." In the Farmers' Mechanics' Nat. Bank v. Hanks, supra, the Supreme Court cites, with approval, the case of Ex parte Muckenfuss, 52 Tex. Crim. 467, 107 S.W. 1131, 1132, by the Court of Criminal Appeals, in which Judge Ramsey held: "It is a familiar rule that, where general words follow particular and specific words, the former must be confined to things of the same kind. It has been held, also, that this rule is especially applicable in the interpretation of statutes defining crimes and regulating their punishment. See McDade v. People, 29 Mich. 50, citing American Transportation Co. v. Moore, 5 Mich. 368; Hawkins v. Great Western R. Co., 17 Mich. 57, 97 Am.Dec. 179; In re Ticknor's Estate, 13 Mich. 44; Phillips v. Poland, L. R. 1 C. P. 204; Hall v. State, 20 Ohio, 7; Daggett v. State, 4 Conn. 60, 10 Am.Dec. 100; Chegaray v. Mayor, etc., 13 N.Y. 220; 1 Bish.Cr. Law, § 149; Dwarris, 621.

"The doctrine itself is thus well expressed in Lewis' Sutherland Statutory Construction: `When there are general words following particular and specific words, the former must be confined to things of the same kind. This is known as the rule or doctrine of "ejusdem generis." Some judicial statements of this doctrine are here given: "When general words follow an enumeration of particular things, such words must be held to include only such matters or objects as are of the same kind as those specifically enumerated." "The rule is that, where words of a particular description in a statute are followed by general words that are not so specific and limited, unless there be a clear manifestation of a contrary purpose, the general words are to be construed as applicable to persons or things or cases of like kind to those designated by the particular words." "It is a principle of statutory construction, everywhere recognized and acted upon, not only with respect to penal statutes, but to those affecting only civil rights and duties, that where words particularly designating specific acts or things are followed by and associated with words of general import, comprehensively designating acts or things, the latter are generally to be regarded as comprehending only matters of the same kind or class as those particularly stated. They are to be deemed to have been used, not in the broad sense which they might bear if standing alone, but as related to the words of more definite and particular meaning with which they are associated." The rule is supported by numerous cases.' Hurd v. McClellan, 14 Colo. 213, 23 P. 792; Washington Electric Vehicle Transportation Co. v. District of Columbia, 19 App.D.C. 462; Balkcom v. Empire Lumber Co., 91 Ga. 651, 17 S.E. 1020, 44 Am. St. Rep. 58; Grier v. State, 103 Ga. 428, 30 S.E. 255; Davis v. Dougherty County, 116 Ga. 491,42 S.E. 764; Misch v. Russell, 136 Ill. 22, 26 N.E. 528, 12 L.R.A. [125] 25; Ambler v. Whipple, 139 Ill. 311, 28 N.E. 841, 32 Am. St. Rep. 202; Webber v. Chicago, 148 Ill. 313, 36 N.E. 70; Cecil v. Green, 161 Ill. 265,43 N.E. 1105, 32 L.R.A. 566; Elgin Hydraulic Co. v. Elgin, 194 Ill. 476,62 N.E. 929; Chicago Union Traction Co. v. Chicago, 199 Ill. 484,65 N.E. 451, 59 L.R.A. 631; Marquis v. Chicago, 27 Ill. App. 251; City of Cairo v. Coleman, 53 Ill. App. 680; McKeon v. Wolf, 77 Ill. App. 325; Philips v. Christian County, 87 Ill. App. 481; Town of Stites v. Wiggins Ferry Co., 97 Ill. App. 157; Roberts v. Detroit, 102 Mich, 64, 60 N.W. 450,27 L.R.A. 572; Rhone v. Loomis, 74 Minn. 200, 77 N.W. 31; State v. Barge, 82 Minn. 256, 84 N.W. 911, 53 L.R.A. 428; Leinkauf v. Barnes,66 Miss. 207, 5 So. 402; State ex rel. Cannon v. May, 106 Mo. 488,17 S.W. 660; Greenville Ice Coal Co. v. Greenville, 69 Miss. 86,10 So. 574; State v. Dinnisse, 109 Mo. 434, 19 S.W. 92; State v. Schuchmann, 133 Mo. 111, 33 S.W. 35, 34 S.W. 842; State v. South,136 Mo. 673, 38 S.W. 716; Ruckert v. Grand Ave. Ry. Co., 163 Mo. 260,63 S.W. 814; Bachman v. Brown, 57 Mo. App. 68; McCutcheon v. Pacific R. Co., 72 Mo. App. 271; State v. Ennis, 79 Mo. App. 12; Kime v. Crider, 6 Pa. D. 688; In re Barre Water Co., 62 Vt. 27, 20 A. 109,9 L.R.A. 195; American Manganese Co. v. Virginia Manganese Co., 91 Va. 272,21 S.E. 466; People v. Dolan, 5 Wyo. 245, 39 P. 752; Baker v. Crook County Com'rs, 9 Wyo. 51, 59 P. 797; United States v. Wilson (D.C.) 58 F. 768; Bruen v. People, 206 Ill. 417, 69 N.E. 24; Lassen v. Karrer,117 Mich. 512, 76 N.W. 73; State v. Krueger, 134 Mo. 262, 35 S.W. 604; Edgecomb v. His Creditors, 19 Nev. 149, 7 P. 533.

"This precise rule has received indorsement in our own courts. Murray v. State, 21 White & W. 620[21 Tex. Crim. 620], 2 S.W. 757, 57 Am.Rep. 623. In that case, Judge White says: `The leading and controlling rule in the construction of statutes — in fact, the primary and fundamental one — is to interpret them according to their true meaning and intent. To ascertain this intent it is the duty of the court to find, by other established rules, what was the fair, natural, and probable intent of the Legislature."

In a very recent case, Thomas v. State, 88 S.W.2d 485, decided only yesterday, not yet reported [in State report], the defendant was convicted for keeping a place to bet, wager and gamble on horse races, the Court of Criminal Appeals, in construing article 625, P. C., applied the doctrine of ejusdem generis, using this language, viz.: "If appellant under the facts in this case, could be prosecuted and convicted under Article 625, supra, then any person who provided a building, room or place, where people might resort to bet or wager, on football, baseball or the result of an election, could also be prosecuted under said article, although horse racing, football, baseball or betting on an election is not mentioned or referred to therein. If the Legislature had intended to include an offense of betting on horse races, bookmaking or pool selling in the general statute, article 625, supra, it could have said so, and obviated the enactment of special statutes on the subject. * * * Inasmuch as article 625, supra, specifically mentions the games and things which are therein prohibited, it occurs to us that the Legislature did not intend to include therein betting on horse races, football and baseball games, bookmaking or pool selling. * * * The words, `or as a place where people resort to gamble, bet or wager upon anything whatsoever' is but a cleaning up phrase, in the construction of which the rule of ejusdem generis must be resorted to, and when we apply that rule, we find that it refers to and means acts of like or similar nature as those specifically mentioned in said article. It does not seem reasonable that anyone will seriously contend that horse racing, bookmaking or pool selling are similar in nature as gaming on cards, dice or dominoes."

The cited cases illustrate the doctrine that has received the express sanction and approval of the Supreme Court of this state. Applying the rule to the case at bar and considering and comparing the general nature of the portion of the Penal Code, the conclusion is inescapable that betting on horse races or on dog races, or keeping a place for that purpose, does not come under the category of the games played with cards, dice, and dominoes; muggins, crack-loo, crack-or-loo and matching money or coins; table, bank, and banks, which are enumerated in the statute, and on which betting is specifically prohibited.

Lending aid to this interpretation of the articles, the intent and construction placed on them by the Legislature itself may be reviewed; and, in my opinion, the Legislature has applied the doctrine of ejusdem generis to this act by the passage of further legislation, prohibiting betting and wagering on things clearly not of the same enumerated class. Illustrating this conclusion, the Legislature, at the same session, only a few days after the passage of this act, passed the act (Pen. Code 1925, art. 646) prohibiting the betting and wagering on football and baseball. Evidently, the Legislature did not consider that these games belong to the same class as enumerated in the considered articles, and, certainly, they do not. Subsequent to 1907 and prior to 1909, horse racing and dog racing evidently occupied identical positions before the law. In 1909, the Legislature thought it was necessary to pass a special statute prohibiting the betting on horse races (Pen. Code 1925, art. 648), then, certainly, it was also necessary to pass a special statute prohibiting betting on dog races. Again, in 1933, the Legislature, by amendment (Vernon's Ann.Civ.St. art. 655a), legalized pari-mutuel horse race betting. In this amendment, the Legislature expressly mentioned the articles of the Penal Code intended to be superseded by such amendment, and which articles the Legislature considered as making betting on horse races a crime. The amendment refers expressly to articles 645-647 and 648 of the Penal Code. There is no reference to articles 624 and 625, or effort to amend or supersede these articles. If these articles impaired horse racing and made betting on such an offense, then certainly the Legislature would have mentioned these articles along with the other articles which had theretofore made betting on horse racing an offense. So, the conclusion is inescapable, in my opinion, that the Legislature did not consider that articles 624 and 625 prohibited betting on dog racing. If betting on horse racing was not prohibited by these articles and the special statute of 1909 (article 648) had to be passed, to make it an offense, then, manifestly, articles 624 and 625 do not make betting on dog races an offense.

In the opinion of All Texas Racing Ass'n v. State, supra, Judge Bickett very aptly expressed the law applicable to this case, and concluded that "It is not an offense under the laws of this state to keep a place where dog races are run and betting upon the results of such races is done under the parimutuel system." So, there being no law against it, the state of Texas, through its officers, has no right to interfere with appellees' rights; but, it is of paramount importance that officers predicate their action on the fundamental premise, which has served as the corner stone of the edifice on which the strength of this government has been tested since its inception, to exhaust the resources of the state in defense of the rights of its humblest citizen. In my opinion, the judgment of the lower court should be affirmed, and, so believing, register my dissent.