On Appellees' Motion for Rehearing.
On motion for rehearing, appellees, conceding perforce of the Cole Case the correctness of the holding that "Buck Night" is a lottery, strongly re-urge their position that, if it is a lottery, then for that reason, its operation is not subject to being enjoined under Articles 4664-4667, R.S. 1925, Vernon's Ann.Civ.St. arts. 4664-4667.
Art. 4667 provides:
"The habitual use, actual, threatened or contemplated, of any premises, place or building or part thereof, for any of the following uses shall be enjoined at the suit of either the State or any citizen thereof:
"1. For gaming or keeping or exhibiting games prohibited by law."
Appellees do not contend, of course, that lotteries are not prohibited by law. Nor do we understand appellees to contend that the operation of a lottery is not, in common parlance, gambling. But what we understand appellees to contend is that when the history and circumstances of this legislation are considered, and the history and circumstances of legislation against gambling generally, and against lotteries in particular, are considered, it will be seen that Art. 4667 was not intended to apply to lotteries.
It is doubtless true that lotteries occupy a unique place in the history of legislation against gambling in Texas. Every constitution of our State from 1845 down, has contained provisions against lotteries similar to those in our present constitution. And it is true that no other form of gambling has been thus singled out, and expressly denounced. Various reasons may be assigned for this. Other governments at various times have resorted to lotteries as a means of raising money. And in Lee v. City of Miami, 121 Fla. 93, 163 So. 486, 101 A.L.R. 1115, it was said that one of the chief characteristics of lotteries is that they infest the whole community, reach every class, prey upon the hard-earned savings of the poor, and plunder the ignorant and simple, whereas, in comparison, other forms of gambling affect only a few individuals. But for whatever reason the prohibition against lotteries was placed in the constitution, the result is that the legislature could not, if it wished, legalize any gambling device that would in effect amount to a lottery, while it has inherent power either to prohibit or regulate any other form of gambling.
We are not disposed to contest the proposition that "Lotteries are generally classified as a species of gambling, though the statutes dealing with them and other forms of gambling have recognized a clear line of distinction between them. This distinction has been recognized by different degrees of punishment and by the ascription of different attributes to each". Lee v. City of Miami, 121 Fla. 93, 163 So. 486, 489, 101 A.L.R. 1115 (cited by appellees). But the question we
have before us is: Did the legislature mean to include lotteries along with other forms of gambling in Art. 4667? The primary rule governing construction of statutes is to ascertain the Legislature's intention from the statutes' language. Wintermann v. McDonald, Tex.Sup., 102 S.W.2d 167. Article 10, and Sections 1, 6, and 8 thereof (R.S. 1925) reads:
"Art. 10. [5502] [3268] General rules
"The following rules shall govern in the construction of all civil statutory enactments:
"1. The ordinary signification shall be applied to words, except words of art or words connected with a particular trade or subject matter, when they shall have the signification attached to them by experts in such art or trade, with reference to such subject matter. * * *
"6. In all interpretations, the court shall look diligently for the intention of the Legislature, keeping in view at all times the old law, the evil and the remedy. * * *
"8. The rule of the common law that statutes in derogation thereof shall be strictly construed shall have no application to the Revised Statutes; but the said statutes shall constitute the law of this State respecting the subjects to which they relate; and the provisions thereof shall be liberally construed with a view to effect their objects and to promote justice."
Applying these statutory rules of construction to Section 1 of Article 4667, reading: "1. For gaming or keeping or exhibiting games prohibited by law"; how is it possible to say that lotteries are not included? The word gaming includes lotteries. State v. Randle, 41 Tex. 292; Boatwright v. State, 118 Tex. Crim. 381, 38 S.W.2d 87; McRae v. State, 46 Tex. Crim. 489, 81 S.W. 741; Berry v. State, 106 Tex. Crim. 657, 294 S.W. 216. Gaming is not a word of art, or a word connected with a particular trade or subject matter, having a technically fixed meaning. And the Legislature, having used a word which is comprehensive enough to include, in its ordinary signification, lotteries, on what principle are we authorized to look to the history of legislation relating to gaming, in order to engraft on the word gaming some limitation in meaning that will exclude lotteries? On what principle can we suppose that the Legislature meant to exempt lotteries from the provisions in question? Surely not because of the fact that lotteries occupy an invidious prominence among the various forms of gambling. If lotteries are so much worse than other forms of gambling that their greater evil makes them different, and puts them in a class to themselves, this seems to us a reason for believing the Legislature meant to include them, rather than to exclude them, from the operation of the article in question. To construe gaming, as used in the enactment, as excluding from its meaning lotteries, is to place, by judicial construction, a limitation thereon, which would not tend to promote either the object of the enactment, or justice. To prevent, by injunction, the operation of an unlawful lottery is certainly no injustice. And why a lottery should be immune from the salutary restraint contemplated by the enactment, more than less objectionable forms of gambling, it is hard to see. Certainly there is nothing in the enactment itself to suggest any such immunity was intended. The only immunity prescribed by the enactment, is with respect to gaming that is not prohibited by law. Since a lottery is gambling, and is prohibited by law, it comes within the terms of the enactment. Under the view which we have expressed it becomes unnecessary to pass on whether the appellant was authorized to proceed under Articles 4664-4666.
Appellees' motion for rehearing is refused.
Motion refused,
PLEASANTS, C. J., absent.