State v. Jones , 44 N.M. 623 ( 1940 )

The facts in the case at bar are essentially the same as those presented in City of Roswell v. Jones, 41 N.M. 258, 67 P.2d 286.

The Attorney General and co-counsel for appellant state: "It is true that there is a conflict of authorities on this proposition which are not reconcilable, but we believe that the best reasoned cases and the great weight of authority is to the contrary." And elsewhere: "There is considerable diversity of opinion among the courts of different states as to whether there is a consideration in the operation of the scheme generally known as `bank night'."

The majority say: "While the decisions in the United States at the time City of Roswell v. Jones was decided were fairly evenly divided, the great weight of authority since then denounces the scheme known as Bank Night and imitations thereof as a lottery."

An examination of the fourteen cases listed in support of the present majority view indicates that four of these involved criminal prosecutions. Some are by divided courts. In some, the statutory inhibition was against conducting "gift enterprises" as well as lotteries, and this was deemed of significance. In none was considered a lottery statute comparable to the one here under consideration. In none was any argument presented that we had not considered in City of Roswell v. Jones.

Unquestionably there are decisions of courts of other jurisdictions which we hold in high respect which may be cited as supporting a view contrary to that expressed in City of Roswell v. Jones, supra. But it is to be doubted if any of those courts had under consideration a statute like ours.

It is manifest that many of them approached the matter with an attitude of strict construction, because they recognized the baneful effects of lotteries upon the public. In State v. Butler,42 N.M. 271, 76 P.2d 1149, 1153, wherein Butler appealed from a conviction of the charge of having lottery tickets in his possession, we observed that the defendant claimed comfort from an expression used by us in the case of City of Roswell v. Jones, supra, that: "The mere finding of the three elements necessary to constitute a lottery, to wit, prize, chance, and consideration is not sufficient." Our comment on this claim was: "It is often said that the gravaman of the offense of conducting a lottery lies not in the wrongful intent of the sponsors, but in the baneful effect upon the public. This is true as a general proposition, but the last section of our lottery statute (1929 Comp.St.Anno., § 35-3808) reads as follows: `The provisions of the five preceding sections shall be construed to apply to every device or devices and only to such device or devices as are commonly called or known as lottery, although designated or called by any other name, but shall not be construed to apply to any sale or drawing of any prize at any fair held in this state for the benefit of any church, public library or religious society, situate or being in this state, or for charitable purposes, when all the proceeds of such fair shall be expended in this state for the benefit of such church, public library, religious society, or charitable purposes.'"

In Harriman Institute of Social Research v. Carrie Tingley C.C. Hospital, 43 N.M. 1, 84 P.2d 1088, two of the four participating Justices, concurring specially, adverted to the peculiarities of our lottery statute. Those observations are too lengthy for repetition here, it being sufficient to say that these Justices were impressed with the view that our legislature did not intend to outlaw all lotteries, but only "such device or devices as are commonly called or known as lottery." Section 35-3808. These perplexities originating in our statute give rise to a disposition toward less strict construction than that indulged by some courts which are unrestrained by an expressed legislative sanction of some forms of lotteries conducted under the circumstances detailed in the statute. The defendant in the case at bar does not come within the exception mentioned in the statute and these considerations are mentioned because appellant here again adverts to the language in City of Roswell v. Jones, supra, quoted above, and explained in State v. Butler, supra. Appellant says we did not, in City of Roswell v. Jones, supra, call attention to any scheme or give any reference by example or otherwise, wherein the elements of prize and chance and consideration were present, and yet such scheme would not be a lottery. I think the language employed in the statute is susceptible of the meaning that when considering the elements of prize, chance and consideration we must give the weight, and only the weight, to them appropriate to the evil lotteries inveighed against by our statute. In other words, the terms of our statute invite liberal rather than strict construction, in view of the statute's historical background, as set forth in the specially concurring opinion in the Harriman case. As there suggested, it seems that the legislature did leave a "no man's land" where the elements of prize, chance and consideration alone are not sufficient to stamp the scheme a lottery as "such * * * devices * * * are commonly called or known". As was further suggested by the Justices specially concurring in the Harriman case, the legislature did not intend that a scheme declared to be unlawful would be lawful if conducted for the benefit of a church, public library or religious society in this state. I prefer to think that a "no man's land" was left by the legislature where elements outside of prize, chance and consideration must have a bearing in determining whether the device is such as is "commonly called or known as lottery". Also the peculiar provisions of our statute have a bearing upon the much discussed question of the character of the "consideration" (whether direct or indirect — whether payment of money for a chance in the drawing or whether in the more technical sense as applied to the law of contracts) necessary to be present in the evil device "commonly called or known as lottery". Common knowledge among men as to how "a drawing of a prize at any fair held in this state for the benefit of any church, public library or religious society, situate or being in this state, or for charitable purposes" is conducted, does not suggest the absence of prize, chance and consideration. Yet, the legislature sanctioned such device when conducted with such charitable object in view. Mr. Justice Sadler, in his able dissenting opinion in City of Roswell v. Jones, supra, emphasized the difficulties which may confront us in our journeyings in pursuit of truth in this "no man's land". I do not undertake to forecast application of legal principles to future cases. The normal function of courts is, and clearly should be, that of applying rules of law which they announce to past transactions. It is a practical necessity that judicial decisions must be made after an event, and that they must, as a general rule, relate back to govern the transaction which provoked the controversy. It is not our province to chart this no man's land. The legislature may do so when public policy requires. It is interesting to note that although the decision in City of Roswell v. Jones, supra, was handed down April 12, 1937, State v. Butler, February 18, 1938, and in the Harriman case, October 17, 1938, there has been no modification of our lottery statute or legislative interpretation thereof. I have read the able briefs of counsel for the parties and of amici curiae, and I am not impressed that there is any cogent reason to overrule the decision in City of Roswell v. Jones, supra. The doctrine frequently termed "the rule of stare decisis", to the effect that when a point has once been settled by decision, it forms a precedent which is not afterwards to be departed from or lightly overruled or set aside, is a sound doctrine. This rule has for its object the salutary effect of uniformity, certainty, and stability in the law. It is grounded on public policy and as such is entitled to great weight and must be adhered to, unless the reasons therefor have ceased to exist, are clearly erroneous, or are manifestly wrong. It has been said that a court cannot disregard a former holding conformable to legal principles, and upheld by plentiful authority. That there be plentiful authority supporting a contrary view is not sufficient. While, perhaps, it is more important as to far reaching juridical principles that the court should be right than merely in harmony with previous decisions, in the light of higher civilization, later and more careful examination of authorities, wider and more thorough discussion, and more mature reflection upon the policy of the law, it, nevertheless, is vital that there be stability in the courts in adhering to decisions deliberately made after ample consideration. Parties should not be encouraged to ask re-examination of determined principles and to speculate on a fluctuation of the law with every change in the expounders of it. See 14 Am.Jur., Courts, Secs. 59-61; Duncan v. Brown,78 N.M. 579, 139 P. 140; Baca v. Chavez, 32 N.M. 210, 252 P. 987.

In the early part of this opinion, I adverted to a comment of the majority as to the present weight of authority. Here again, opinions differ. In State v. Stern, 201 Minn. 139, 275 N.W. 626,628, the Supreme Court of Minnesota, October 29, 1937, said that in civil proceedings the courts generally say that bank nights and similar schemes akin thereto are lotteries, but that: "In criminal prosecutions the weight of authority is to the effect that bank nights and similar plans to distribute prizes by chance are not lotteries, in that one of the three essential elements, under statutes similar to ours and under the common law, is absent; namely, a consideration given or paid by the participants in the chance." In Darlington Theatres v. Coker, 190 S.C. 282,2 S.E.2d 782, 788, the South Carolina Supreme Court, May 10, 1939, adopted the opinion of the trial court: "I am constrained to hold that under the overwhelming weight of authority the present case involves no violation of the lottery law of South Carolina." And the court concluded: "If plans of this nature are inimicable to public welfare, then it would be a matter for legislative action, and not one for the Courts."

I am impressed with the observations of the Court of Special Sessions of New Jersey, Essex County, April 25, 1938, State v. Horn, 1 A.2d 51, 53, 16 N.J. Misc. 319, in holding bank night not a lottery:

"My own viewpoint is that there should be the strict construction indicated in State v. Hundling, supra; and this because first, criminal statutes should be strictly construed, and secondly and more fundamentally, because there is a problem involved in the construction of our gaming statutes, infinitely more important than the narrow judicial proposition embraced within the four corners of a single issue. This problem is one social in character, and should not be ignored from the standpoint of realism. Our statutes in their essential terminology and application, are such as to create a situation whereby the casual or intermittent offender is brought before the court upon what may be an extremely narrow issue and if the cause is adversely decided as to him, he is branded a criminal for the rest of his life, where there may be all around him violations apparently as obvious, going ignored.

"I am not able to look with complacence on a statutory situation or the construction of such, which serves no purpose except to breed disrespect for the law in its apparent inequalities, and promotes no good social purpose looking toward the control of the vice of gaming."

For the foregoing reasons I concur in affirming the action of the trial court, but I am not persuaded that any cogent reason exists for the Court with the sanction of a bare majority to overrule its former decision. The very disparity of opinion, not only among the members of this Court, but which exists among other courts, strongly suggests the absence of occasion to refuse to adhere to the public policy reflected in the rule of stare decisis. In other words, this conflict of views so widespread seems to refute the idea that it can reasonably be said that our former decision, deliberately made after ample consideration, isclearly erroneous, or manifestly wrong. Since, however, the majority view the matter otherwise, I approve of the course pursued of making their overruling pronouncement prospective in operation.