Boyd & Jackson v. State

PETEBS, J. The appellants, who were defendants in the court, below, were indicted at the February term, 1871, of the city court of Montgomery, for setting up and carrying on a lottery without the legislative authority of the State. The indictment was returned into court on the 17th day of March, 1871. On the trial below, the defendants were found guilty and fined one hundred dollars. For this sum, and costs, judgment was properly rendered. And from this judgment the defendants appeal to this court. There was a bill of exceptions taken by the defendants on the trial in the court below. From this, it appears that the defendants set up in their defense a certain act of the general assembly of this State, entitled “ An act to establish a mutual aid association, and to raise funds for the common school system of Alabama,” approved the 10th day of October, 1868. — Pamph. Acts 1868, pp. 263, 264, [333] No. 43. Under authority of this act, the defendants had the right to set up and carry on a lottery, such as the defendants were engaged in. But it was contended, on the part of the State, that this act had been repealed before the finding of said indictment; that is, by an act entitled “ An act to repeal an act entitled an act to establish a mutual aid association, and to raise funds for the common school system of Alabama,” approved March 8, 1871.— Pamph. Acts 1870-71, p. 217, No. 197. On the other hand, it was contended by the defendants, that the State could not repeal said first mentioned act, so as to deprive them of the privileges under it, and for which they had paid into the treasury of the State the sum of two thousand dollars, for the year ending in November, 1871. The 4th section of said act first above named, is in these words : “ Sec. 4. Be it further enacted, That before commencing business under the provisions of this act, the said parties shall deposit in the treasury of the State, to the credit of the school fund and for educational purposes, and annually thereafter, the sum of two thousand (2,000) dollars, for the term of twenty years, or so long as they may do business under the provisions of this act within said period, during which time the business aforesaid shall be exempt from taxation, except for State purposes.” — Pamph. Acts 1868, p. 264, sec. 4. The proof showed, that this annual sum of two thousand dollars had been regularly paid into the treasury, as required by said act last above said, in the month of November in each year, since the approval of said act, and that the last payment was made in November, 1870. These facts are admitted in the argument here. Prom this statement of the case, it is very evident that the defendants, when they were indicted, were acting under a license granted by legislative authority. The repeal of the act of December 10, 1868, could not impair this right. It was the fruit of a contract, a vested right, which the State could not take away. It was fenced about and protected by the highest principles of justice and by the supreme law. The State had sold the privilege to set up and carry on a lottery for a year at least, and had received the [334] price of the privilege in advance. This was clearly a contract, which the State is forbidden to impair. In such a case the State is the grantor, and it is estopped by its own act. — Fletcher v. Peck, 6 Cr. R. 137 ; Dartmouth College v. Woodward, 4 Wheat. 657 ; New Jersey v. Wilson, 7 Cr. R. 164; Terrel v. Taylor, 9 Cr. R. 43 ; Von Hoffmun v. City of Quincy, 4 Wall. 550 ; Jefferson Br. Bk. v. Skelley, 1 Black. 446. Besides, the same principle operates in this case that was allowed to control the decision in the case of Brent v. The State, (43 Ala. 297.) There this court very properly say: “We can see no good reason why a State, as well as an individual, is not held bound by this salutary and just maxim, that ‘ no man shall take advantage of his own wrong.’ — Broom’s Legal Maxims, top page 205. We think it clear that the appellant did not intend to violate any penal or other law of the State; in other words, that he acted in good faith, and verily believed he was doing what the State, by its statute, clearly authorized him to do.”— 43 Ala. 301, 302. This reasoning precisely meets the exigencies of this case, and it was a construction of the same statute in controversy here. The only difference between the two cases is, that the indictment in Brent’s case occurred before the attempted repeal of the law, under which the defendants in both cases acted, and in this case the indictment was found after the attempted repeal. But the foregoing discussion shows that, in this case, this difference can not be permitted to alter the result. The judgment of the court below is reversed, and the cause remanded, with instructions to the court below to discharge the defendants in that court, said Boyd & Jackson, from farther prosecution on the indictment in this case.