State v. Mustachia

DAWKINS, J. Defendant appeals from a conviction and sentence for violating Act 127 of 1920 by accepting a bet upon a horse race outside of an inclosed and licensed race track. Accused was not represented by counsel in the trial, but after conviction counsel appeared for him and moved for a new trial, “for the reason that said Act 127 of 1920 is unconstitutional,” which was overruled; and a motion in arrest of judgment was. then urged upon the same ground, and likewise overruled. It is contended that the act violates section 4 of article 4 of the Constitution of 1921, declaring that: “The Legislature shall not pass any local or special law on the following specified subjects: * * * [823] “Granting to any corporation, association, or individual any special or exclusive right, privilege or immunity.” And that it also contravenes section 1 of article 14 of the federal Constitution providing: “Nor shall any state deprive any p.erson of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The State Constitution. The title of the Act 127 of 1920,' under which accused is being prosecuted, reads: “An act making it unlawful for any person to encourage, promote, aid or assist any person or pefsons to bet or wager upon the result of horse races by the use of any system, method or device, at places other than within the track qr enclosure where such races take place. The body of the law is in harmony with its title, and' makes it unlawful to “encourage, promote, aid or assist any person to bet or wager upon the result of horse races by the use of any system, method or device, at places other than within the track or inclosure where such races take place”; and we are bound to assume, since we have no jurisdiction of the facts, and nothing appearing in the record" to the contrary, that accused was shown to have done some one of the things and in the manner denounced by the act. The statute is not local, for it applies to the entire state, and it. does not confer any special privilege upon any one, for any person, firm, or corporation is at liberty to own and operate a race track, upon complying with the law. Nor does it discriminate against any' one, for betting- may be indulged in by any person, provided it be done within the inclosure of a race track. The law in question is merely an exercise on the part of the state of the police power, which it undoubtedly possesses, to. prohibit betting or gambling. The Constitution declares that: “Gambling is a vice and the Legislature, shall pass laws to suppress it.” Section 8, art. 19, Constitution 1921; article 188, Const. 1913. It is true that the Legislature has not en-' tirely prohibited gambling; but the greater includes the less, and, to the extent which it has been penalized, the lawmaking body’s power has not been exceeded. The provision is not self-operating, and.- gambling is a crime only to the extent to which the Legislature has declared it so. While it is further true that the word “suppress” is equivalent to prohibit, put down, or end .by force (Ogden v. City of Madison, 111 Wis. 413, 87 N. W. 568, 55 L. R. A. 506; Schwuchow v. City of Chicago, 68 Ill. 444; Words and Phrases, vol. 8, p. 6807, verbo “Suppress”), and the Legislature might not license, any sort of gambling, yet, until it penalizes any given act, there is no law under which its commission may be punished. The Federal Constitution. What we have said above applies with equal force to the contention that the act contravenes the federal Constitution. It applies alike to all persons under the same circumstances and conditions. For the reasons assigned, the judgment and sentence appealed from are affirmed. O’NIELL, J., being absent from the state, takes ho part in the decision of this case.