the proof. There was no evidence of the want of consent, and this was a material ingredient in the offense charged.

Judgment reversed.

LOTTERY-POOL-SELLING NOT A "LOTTERY."

PEOPLE v. REILLY.

[50 Mich. 384; 45 Am. Rep. 47.]

In the Supreme Court of Michigan, 1883.

Pool-Selling is not Punishable as a "lottery."

Conviction of pool-selling. The opinion states the case.

John B. Corliss, City Attorney, Henry M. Duffield, City Counselor, for People. F. A. Baker, for respondent.

CAMPBELL, J. Respondent was convicted under an ordinance of the city of Detroit, section 3 of which undertook to punish the maintaining of any "lottery, policy, pool, bucket shop, board of trade, or any other like scheme or place for drawing or disposing of money, wheat or other property within the city." The complaint was in general terms and without details or description of the offense charged, except that it was "keeping and maintaining" a pool for disposing of money by means of wagers on games of base ball, horse races and other like games and sports" and maintaining " a lottery for disposing of money.

The power given by charter over various offenses partaking of the mischief of gambling was fully exercised by other sections of the ordinance, and could not by any reasonable construction include pools or lotteries. The only remaining power within the same class of mischiefs is that to "prohibit, prevent and suppress all lotteries for the drawing or disposing of money or any other property whatsoever, and punish all persons maintaining, directing or managing the same, or aiding in the maintenance, direction or management thereof." 1

The offense which the recorder finds respondent to have committed consisted in what seems to be commonly known as pool-selling, and the facts indicate that the pools were made up of amounts bid for the privilege of selecting horses out of those running in races and of bets of as many as saw fit to do so, by purchasing checks, deposited on base ball matches where those who bet on the winning combination receive the pool. Respondent had nothing to do with the races or matches.

1 sec. 43.

That this is a species of gambling is clear enough, but whether it amounts to keeping a lottery is a very different question. The term used in the charter is the same used in the criminal law of the State, and was undoubtedly used, as the other charter language was used, in a similar sense, It is a safe and necessary rule to construe criminal statutes so as to include what is fairly and reasonably within the legitimate scope of the language, but not to include what is not within the language, merely because it partakes of similar mischievous qualities. The legislative authority very frequently makes large differences between the punishment of wrongs involving many resemblances in quality because the extent of the mischief is greater and the depravity more serious in some than in others. And while all kinds of gambling belong morally to one family the discrimination between the several kinds is so great that courts can not justly confound them by construction. Lotteries are made subject to the heaviest penalties imposed on any misdemeanor and a second offense is made a felony. All other kinds of gambling covered by the statutes, even in the enlarged scope of the most recent legislation, have a maximum punishment bearing no comparison with the penalties for lotteries.2

Without discussing the limits of legislative power which may be conferred upon cities in such matters, it is clear that they have no inherent power over them, and can not exceed the authority granted.

The statutes concerning lotteries, which go back into the territorial period, have from the beginning provided the same penalty of $2,000 as the fine which might be imposed.3 This statute which was "an act to suppress private lotteries," goes more into detail than the subsequent statutes, and shows very clearly that the evil aimed at, was that class of schemes whereby large numbers of persons are enticed into purchasing tickets for the distribution of prizes in money or property upon some sort of drawing or allottment by chance. It is also to be noticed that one primary object was to punish such acts as the assumption of privileges, which it was then customary to grant to the aid of various public enterprises. Lotteries were frequently allowed to raise money for public improvements, such as schools, bridges, etc. Thus, in 1805, four lotteries were authorized for the benefit of the city of Detroit, shortly after the destruction of the town by fire. Four lotteries were allowed for the benefit of the University in 1817.5 Lotteries were also authorized in 1829, to secure free bridges and improved highway communication between Detroit and Monroe.6

1 Comp. L., secs. 7735-7737.

2 Pub. Acts 1877, p. 167.

3 Act of June 30, 1828; 3 Terr. L. 687.

4 1 Terr. L. 67.

52 Terr. L. 105.

62 Terr. L. 731.

66

By the Constitution of 1835,1 it was provided that no lottery shall be authorized by this State, nor shall the sale of lottery tickets be allowed." There can be no doubt what was meant by this language, and it clearly referred to the class of enterprises which had formerly been lawful if authorized by law, and criminal if unauthorized. The statute of 1828, covered all such cases adequately, and remained unchanged until the Revised Statutes of 1838, which introduced the sections now in force, and which has only been once amended in 1867.2 This section covered originally two classes of offenses: First lotteries as usually understood with tickets written or printed, or some equivalent device securing shares in a distribution of prizes; and second, distributions by raffling. The penalty was unchanged. The reviser both in his head-notes and in his index retained the old idea of illegal" lotteries as simply prohibited offenses as against public policy. In the revision of 1846,3 the section of 1838 was retained without variation. And in the subsequent compilations, it is noticeable that this offense is classed in the same category with illegal banking and fraudulent stock issues, both of which are usually committed in such a way as to involve large amounts and numerous persons defrauded.

In 1867,4 an amendment was made inserting after the word "lottery" where it occurred, the words "or gift enterprises," but in no other way varying the substance of the statute, which still remains as there amended. This change was no doubt introduced from a doubt whether the gift enterprises, which were then becoming numerous, belonged strictly to the class of lotteries because in some respects conducted in different ways, although reaching similar results.

No one can compare the legislation of the State without seeing that the Legislature has found it desirable to deal with lotteries differently as well as more severely than with other gambling transactions. The reason is not difficult to find. Lotteries generally involve large sums of money or large prizes of some kind and circulate their tickets in large numbers and in all parts of the country. All classes and persons of all ages are tempted to invest in the chances of sudden riches and it is a matter of history that the passion for such investment has led to serious and widespread mischief. No other form of gambling operates as extensively in its dealings or demoralizes so many people. It is this extensive reach and not merely its speculative purposes which makes lottery-gambling so dangerous. The profits are so great that small penalties might not be efficacious enough to suppress the business and the changes of our own legislation indicate this by the successive

1 Art. 12, sec. 6.

2 Rev. Stats. 650.

2 DEFENCES.

41

3 p. 685.

4 1 Sess. L. 1867, p. 122.

addition of imprisonment in the county jail, and even in the State prison, to the large fine first imposed in 1828.

It is not safe to extend these serious consequences by construction to cases which are not fairly within the language of the Constitution and statutes, especially as the Legislature has made provision for much lighter punishment in those cases of gambling which are more confined in their action and therefore less likely to do mischief on a large scale. We think that it would be straining the law to include such acts as those of the respondent within the category of lotteries and therefore we must treat the case as one which has not been placed by the Legislature uuder the classification of offenses which should be left to be dealt with by the municipal by-laws and ordinances as well as by State laws. already suggested we are not now required to discuss the propriety of such a delegation of authority if made.

The conviction must be quashed. We do not think it calls for costs of reversal.

The other justices concurred.

LIQUOR LAWS-LICENSE TO KEEP "TAVERN" IS LICENSE TO SELL

LIQUOR.

STATE v. CHAMBLYSS.

[Cheves, 220; 34 Am. Dec. 593.]

In the Court of Appeals of South Carolina, 1840.

A License to Keep a Tavern includes the privilege of retailing spirituous liquors.

INDICTMENT for unlawfully retailing spirituous liquors. The defendant was a tavern keeper and had a license as such. Verdict of guilty. Motion for a new trial.

By the Court, EVANS, J. The ground assumed in the notice of appeal, asserts in substance, that the defendant under his tavern license had a general right to sell spirits in small quantities to travelers, guests, and other persons. I will not stop to inquire whether he who abides an hour at a tavern is not as much a guest as he who remains a day or a week; nor whether there be any distinction between furnishing spirits to a guest, as a part of his entertainment (and increasing the charge so as to cover the expense), and furnishing it separate and distinct from any other entertainment. The view which we take of the subject renders such inquiries unnecessary and unprofitable. What, then, is a

tavern, and what are the rights which a license to keep a tavern confers as to the vending of spirituous liquors?

Johnson, in his dictionary, says: "A tavern is a place where wine is sold and drinkers are entertained," and Webster says a tavern is "a house licensed to sell liquors in small quantities to be drunk on the spot, and in some of the United States it is synonomous with inn or hotel, and denotes a house for the entertainment of travelers, as well as for the sale of liquors." Johnson, for his definition, gives Shakespeare as his authority. It is clear from the writings of that poet that such was the popular sense of the word in the time of Elizabeth, and Johnson's adoption of it shows that its meaning was unchanged when he published his dictionary, in the reign of George II. The popular sense in America is clearly shown by Webster's definition. It will not be questioned that if a word having a clear and definite meaning in common parlance be adopted into the law, it shall be construed according to its usual meaning; unless it appear by the law-giver in a different sense. Let us then inquire whether the word tavern is used in our law in a different sense, or in a more restricted one than its popular meaning as above stated. I begin by saying what will not be controverted, that at common law the vending of spirituous liquors was not a franchise, and therefore required no license, and as a corollary to this proposition, that until the statutes 5 and 6 Edward VI.,1 the vending of wines and other liquors was as lawful as the selling of meats, or grain, or any other traffic. That it is within the power of the Legislature of this State to control, to regulate, and even to prohibit both the sale and use of intoxicating drinks, it is not intended here to question. All that is meant to be here asserted is, that prior to that statute, there was nothing in the law which laid any restraint upon such traffic, and that it may still be carried on in all cases and under all circumstances that are not in violation of that, or of the subsequent statutes passed upon the subject.

At a very early period of the history of man, houses were put up for the purpose of vending wines and other liquors. These had originally their appropriate names, as inns, taverns, ale-houses, punch-houses, victualing-houses, porter-houses, etc. I should infer from what is said in Viner,2 under the head of "Tavern" that the original employment of the keeper of a tavern was to sell wine alone; but in process of time these originally distinct employments became confounded. The seller of wines began to supply food and lodging for the wayfaring man, and hence the word tavern came to mean pretty much the same as inn, at a period certainly as far back as the days of Elizabeth. Be that

1 ch. 25.

2 14 Vin. 439.