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Bl. Comm. 168. In general, the words , permitted gambling to be carried on in a "gaming" and "gambling" in statutes are store kept by him in Ottawa, and with havsimilar in meaning, and either one compre- ing offered for sale and sold lottery tickets. hends the idea that by a bet, by chance, or He was found guilty by the police judge, by the transpiring of some event unknown and fined five dollars on each of the two until it occurs, something of value is, as counts in the information. From this conthe conclusion of premises, agreed to be viction he appealed to the district court, transferred from a loser to a winner. Bish. where a jury was waived, and the cause St. Crimes, f 858; Black, Law Dict. 530. submitted to the court on the following The word "gambling" is conclusive of haz- agreed statement of facts: "First. At all arding as well as playing. Bennett v. State, times hereinafter mentioned the defendant 2 Yerg. 474. A lottery is defined as "a was and is a partner in the firm of Davenhazard in which sums are ventured for a port, Lathrop & Co., which firm is now and chance of obtaining a

greater value." for several years last past has been operatBoth gambling and lotteries were nuisances ing a dry-goods store in good faith at No. in the eyes of the common law. They are 228 S. Main St., Ottawa, Franklin county, generally prohibited as being detrimental Kansas; that they have now, and at all to the public, as promoting unlawful times have had, a large and first-class stock scheres, cheating, and other corrupt prac- of dry goods, of the value of more than tices. The buying and selling of lottery $10,000, and that they had in connection tickets is a species of gaming, and within with said stock a good stock of millinery the inhibition of the act. In State v. Asso- goods. Second. Said firm, some days prior ciation, supra, our attention was not called to October 19, 1894, placed in its window to section 368 of the Criminal Code.

In re

a box about 18 inches long by 8 inches wide, ferring in that case to the absence of any with a glass front, in which box said firm statute providing punishment for persons placed, so that the same could be seen, $25 carrying on lotteries, we had in mind the in U. S. bills. The said box is and was failure of the legislature to impose penal- locked. The said firm then advertised and ties by a positive statute to carry into force offered to the public that all persons buying and give effect to section 3 of article 15 of goods in their store to the amount of fifty the constitution. The words “without any cents or more, and paying for the same, visible means of support” do not limit or would be given a small iron key, and that qualify the subsequent provisions of the the person getting the key that opened said statute, and therefore they were properly box would receive the $25, there being but omitted from the allegations of the in- one key given, or to be given, out that would formation. The prisoner will be remand- in fact unlock said box, and that no m mber ed. All the justices concurring.

of said firm or employé in said store should be entitled to or receive a key. That any

person holding a key is permitted to try (54 Kan. 711)

to unlock said box therewith at any time DAVENPORT V. CITY OF OTTAWA. between December 26 and 31, 1994. Third. (Supreme Court of Kansas. March 9, 1895.) That on October 19, 1894, defendant sold LOTTERY-What CoxstituTES-PRIZES TO Stimu- | to sundry persons dry goods out of said LATE TRADE.

store for 50 cents and more, and received The defendant was a partner in the firm the pay therefor, and that upon selling said of D., L. & Co., operating a large dry-goods store

goods and receiving such pay he gave to in the city of Ottawa. Said firm placed in its window a locked box, with a glass front, con

such customers keys, that they might at the taining $25 in bills, and advertised that all proper time try to unlock said box. That persons buying goods in their store, and paying to each of said keys ‘was attached a card, therefor 50 cents or more, would be given a key, and one and only one key would be given out

having printed thereon as follows: $25.00 which would unlock the box; that the person

Free. In United States Notes. $25.00 Free. receiving the key which would unlock the box We have placed in our window a glass inonwould be given the $23 from it. The defendant sold goods at the usual and ordinary prices,

ey box containing $25 in U. S. notes. We without extra charge on account of said key, to

will give a key to every purchaser of 50 divers persons, for 50 cents and more, and gave cts. or more. One key only will unlock the to each of said persons a key, to which was at

box. This may be the one. Keys may be tached a card stating, in substance, the above offer. Held, that such transactions were in ef

tried any time between December 26 to 31, fect sales of merchandise and lottery tickets for inclusive, 1894. Everyone holding a key an aggregate price, and that a conviction there

will be permitted to try and unlock the box, for under a city ordinance was right.

and the person holding the key that will (Syllabus by the Court.)

unlock the box will be presented with the Appeal from district court, Franklin coun- contents, $25.00, absolutely free, without rety; A. W. Benson, Judge.

strictions or reserve. Keys will not be noWilliam Davenport was convicted of main- ticed unless attached to the original tag. No taining a lottery, and appeals. Affirmed. employé allowed to have any keys. Daven.

The defendant, William Davenport, was port, Lathrop & Co., Ottawa, Kansas. Onearrested and brought before the police court Price House. (Read the other side.) $25.00 of the city of Ottawa, charged with having Free. $25.00 Free. Davenport, Lathrop & Co.

The

stands alone. No matter how low goods are cuniary consideration paid; (2) a determina. priced elsewhere, you can always buy them tion by chance what and how much he who cheaper of Davenport, Lathrop & Co. Visit pays money is to have for it.” It is urged our store, and get a key that may be worth that the agreed facts show that the defend$23.00 to you. After trying keys, please ant was a merchant conducting a legitimate leave them at the store. (Read the other business, with a large stock of general merside.)' Fourth. At the time defendant de- chandise, which he sold for the usual and livered said keys and cards to said cus- ordinary prices, and that the scheme of givtomers he did not know whether said keys, ing the money in the box to whomsoever or either of them, would unlock said box. should chance to get the key that would unFifth. The said firm and said defendant lock the box was merely in the nature of an made no extra charge by reason of said advertisement to draw attention and custom keys, but sold the goods in the usual way, to the defendant's store; that, inasmuch as at the same price that such character of the defendant received no more in any ingoods had been and was being by said firm stance for his goods than their fair and usual and other merchants sold in the market in market value, no compensation was paid for said city, at and prior to the time that said the chance, but that the keys to the box and firm began giving out said keys. The said the chance to obtain a prize were a free gift firm made no charge, directly or indirectly, to his customers, which he had a perfect for said keys, or for the privilege to which right to offer. This argument, while plausithe holders of said keys were entitled, un- ble, is not sound. The defendant advertised less the purchase and payment of said goods his goods for sale. At the same time he adbe construed to be a charge."

vertised that to every purchaser of goods to The sections of the ordinance on which the the value of 50 cents or more, paying in cash prosecution was based are as follows: therefor, a key would be given, and that the

“Sec. 40. It shall be unlawful for any per- person receiving the key which would unlock son or persons to sell or offer for sale, in the box should receive the $25 as a free gift. the city of Ottawa, Kansas, any lottery Each sale, then, was a sale, not of the goods, ticket or part thereof, or to print and pub- but of a chance to obtain $25. In this inlish in said city any advertisement of any stance, it may be conceded that the main lottery or of the sale of any ticket or part purpose of the defendant was to increase his thereof in any lottery. Any person who legitimate business by this scheme, and that shall do any of the acts declared unlaw- the sale of merchandise was not used merely ful in this section shall upon conviction as a cover for conducting a lottery. thereof in the police court be fined in any purpose of the defendant undoubtedly was to sum not exceeding one hundred dollars or attract attention and stimulate trade at his by imprisonment in the city prison not ex- store; but this case must be determined by ceeding ninety days, or by both such fine the legal principles applicable to it. Supand imprisonment."

pose that instead of a large stock of general "Art. II, sec. 13. It shall be unlawful for merchandise, on which only moderate profits any person or persons to set up, open, keep are made, the defendant kept only such artior maintain any gaming or gambling house cles as usually bear a very high percentage in the city of Ottawa, or lease or let any of profit, and instead of offering $25 had ofhouse or other building for the purpose of fered $1,000, on precisely the same terms as setting up or keeping therein gaming or this $25 was offered, could any one doubt gambling devices, or permit any description for a moment that those who are inclined of gambling or playing any game of chance to invest small sums for the purpose of gainfor money, goods or other valuable thing ing large ones would be likely to purchase in any dwelling house, store, booth, tent, articles for which they had no special need, shop or other tenement building or place merely with the hope of gaining the prize ofused, owned or occupied by any such person fered? Though the goods in such a case and any person who shall be guilty of any should be sold only at the regular retail act declared unlawful in this section shall

price, the main business of the defendant on conviction be fined in any sum not ex- would become that of selling chances to ceeding one hundred dollars."

draw the $1,000, rather than merchandise for The district court also found the defend- a legitimate profit. The key, with the card ant guilty, and assessed the same punish- attached, was in substance and effect a lotment. From this judgment the defendant tery ticket. Purchasers were given to underappeals.

stand, whether truthfully or not does not Smart & Muesse, for appellant. H. A.

affect the case, that one key, and one only, Richards, for appellee.

of those given out, would unlock the box,

and that whoever chanced to get the proper ALLEN, J. (after stating the facts). The key would get the money.

It is said that no only question presented for our consideration element of chance existed, because the right by the record in this case is whether the de- of the purchaser to obtain a prize was in fendant sold lottery tickets. Counsel for ap- fact absolutely determined the instant he repellant contend that there are two indis- ceived the key. If the key fitted the lock, pensable elements in the offense: "(1) A pe- the money was his from that instant. If it His pe

did not, it was not his. This contention is nances amendatory thereto. On the 13th of not sound, though specious. Neither buyer | September, 1894, upon the written complaint nor seller was supposed to know which was filed against him, a warrant was issued by the true key to the box, and the fact would the police judge of the city to the chief of only be actually determined when the trial police, directing him to arrest M. E. Lowe, was made at the time appointed to unlock and bring him before the police judge, to be the box. But, even if we assume that the dealt with according to law. On the 20th chance was determined when the sale was of September, 1891, M. E. Lowe presented made, it would be equally a lottery, for the his petition to one of the justices of this fortunate person would at once obtain a court for a writ of habeas corpus. right to the prize, though he could not in tition, omitting caption, exhibits, and verififact get it until the time appointed. The un- cation, was as follows: "The petition of M, fortunate purchaser would at once receive E. Lowe respectfully shows: That he is unhis merchandise and his blank in the lottery. lawfully imprisoned, detained, confined, and No sound distinction exists between the prin- restrained of his liberty by H. C. Lindsey, ciple involved in this case and that in the chief of police of the city of Topeka, and case of State v. Mercantile Ass'n, 45 Kan. Ed. Woodruff, keeper and jailer of the city 351, 25 Pac. 984. The case of State v. Mum- prison of said city, in Shawnee county, in ford, 73 Mo. 617, is also directly in point. this state, at the city jail in the city of ToPrizes were offered to subscribers to the peka, in the county of Shawnee, Kansas. Kansas City Times, each subscriber receiv- That the imprisonment, detention, confineing a ticket entitling him to participate in a ment, and restraint are illegal, and that the drawing of prizes, and no extra charge above illegality thereof consists in this, to wit: the ordinary subscription price being made. That the only pretext or cause of such arThe supreme court of Missouri held this a rest and detention is by virtue of a warrant lottery, and that subscribers to the news- of arrest issued out of the police court of the paper bought at the same time, and for one said city, upon a complaint charging the peand the same consideration, the newspaper titioner with the alleged violation of a preand the ticket in the lottery. So, in this tended ordinance of the city of Topeka, No. case, the purchaser, for one undivided price, 1718, copies of which warrant, complaint, bought merchandise and a ticket in the and ordinance are hereto attached, marked scheme which was to determine who should Exhibits 'A,' 'B,' & 'C,' respectively; and have the prize. These views are also up- that the said pretended ordinance is null and held in the case of Hudelson V. State, 94 void, in this, to wit: In attempting to creInd. 426; U. S. v. Zeisler, 30 Fed. 499; Bell ate the office of city scavenger, for which V. State, 5 Sneed, 507; Thomas v. People, 59 there is no authority of law, and in giving Ill. 160. Judgment affirmed. All the jus- the mayor authority to appoint a city scavtices concurring.

enger, which is not provided for by law; in

attempting to absolutely prohibit any person (54 Kan. 757)

or persons from engaging in the business of In re LOWE.

a scavenger unless appointed by the mayor (Supreme Court of Kansas. March 9, 1895.)

and approved by the council; in attempting

to break up the business of this petitioner, VALIDITY OF ORDINANCE-CREATION OF MONOPOLY --City SCAVENGERS.

in which he has invested a large sum of Ordinance No. 1718 of the city of To

money, and has been engaged in for several peka, entitled “An ordinance providing for city years; and for the further reason the ordiscavengers, prescribing the duties and regulations nance is in derogation of the vested rights of governing the same, providing a license therefor,

this petitioner, under a contract entered into fixing the fees to be charged, penalties for violating rules and regulations thereof, and repealing

between himself and the city of Topeka in ordinance No. 694, published June 30, 1887, May of 1893, and which is now existing in and ordinance No. 983, published July 19th, full force and effect, a copy of which con1889," as amended by ordinance No. 1744, attempts to authorize the creation of a monopoly

tract is hereto attached, marked Exhibit 'D,' of a lawful calling, is in restraint of trade, and and made a part of this petition. Wherefore void.

your petitioner prays that a writ of habeas (Syllabus by the Court.)

corpus may be granted, directed to the said Petition by M. E. Lowe for a writ of ha- H. C. Lindsey and Ed. Woodruff, commandbeas corpus. Petitioner discharged.

ing them to have the body of this petitioner On the 12th day of September, 1894, there before the supreme court, at a time and was filed in the police court in the city of place therein to be specified, to do and reTopeka a duly-verified complaint against M. ceive what shall then and there be considE. Lowe, charging that on the 11th day of ered by your honors concerning him, togethSeptember, 1894, and prior thereto, he did er with the time and cause of this detention then and there unlawfully engage in the and said writ; and that your petitioner may business of a city scavenger, contrary to the be restored to his liberty. M. E. Lowe. J. ordinances of the city of Topeka, and espo- S. Ensminger, Atty. for Petitioner." cially in violation of ordinance No. 1718, be- Section 1 of ordinance No. 1718, as amend. Ing an ordinance entitled “An ordinance pro- ed by ordinance 1744, referred to in the peviding for scavengers,” etc., and of ordi- tition as Exhibit “C," reads:

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“Section 1. That section one of ordinance only question in this case requiring considernumber 1718 be, and the same is hereby, ation is as to the validity of ordinance No. amended so as to read: 'Section one. The 1718, providing for the appointment of city mayor shall at the regular meeting in May scavengers. By the terms of the ordinance of each year, by and with the consent of the as amended by ordinance 1744, it is made council, appoint two or more suitable per- the duty of the mayor, with the consent of sons, corporations or firms to act as city the council, to appoint two or more suitable scavengers for the ensuing year, or who shall persons to act as city scavengers. The duhold said position during the pleasure of the ties of the scavengers are prescribed at some mayor and council. A license shall be is- length, and include a removal of the consued to such persons, corporation or firm in tents of privy vaults and cesspools, dead aniwhich shall be written or printed the name mals, garbage, and offal. The ordinance of the person to whom issued, the date there- fixes the compensation to be paid by private of and the time when the same shall expire; persons for the cleaning of privy vaults and and all licenses issued to city scavengers cesspools, and for the removal of dead anishall expire on the first day of May next mals, but not for any other scavenger work. after the same are issued unless sooner can- By section 6 it is rendered unlawful for any celed by order of the mayor and council, person to engage in the business of a scav. and all licenses to city scavengers shall be enger without having a license as prescribed signed by the city clerk, and attested with by the ordinance, and a penalty is imposed the seal of the city. No license shall be is- for a violation of the ordinance. The right sued to scavengers until all the requirements of the city council to pass this ordinance is of this ordinance shall have been complied claimed under subdivision 11 of section 11 with: provided, however, that it shall be the of the act to incorporate and regulate cities duty of the mayor, by and with the consent of the first class, being chapter 18 of the of the council, to appoint two or more suit- General Statutes of 1889, which provides that able persons, corporations or firms to act as the mayor and council shall have power "(11) city scavenger until the regular meeting in to make regulations to secure the general May, 1895, or to fill a vacancy or vacancies health of the city, to prevent and remove whenever the same shall occur before or nuisances, to regulate or prohibit the conafter time, in the same manner as appoint- struction of privy vaults and cesspools, and ing for a full term.'

to regulate or suppress those already conSection 4 provides, among other things: "It structed, to compel and regulate the connecshall be the duty of the city scavenger to tion of all property with sewers, to suppress remove the contents of privy vaults and hog pens, slaughter houses and stock yards, cesspools, dead animals, garbage and offal, or to regulate the same, and prescribe and when directed by the city board of health enforce regulations for cleaning and keeping or the mayor and council, and the contents the same in order, and the cleaning and keepof privy vaults and cesspools, when notified ing in order all warehouses, stables, alleys, by citizens in the manner hereinafter speci-yards, private ways, out houses and other fied. Citizens may notify said city scaven- places where offensive matter is kept, or ger, verbally or in writing, of any cesspool permitted to accumulate, and to compel and or privy vault he or they may desire to have regulate the removal of garbage and filth beemptied, and shall tender therewith to said yond the limits of the city." city scavenger the fee for such services as It is said that the ordinance is a reasonable herein specified."

regulation, enacted for the preservation of Section 6 contains the following provisions: the health of the people of the city; that, of "It shall be unlawful for any person to en- necessity, a large measure of discretion is gage in the business of a scavenger in the reposed in the mayor and council in selectcity of Topeka without procuring a license ing the means necessary to preserve the therefor in the manner herein provided, and health of the inhabitants; and that in enany person, corporation or firm who shall so acting this ordinance the mayor and council engage in such business shall be deemed have kept within the limits of their powers. guilty of a misdemeanor, and upon being That accumulations of filth, decaying carfound guilty of said offense shall be fined casses, fermenting garbage, are not only ofin any sum not less than five dollars nor fensive to the senses, but endanger the health more than fifty dollars for each offense.” of the community, must be conceded. It.

Subsequently a writ of habeas corpus was must also be admitted that the legislature issued, and a return made attempting to jus- may properly delegate to the mayor and tify the arrest and imprisonment of the pe- council the power to make all necessary regtitioner under the provisions of the city or- ulations for preserving the cleanliness of the dinance No. 1718, providing for city scaven- city, and to prevent the accumulation of nui. gers. The case was heard before the court sances. This was the subject under considat the October sitting for 1894.

eration when the provision last quoted was J. S. Ensminger, for petitioner. D. C. Til

incorporated in the statute. Have the mayor lotson, for respondent.

and council exceeded the limits of their au

thority? In support of the validity of the ALLEN, J. (after stating the facts). The ordinance, Slaughterhouse Cases, 16 Wall.

er

as

36, are cited. In these cases the act of the seem, under the authorities, may properly legislature of Louisiana granting a corpora- be regarded as a public function, for the distion the exclusive right to maintain slaugh- charge of which a monopoly may be created. terhouses in the parishes of Orleans, Jeffer- But this ordinance goes further, and gives to son, and St. Bernard, and prohibiting all oth- the scavengers the exclusive privilege, also,

persons from maintaining and using of cleaning privy vaults and cesspools, and slaughterhouses within those limits, was up- of removing garbage, not only from the held, the chief justice and three of the asso- streets, but from the private premises of the ciate justices dissenting. In the case of citizens. By its terms, it would prohibit the Butchers' Union Slaughterhouse Co. 7. Cres- owners from performing these services for cent City Live-Stock Landing Co., 111 U. S. themselves, or from employing any one else 746, 4 Sup. Ct. 652, it was held that the than the persons appointed. It not only exclusive privilege given to the slaughter- makes a monopoly of the cleaning of vaults house company for the term of 25 years by and cesspools, which are necessarily offensive the act under consideration in the case first to the senses, but it also includes the recited was not binding on the lawmaking moval of garbage. It would be somewhat power for that period, but that, under the difficult to say just what is included in the provisions of the new constitution, the legis. term "garbage.” Webster defines it lature, in the exercise of its police power on “properly that which is purged, or cleansed subjects affecting public health, might make away; the bowels of an animal; refuse parts other and different provisions and regula- of flesh; offal; hence the refuse animal and tions, which would have the effect to de- vegetable matter from a kitchen," It will prive the company of its monopoly under the be observed that the monopoly under considcharter. The decision was placed on the eration is not one granted directly by the ground that the power of a state legislature legislature, as in the case first cited, but by to make a contract of such a character that, a city council, claiming to act under legislaunder the provisions of the constitution of tive authority. the United States, it cannot be modified or Section 2 of the bill of rights in the conabrogated, does not extend to subjects af- stitution of this state reads as follows: fect public health or public morals, so as “Sec. 2. All political power is inherent in to limit the future exercise of legislative the people, and all free governments are power on those subjects, to the prejudice of founded on their authority, and are institut. the general welfare. In the cases of River ed for their equal protection and benefit. No Rendering Co. v. Behr, 7 Mo. App. 315, special privileges or immunities shall ever Alkers v. City and County of San Francisco, be granted by the legislature, which may not 32 Fed. 503, and City of Louisville v. Wible, be altered, revoked or repealed by the same 84 Ky. 290, 1 S. W. 605, the power of a city body; and this power shall be exercised by to make a contract with a person or corpora

no other tribunal or agency.” tion for the removal of dead animals, not This section of the bill of rights clearly slaughtered for food, from the city, and prohibits the legislature from delegating the granting to such person or corporation the power to a city to grant to any individual the exclusive privilege of using the streets of special privilege of carrying on any ordinary the city for such purposes, was upheld as a business or calling. proper police regulation. The cases of The eleventh subdivision of section 11 of Boehm v. Mayor, etc., of Baltimore, 61 Md. the act concerning cities of the first class, 239, and In re Vandine, 6 Pick. 187, merely above quoted, it will be observed, authorized uphold city ordinances requiring licenses and the city council to regulate or prohibit the regulating the business of scavengers.

construction of privy vaults and cesspools, It will be observed that the ordinance un- and to regulate and enforce the cleaning of der consideration authorizes the appointment all places where offensive matter is permitof two or more persons as scavengers. It ted to accumulate. By the third subdivision therefore places it in the power of the mayor of the same section, the mayor and council to grant to two persons a monopoly of the are authorized to levy and collect license scavengers' business within the limits of the taxes on and regulate a great number of city. While monopolies of any ordinary le- businesses and callings, including that of gitimate business are odious, we have seen scavengers. In other parts of the same secthat monopolies are upheld when deemed tion, power is given to regulate and order the necessary in executing a duty incumbent on cleaning of chimneys, to regulate the storthe city authorities or the legislature for the age of powder and other combustible and protection of the public health. It is some- explosive substances, as well as to regulate times a matter of great nicety and difficulty many other things deemed by the lawmakers to determine whether a particular business proper subjects of supervision by the city or calling is in its nature so directly con- authorities. The business of a scavenger nected with the public welfare that the per- may not be nice or attractive, but the reformance can only be safely intrusted to moval of garbage and filth is a necessary some one acting under public authority. So work, which has been ordinarily performed much of the business of the scavenger as con- through any agency the party interested sists in removing dead animals, it would might select. If the term "garbage” in

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