Bl. Comm. 168. In general, the words "gaming" and "gambling" in statutes are similar in meaning, and either one comprehends the idea that by a bet, by chance, or by the transpiring of some event unknown until it occurs, something of value is, as the conclusion of premises, agreed to be transferred from a loser to a winner. Bish. St. Crimes, § 858; Black, Law Dict. 530. The word "gambling" is conclusive of hazarding as well as playing. Bennett v. State, 2 Yerg. 474. A lottery is defined as "a hazard in which sums are ventured for a chance of obtaining a greater value." Both gambling and lotteries were nuisances in the eyes of the common law. They are generally prohibited as being detrimental to the public, as promoting unlawful schemes, cheating, and other corrupt practices. The buying and selling of lottery tickets is a species of gaming, and within the inhibition of the act. In State v. Association, supra, our attention was not called to section 368 of the Criminal Code. In referring in that case to the absence of any statute providing punishment for persons carrying on lotteries, we had in mind the failure of the legislature to impose penalties by a positive statute to carry into force and give effect to section 3 of article 15 of the constitution. The words "without any visible means of support" do not limit or qualify the subsequent provisions of the statute, and therefore they were properly omitted from the allegations of the information. The prisoner will be remanded. All the justices concurring.

(54 Kan. 711)

DAVENPORT v. CITY OF OTTAWA. (Supreme Court of Kansas. March 9, 1895.) LOTTERY-WHAT CONSTITUTES-PRIZES TO STIMULATE TRADE.

The defendant was a partner in the firm of D.. L. & Co., operating a large dry-goods store in the city of Ottawa. Said firm placed in its window a locked box, with a glass front, containing $25 in bills, and advertised that all persons buying goods in their store, and paying therefor 50 cents or more, would be given a key, and one and only one key would be given out which would unlock the box; that the person receiving the key which would unlock the box would be given the $25 from it. The defendant sold goods at the usual and ordinary prices, without extra charge on account of said key, to divers persons, for 50 cents and more, and gave to each of said persons a key, to which was attached a card stating, in substance, the above offer. Held, that such transactions were in effect sales of merchandise and lottery tickets for an aggregate price, and that a conviction therefor under a city ordinance was right.

(Syllabus by the Court.)

Appeal from district court, Franklin county; A. W. Benson, Judge.

William Davenport was convicted of maintaining a lottery, and appeals. Affirmed.

The defendant, William Davenport, was arrested and brought before the police court of the city of Ottawa, charged with having

permitted gambling to be carried on in a store kept by him in Ottawa, and with haying offered for sale and sold lottery tickets. He was found guilty by the police judge, and fined five dollars on each of the two counts in the information. From this conviction he appealed to the district court, where a jury was waived, and the cause submitted to the court on the following agreed statement of facts: "First. At all times hereinafter mentioned the defendant was and is a partner in the firm of Davenport, Lathrop & Co., which firm is now and for several years last past has been operating a dry-goods store in good faith at No. 228 S. Main St., Ottawa, Franklin county, Kansas; that they have now, and at all times have had, a large and first-class stock of dry goods, of the value of more than $10,000, and that they had in connection with said stock a good stock of millinery goods. Second. Said firm, some days prior to October 19, 1894, placed in its window a box about 18 inches long by 8 inches wide, with a glass front, in which box said firm placed, so that the same could be seen, $25 in U. S. bills. The said box is and was locked. The said firm then advertised and offered to the public that all persons buying goods in their store to the amount of fifty cents or more, and paying for the same, would be given a small iron key, and that the person getting the key that opened said box would receive the $25, there being but one key given, or to be given, out that would in fact unlock said box, and that no member 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 to unlock said box therewith at any time between December 26 and 31, 1894. Third. That on October 19, 1894, defendant sold to sundry persons dry goods out of said store for 50 cents and more, and received the pay therefor, and that upon selling said goods and receiving such pay he gave to such customers keys, that they might at the proper time try to unlock said box. That to each of said keys was attached a cord, having printed thereon as follows: '$25.00 Free. In United States Notes. $25.00 Free. We have placed in our window a glass money box containing $25 in U. S. notes. We will give a key to every purchaser of 50 cts. or more. One key only will unlock the box. This may be the one. Keys may be tried any time between December 26 to 31, inclusive, 1894. Every one holding a key will be permitted to try and unlock the box, and the person holding the key that will unlock the box will be presented with the contents, $25.00, absolutely free, without restrictions or reserve. Keys will not be noticed unless attached to the original tag. No employé allowed to have any keys. Davenport, Lathrop & Co., Ottawa, Kansas. Price House. (Read the other side.) $25.00 Free. $25.00 Free. Davenport, Lathrop & Co.

One

stands alone. No matter how low goods are priced elsewhere, you can always buy them cheaper of Davenport, Lathrop & Co. Visit our store, and get a key that may be worth $25.00 to you. After trying keys, please leave them at the store. (Read the other side.)' Fourth. At the time defendant delivered said keys and cards to said customers he did not know whether said keys, or either of them, would unlock said box. Fifth. The said firm and said defendant made no extra charge by reason of said keys, but sold the goods in the usual way, at the same price that such character of goods had been and was being by said firm and other merchants sold in the market in said city, at and prior to the time that said firm began giving out said keys. The said firm made no charge, directly or indirectly, for said keys, or for the privilege to which the holders of said keys were entitled, unless the purchase and payment of said goods be construed to be a charge."

The sections of the ordinance on which the prosecution was based are as follows:

"Sec. 40. It shall be unlawful for any person or persons to sell or offer for sale, in the city of Ottawa, Kansas, any lottery ticket or part thereof, or to print and publish in said city any advertisement of any lottery or of the sale of any ticket or part thereof in any lottery. Any person who shall do any of the acts declared unlawful in this section shall upon conviction thereof in the police court be fined in any sum not exceeding one hundred dollars or by imprisonment in the city prison not exceeding ninety days, or by both such fine and imprisonment."

"Art. II, sec. 13. It shall be unlawful for any person or persons to set up, open, keep or maintain any gaming or gambling house in the city of Ottawa, or lease or let any house or other building for the purpose of setting up or keeping therein gaming or gambling devices, or permit any description of gambling or playing any game of chance for money, goods or other valuable thing in any dwelling house, store, booth, tent, shop or other tenement building or place used, owned or occupied by any such person and any person who shall be guilty of any act declared unlawful in this section shall on conviction be fined in any sum not exceeding one hundred dollars."

The district court also found the defendant guilty, and assessed the same punishment. From this judgment the defendant appeals.

Smart & Muesse, for appellant. H. A. Richards, for appellee.

ALLEN, J. (after stating the facts). The only question presented for our consideration by the record in this case is whether the defendant sold lottery tickets. Counsel for appellant contend that there are two indispensable elements in the offense: "(1) A pe

cuniary consideration paid; (2) a determination by chance what and how much he who pays money is to have for it." It is urged that the agreed facts show that the defendant was a merchant conducting a legitimate business, with a large stock of general merchandise, which he sold for the usual and ordinary prices, and that the scheme of giving the money in the box to whomsoever should chance to get the key that would unlock the box was merely in the nature of an advertisement to draw attention and custom to the defendant's store; that, inasmuch as the defendant received no more in any instance for his goods than their fair and usual market value, no compensation was paid for the chance, but that the keys to the box and the chance to obtain a prize were a free gift to his customers, which he had a perfect right to offer. This argument, while plausible, is not sound. The defendant advertised his goods for sale. At the same time he advertised that to every purchaser of goods to the value of 50 cents or more, paying in cash therefor, a key would be given, and that the person receiving the key which would unlock the box should receive the $25 as a free gift. Each sale, then, was a sale, not of the goods, but of a chance to obtain $25. In this instance, it may be conceded that the main purpose of the defendant was to increase his legitimate business by this scheme, and that the sale of merchandise was not used merely as a cover for conducting a lottery. The purpose of the defendant undoubtedly was to attract attention and stimulate trade at his store; but this case must be determined by the legal principles applicable to it. Suppose that instead of a large stock of general merchandise, on which only moderate profits are made, the defendant kept only such articles as usually bear a very high percentage of profit, and instead of offering $25 had offered $1,000, on precisely the same terms as this $25 was offered, could any one doubt for a moment that those who are inclined to invest small sums for the purpose of gaining large ones would be likely to purchase articles for which they had no special need, merely with the hope of gaining the prize offered? Though the goods in such a case should be sold only at the regular retail price, the main business of the defendant would become that of selling chances to draw the $1,000, rather than merchandise for a legitimate profit. The key, with the card attached, was in substance and effect a lottery ticket. Purchasers were given to understand, whether truthfully or not does not affect the case, that one key, and one only, of those given out, would unlock the box, and that whoever chanced to get the proper key would get the money. It is said that no element of chance existed, because the right of the purchaser to obtain a prize was in fact absolutely determined the instant he received the key. If the key fitted the lock, the money was his from that instant. If it

did not, it was not his. This contention is not sound, though specious. Neither buyer nor seller was supposed to know which was the true key to the box, and the fact would only be actually determined when the trial was made at the time appointed to unlock the box. But, even if we assume that the chance was determined when the sale was made, it would be equally a lottery, for the fortunate person would at once obtain a right to the prize, though he could not in fact get it until the time appointed. The unfortunate purchaser would at once receive his merchandise and his blank in the lottery. No sound distinction exists between the principle involved in this case and that in the case of State v. Mercantile Ass'n, 45 Kan. 351, 25 Pac. 984. The case of State v. Mumford, 73 Mo. 617, is also directly in point. Prizes were offered to subscribers to the Kansas City Times, each subscriber receiving a ticket entitling him to participate in a drawing of prizes, and no extra charge above the ordinary subscription price being made. The supreme court of Missouri held this a lottery, and that subscribers to the newspaper bought at the same time, and for one and the same consideration, the newspaper and the ticket in the lottery. So, in this case, the purchaser, for one undivided price, bought merchandise and a ticket in the scheme which was to determine who should have the prize. These views are also upheld in the case of Hudelson v. State, 94 Ind. 426; U. S. v. Zeisler, 30 Fed. 499; Bell v. State, 5 Sneed, 507; Thomas v. People, 59 Ill. 160. Judgment affirmed. tices concurring.

(54 Kan. 757)

In re LOWE.

All the jus

(Supreme Court of Kansas. March 9, 1895.) VALIDITY OF ORDINANCE-CREATION OF MONOPOLY

-CITY SCAVENGERS.

Ordinance No. 1718 of the city of Topeka, entitled "An ordinance providing for city scavengers, prescribing the duties and regulations governing the same, providing a license therefor, fixing the fees to be charged, penalties for violating rules and regulations thereof, and repealing ordinance No. 694, published June 3d, 1887, and ordinance No. 983, published July 19th, 1889," as amended by ordinance No. 1744, attempts to authorize the creation of a monopoly of a lawful calling, is in restraint of trade, and void.

(Syllabus by the Court.)

Petition by M. E. Lowe for a writ of habeas corpus. Petitioner discharged.

On the 12th day of September, 1894, there was filed in the police court in the city of Topeka a duly-verified complaint against M. E. Lowe, charging that on the 11th day of September, 1894, and prior thereto, he did then and there unlawfully engage in the business of a city scavenger, contrary to the ordinances of the city of Topeka, and especially in violation of ordinance No. 1718, being an ordinance entitled "An ordinance providing for scavengers," etc., and of ordi

nances amendatory thereto. On the 13th of September, 1894, upon the written complaint filed against him, a warrant was issued by the police judge of the city to the chief of police, directing him to arrest M. E. Lowe, and bring him before the police judge, to be dealt with according to law. On the 20th of September, 1894, M. E. Lowe presented his petition to one of the justices of this court for a writ of habeas corpus. His petition, omitting caption, exhibits, and verification, was as follows: "The petition of M. E. Lowe respectfully shows: That he is unlawfully imprisoned, detained, confined, and restrained of his liberty by H. C. Lindsey, chief of police of the city of Topeka, and Ed. Woodruff, keeper and jailer of the city prison of said city, in Shawnee county, in this state, at the city jail in the city of Topeka, in the county of Shawnee, Kansas. That the imprisonment, detention, confinement, and restraint are illegal, and that the illegality thereof consists in this, to wit: That the only pretext or cause of such arrest and detention is by virtue of a warrant of arrest issued out of the police court of the said city, upon a complaint charging the petitioner with the alleged violation of a pretended ordinance of the city of Topeka, No. 1718, copies of which warrant, complaint, and ordinance are hereto attached, marked Exhibits 'A,' 'B,' & 'C,' respectively; and that the said pretended ordinance is null and void, in this, to wit: In attempting to create the office of city scavenger, for which there is no authority of law, and in giving the mayor authority to appoint a city scavenger, which is not provided for by law; in attempting to absolutely prohibit any person or persons from engaging in the business of a scavenger unless appointed by the mayor and approved by the council; in attempting to break up the business of this petitioner, in which he has invested a large sum of money, and has been engaged in for several years; and for the further reason the ordinance is in derogation of the vested rights of this petitioner, under a contract entered into between himself and the city of Topeka in May of 1893, and which is now existing in full force and effect, a copy of which contract is hereto attached, marked Exhibit 'D,' and made a part of this petition. Wherefore your petitioner prays that a writ of habeas corpus may be granted, directed to the said H. C. Lindsey and Ed. Woodruff, commanding them to have the body of this petitioner before the supreme court, at a time and place therein to be specified, to do and receive what shall then and there be considered by your honors concerning him, together with the time and cause of this detention and said writ; and that your petitioner may be restored to his liberty. M. E. Lowe. J. S. Ensminger, Atty. for Petitioner."

Section 1 of ordinance No. 1718, as amended by ordinance 1744, referred to in the petition as Exhibit "C," reads:

"Section 1. That section one of ordinance number 1718 be, and the same is hereby, amended so as to read: 'Section one. The mayor shall at the regular meeting in May of each year, by and with the consent of the council, appoint two or more suitable persons, corporations or firms to act as city scavengers for the ensuing year, or who shall hold said position during the pleasure of the mayor and council. A license shall be issued to such persons, corporation or firm in which shall be written or printed the name of the person to whom issued, the date thereof and the time when the same shall expire; and all licenses issued to city scavengers shall expire on the first day of May next after the same are issued unless sooner canceled by order of the mayor and council, and all licenses to city scavengers shall be signed by the city clerk, and attested with the seal of the city. No license shall be issued to scavengers until all the requirements of this ordinance shall have been complied with: provided, however, that it shall be the duty of the mayor, by and with the consent of the council, to appoint two or more suitable persons, corporations or firms to act as city scavenger until the regular meeting in May, 1895, or to fill a vacancy or vacancies whenever the same shall occur before or after time, in the same manner as appointing for a full term.'"

Section 4 provides, among other things: "It shall be the duty of the city scavenger to remove the contents of privy vaults and cesspools, dead animals, garbage and offal, when directed by the city board of health or the mayor and council, and the contents of privy vaults and cesspools, when notified by citizens in the manner hereinafter specified. Citizens may notify said city scavenger, verbally or in writing, of any cesspool or privy vault he or they may desire to have emptied, and shall tender therewith to said city scavenger the fee for such services as herein specified."

Section 6 contains the following provisions: "It shall be unlawful for any person to engage in the business of a scavenger in the city of Topeka without procuring a license therefor in the manner herein provided, and any person, corporation or firm who shall so engage in such business shall be deemed guilty of a misdemeanor, and upon being found guilty of said offense shall be fined in any sum not less than five dollars nor more than fifty dollars for each offense."

Subsequently a writ of habeas corpus was issued, and a return made attempting to justify the arrest and imprisonment of the petitioner under the provisions of the city ordinance No. 1718, providing for city scavengers. The case was heard before the court at the October sitting for 1894.

J. S. Ensminger, for petitioner. D. C. Tillotson, for respondent.

ALLEN, J. (after stating the facts). The

only question in this case requiring consideration is as to the validity of ordinance No. 1718, providing for the appointment of city scavengers. By the terms of the ordinance as amended by ordinance 1744, it is made the duty of the mayor, with the consent of the council, to appoint two or more suitable persons to act as city scavengers. The duties of the scavengers are prescribed at some length, and include a removal of the contents of privy vaults and cesspools, dead animals, garbage, and offal. The ordinance fixes the compensation to be paid by private persons for the cleaning of privy vaults and cesspools, and for the removal of dead animals, but not for any other scavenger work. By section 6 it is rendered unlawful for any person to engage in the business of a scavenger without having a license as prescribed by the ordinance, and a penalty is imposed for a violation of the ordinance. The right of the city council to pass this ordinance is claimed under subdivision 11 of section 11 of the act to incorporate and regulate cities of the first class, being chapter 18 of the General Statutes of 1889, which provides that the mayor and council shall have power "(11) to make regulations to secure the general health of the city, to prevent and remove nuisances, to regulate or prohibit the construction of privy vaults and cesspools, and to regulate or suppress those already constructed, to compel and regulate the connection of all property with sewers, to suppress hog pens, slaughter houses and stock yards, or to regulate the same, and prescribe and enforce regulations for cleaning and keeping the same in order, and the cleaning and keeping in order all warehouses, stables, alleys, yards, private ways, out houses and other places where offensive matter is kept, or permitted to accumulate, and to compel and regulate the removal of garbage and filth beyond the limits of the city."

It is said that the ordinance is a reasonable regulation, enacted for the preservation of the health of the people of the city; that, of necessity, a large measure of discretion is reposed in the mayor and council in selecting the means necessary to preserve the health of the inhabitants; and that in enacting this ordinance the mayor and council have kept within the limits of their powers. That accumulations of filth, decaying carcasses, fermenting garbage, are not only offensive to the senses, but endanger the health of the community, must be conceded. It. must also be admitted that the legislature may properly delegate to the mayor and council the power to make all necessary regulations for preserving the cleanliness of the city, and to prevent the accumulation of nuisances. This was the subject under consideration when the provision last quoted was incorporated in the statute. Have the mayor and council exceeded the limits of their authority? In support of the validity of the ordinance, Slaughterhouse Cases, 16 Wall.

36, are cited. In these cases the act of the legislature of Louisiana granting a corporation the exclusive right to maintain slaughterhouses in the parishes of Orleans, Jefferson, and St. Bernard, and prohibiting all oth

er

persons from maintaining and using slaughterhouses within those limits, was upheld, the chief justice and three of the associate justices dissenting. In the case of Butchers' Union Slaughterhouse Co. v. Crescent City Live-Stock Landing Co., 111 U. S. 746, 4 Sup. Ct. 652, it was held that the exclusive privilege given to the slaughterhouse company for the term of 25 years by the act under consideration in the case first cited was not binding on the lawmaking power for that period, but that, under the provisions of the new constitution, the legislature, in the exercise of its police power on subjects affecting public health, might make other and different provisions and regulations, which would have the effect to deprive the company of its monopoly under the charter. The decision was placed on the ground that the power of a state legislature to make a contract of such a character that, under the provisions of the constitution of the United States, it cannot be modified or abrogated, does not extend to subjects affecting public health or public morals, so as to limit the future exercise of legislative power on those subjects, to the prejudice of the general welfare. In the cases of River Rendering Co. v. Behr, 7 Mo. App. 345, Alkers v. City and County of San Francisco, 32 Fed. 503, and City of Louisville v. Wible, 84 Ky. 290, 1 S. W. 605, the power of a city to make a contract with a person or corporation for the removal of dead animals, not slaughtered for food, from the city, and granting to such person or corporation the exclusive privilege of using the streets of the city for such purposes, was upheld as a proper police regulation. The cases of Boehm v. Mayor, etc., of Baltimore, 61 Md. 259, and In re Vandine, 6 Pick. 187, merely uphold city ordinances requiring licenses and regulating the business of scavengers.

It will be observed that the ordinance under consideration authorizes the appointment of two or more persons as scavengers. It therefore places it in the power of the mayor to grant to two persons a monopoly of the scavengers' business within the limits of the city. While monopolies of any ordinary legitimate business are odious, we have seen that monopolies are upheld when deemed necessary in executing a duty incumbent on the city authorities or the legislature for the protection of the public health. It is sometimes a matter of great nicety and difficulty to determine whether a particular business or calling is in its nature so directly connected with the public welfare that the performance can only be safely intrusted to some one acting under public authority. So much of the business of the scavenger as consists in removing dead animals, it would

seem, under the authorities, may properly be regarded as a public function, for the discharge of which a monopoly may be created. But this ordinance goes further, and gives to the scavengers the exclusive privilege, also, of cleaning privy vaults and cesspools, and of removing garbage, not only from the streets, but from the private premises of the citizens. By its terms, it would prohibit the owners from performing these services for themselves, or from employing any one else than the persons appointed. It not only makes a monopoly of the cleaning of vaults and cesspools, which are necessarily offensive to the senses, but it also includes the removal of garbage. It would be somewhat difficult to say just what is included in the term "garbage." Webster defines it as "properly that which is purged, or cleansed away; the bowels of an animal; refuse parts of flesh; offal; hence the refuse animal and vegetable matter from a kitchen." It will be observed that the monopoly under consideration is not one granted directly by the legislature, as in the case first cited, but by a city council, claiming to act under legislative authority.

Section 2 of the bill of rights in the constitution of this state reads as follows:

"Sec. 2. All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency."

This section of the bill of rights clearly prohibits the legislature from delegating the power to a city to grant to any individual the special privilege of carrying on any ordinary business or calling.

The eleventh subdivision of section 11 of the act concerning cities of the first class, above quoted, it will be observed, authorizes the city council to regulate or prohibit the construction of privy vaults and cesspools, and to regulate and enforce the cleaning of all places where offensive matter is permitted to accumulate. By the third subdivision of the same section, the mayor and council are authorized to levy and collect license taxes on and regulate a great number of businesses and callings, including that of scavengers. In other parts of the same section, power is given to regulate and order the cleaning of chimneys, to regulate the storage of powder and other combustible and explosive substances, as well as to regulate many other things deemed by the lawmakers proper subjects of supervision by the city authorities. The business of a scavenger may not be nice or attractive, but the removal of garbage and filth is a necessary work, which has been ordinarily performed through any agency the party interested might select. If the term "garbage" in