Bender v. Arundel Arena, Inc.

Hammond, C. J., delivered the opinion of the Court. McWilliams, J., dissents. The appellants are members of the Citizens Committee of Anne Arundel County, Inc., which for some years has been trying to have declared illegal commercial bingo games and coin-operated gambling devices licensed by the County Commissioners of the County under enabling statutes of the General Assembly. The Association and some of its members in December 1961 sued in the Circuit Court for Anne Arundel County to enjoin the County Commissioners from issuing licenses for the operation of slot machines, payoff pinball machines, console machines and commercial bingo, alleging that the County ordinances, and resolutions passed thereunder purporting to authorize such licenses, were unconstitutional.

The complainants contended that they had standing to sue, that the legislative enabling acts were never intended to authorize the licensing of gambling devices, that the titles of the legislative enabling acts are misleading in violation of Art. Ill, § 29, of the Constitution of Maryland, that the acts authorize lottery grants in violation of Art. Ill, § 36, of that Constitution, that the acts constitute an unlawful delegation of legislative power, and that they are invalid because they purport to be regulatory measures but actually are revenue measures. In an opinion filed in early 1963, Judge Macgill found it unnecessary to pass on the complainants’ standing to sue since he decided against them on the merits on every point. In the appeal to this Court, Citizens Committee of Anne ¹⁸⁵ Arundel County, Inc. v. County Commissioners of Anne Arundel County, 233 Md. 398 , we found that the appellants had no standing to sue and therefore found it unnecessary to consider the merits of the case. Undaunted, various members of the Association in May 1964 played bingo, electric console machines, slot machines and pinball machines at the premises of various licensees in Anne Arundel County, and as they had anticipated lost varying amounts of money.

The players thereupon sued the bingo licensees to recover $50.00 for every card they had played in reliance on Code (1957), Art. 27, § 359, found under the subtitle “Lotteries,” which provides that any person who gives money for any “lottery ticket, certificate, or any other device” by which the vendor promises that he will pay the purchaser money “on the happening of any contingency in the nature of a lottery” may recover from the person to whom he gave the money $50 for every lottery ticket he bought. Those who had lost money on the machines sued the machine licensees to recover their losses under Code (1957), Art. 27, § 243, providing that “Any person who may lose money at a gaming table may recover back the same as if it were a common debt * * *.” The total amount sued for is some several hundred thousand dollars. The defendants pleaded that they were holders of lawful and valid licenses issued by Anne Arundel County, duly entitled to conduct bingo games and maintain and offer to the public for play coin-operated gambling devices in that County, and that they never promised as alleged and were not indebted as alleged. Each side moved for a summary judgment, supporting its motion by affidavits, a stipulation as to applicable ordinances, resolutions, rules, official reports, studies and other public acts, and exhibits.

Judge Sachse gave judgment for the defendants in a thorough opinion which in all essentials agreed with that of Judge Macgill in the prior case. We think Judge Sachse was right. The appellants’ contention that the legislature has never intended to confer, nor has conferred, authority on the County Commissioners of Anne Arundel County power to license commercial gambling, but only to license “amusement” devices, falls ¹⁸⁶ ■apart when the legislative acts in question and the official and judicial views of their meaning are examined. Chapter 321 of the Laws of 1941 gave the Commissioners ■power to license “any * * * amusement device * * * whenever any such * * * amusement device is not * * * specifically prohibited from being operated therein [in Anne Arundel County], "by the Public General or Public Local Laws * * Under this ■act, if the amusement device is to be used as a gambling device it would not be licensable as the appellants contend.

However, by Ch. 321 of the Laws of 1943 the Commissioners were given the power to determine what “amusement devices” may or may not be allowed, and the further specific power to permit “any prize or award in the operation of any * * * amusement device * * * for skill or score attained.” In addition, the 1943 statute repealed, as far as Anne Arundel County is concerned, various provisions of the “Gaming” subtitle of Art. 27 of the Code, including § 244 (then 299) (“All games, devices and contrivances at which money or any other thing shall be bet or wagered shall be deemed a gaming table * * *”), § 237 (then 288) (which makes it unlawful to keep “any gambling table, or any house, vessel or place, on land or water for the purpose of gambling”), § 238 (then 289) (certain outmoded games and “any other kind of gaming table * * *, at which any game of chance shall be played for money * * *, shall be deemed a gaming table”), and § 245 (then 300) (prohibiting gambling at cards ■or dice games or “any other device or fraudulent trick whatsoever * * *”). The 1943 statute also repealed all inconsistent laws to the extent of their inconsistency. Chapter 1013 of the Laws of 1945 went further to provide that nothing in any of the sections of Art. 27 of the Code (listing them by number), codified under the subtitle “Gaming,” “shall be construed to prohibit or make unlawful the operation of any amusement, contest, meet or event, or the participation in any award or wager upon the result of any such amusement, ■contest, meet or event, operated pursuant to regulations adopted pursuant to the powers granted * * *” by the 1941, 1943 and 1945 acts repealing gaming prohibitions. The General Assembly has repeatedly shown recognition that coin-operated gambling machines and commercial bingo have ¹⁸⁷ been legalized in Anne Arundel County.

The County Commissioners have from time to time, beginning in 1943, provided for their licensing. With these local authorizations and the actual open operation of coin-operated gambling machines and commercial bingo under its very eyes, the legislature, by Ch. 625 of the Laws of 1949, authorized further exercise of local discrimination in the granting of licenses “under the authority of [the 1941, 1943 and 1945 acts] * * * (including Bingo).” The phrase as to bingo is twice repeated in the 1949 statute and is twice repeated in a similar statute, Ch. 3 of the Laws of 1954. The County resolutions and Public Local Laws licensing gambling were formally legalized by Ch. 334 of the Laws of 1957. Chapter 43 of the Laws of 1958 (Special Session) outlawed betting on “Jai Alai” in Anne Arundel County but included a savings clause for “bingo” and “slot machines.” Chapter 800 of the Laws of 1959, dealing with admissions and amusement taxes, made special provision for Anne Arundel County and said that “Bingo” is not to be considered an amusement device.

In 1962 Governor Tawes appointed the Emory Committee to study legalized slot machines and commercial bingo and recommend procedures to eliminate the machines with the least possible damage to the economy of the counties in which they were legal. The Committee’s report refers to the fact that in Anne Arundel, Calvert, Charles and St. Mary’s Counties gambling by means of slot machines had been legalized and that there were nine lawful commercial bingo operations in Anne Arundel County, saying that “it would seem inconsistent to abolish legalized gambling by machines and retain legalized gambling by commercial bingo establishments.” By Ch. 617 of the Laws of 1963 the legislature passed a law to phase out slot machines over a period of years in the four counties but did nothing as to commercial bingo in Anne Arundel County. Judge Macgill’s opinion that gambling had been legalized in Anne Arundel County was shared by Judge Chesnut, who said in 1952 in Smith v. McGrath (D. Md.), 103 E. Supp. 286, 288, in referring to “machines and devices for the amusement” of patrons of the plaintiffs, the “operation of all gambling devices possessed by the plaintiffs are lawful in * * * Anne Arundel ¹⁸⁸ * * In McGowan v. State, 220 Md. 117, 124 , which upheld the repeal of the Sunday blue laws as to places of amusement in Anne Arundel County, the Court referred to “slot machines, pinball machines, and bingo games,” and said: “What is permitted all comes within the category of recreation.” In affirming, the Supreme Court in McGowan v. Maryland, 366 U. S. 420, 426 , 6 L. Ed. 2d 393, 399 , said: “some people will prefer alcoholic beverages or games of chance to add to their relaxation * * *." It seems clear that the legalization of some forms of gambling in Anne Arundel County had the effect of disallowing any civil recoveries against the gambling establishments there licensed. The 1943 Act did not expressly repeal § 243 (then 298) of Art. 27 which allows a gambling loser to recover his losses but it did repeal all inconsistent laws, and the 1945 Act provided that nothing in §§ 237 to 246, inclusive, (then 288 to 301) of Art. 27, subtitle “Gaming,” shall “prohibit or make unlawful * * * the operation of any amusement, contest, meet or event, or the participation in any award or wager upon the result [thereof] * * Gambling, unless it became a public nuisance, and gaming contracts were lawful at common law.

In LaFontaine v. Wilson, 185 Md. 673, 678 , the Court said : “by the Statutes of Charles [16 Car. 2 Cap. 7 in 2 Alexander’s British Statutes (Coe’s ed. 1912 p. 643)] and Anne-[9 Ann. Cap. 14, 2 Alexander, supra p. 932] certain forms of wagering were made illegal [although not criminal], and recovery by a winner was denied.” The Statutes of Charles provided for recovery of damages trebling the amount lost in excess of 100 pounds (one-half to go to the Crown), in a civil suit by a loser in a fraudulent game. The Statutes of Anne voided notes given for gambling debts and ^provided for treble damage suits :for losses in excess of 10 pounds. Section 243 of Art. 27 is a similar statute by which “certain forms of wagering were made illegal.” To permit a civil recovery for gambling losses is legislative recognition that the gambling which produced the loss was illegal. It would not only be futile, it would be a contradiction in terms to say that a wager ¹⁸⁹ lawfully could be made but if the licensed gambling establishment won the wager it could not keep the stake.

The legislature must be deemed to have made § 243 of Art. 27 of the Code unavailable to one who gambles in Anne Arundel County at a licensed gambling establishment. The appellants say that even if this be so, and even though they sued in this case to recover their losses on gambling machines under the provisions of § 243, that both the machines and bingo are lotteries and, therefore, they can recover $50 under § 359 of Art. 27 for every coin they put in a machine and for every bingo card they played because there has been no legislative repeal of § 359 or of any other statute under the “Lotteries” subtitle of Art. 27. The answer to this argument seems simple and plain. The legislature has always considered the forms of gambling it permitted to be made legal in Anne Arundel County to be gambling games or in the nature of a gaming table, within the purview of the proscriptions of the provisions of the Code grouped under the subtitle of Art. 27 entitled “Gaming,” and has never considered those forms of gambling to be schemes in the nature of a lottery prohibited by or within the purview of the provisions of the Code grouped under the subtitle of Art. 27 entitled “Lotteries.” Most states have held coin-operated gambling machines and bingo to be lotteries, finding that they combine the classic elements of a lottery of consideration, chance and prize.

These states take the view that their constitutional and legislative provisions use the term “lottery” in its generic sense; other states have given the term a more restricted, precise and technical meaning. Maryland would seem always to have chosen the latter course, and to have drawn a definitive distinction between games of chance and schemes of lottery. In essentially the same form as they now are, the “Gaming” laws (§§ 237 to 246 of Art. 27) and the “Lottery” laws (§§ 356 to 371 of Art. 27) have been on the books since long before the first Code, that of 1860. Officials and courts in Maryland appear to have considered (a) that the lottery laws covered schemes for awarding a prize by lot or chance in which the only direct or personal participation by the seeker of the prize ¹⁹⁰ is his purchase of a ticket or its equivalent; and (b) that the gaming laws covered gambling by games of chance or gaming tables, as broadly defined (even though skill plays no part), in which the player participates personally and directly and is present when the game ends and the result becomes known.

In Smith v. State, 68 Md. 168 , evidence of sales of pieces of paper, commonly known as “policies” entitling the holder to receive a specified sum if certain numbers later were drawn, was held to be relevant evidence in a lottery prosecution. Boyland v. State, 69 Md. 511, involved a similar indictment. The tickets sold were headed “Horse Combination”