State v. Nixon

HUNTER, Justice,

dissenting.

I have concurred in my brother DeBruler, J.’s, dissent, but I wish also to set forth the results of my independent research which I think should be judicially expressed. It seems quite apparent that the majority opinion has resorted to a public policy reasoning under the guise of liberal constitutional interpretation.

It has long been recognized in this state that the public policy of the state is declared by the constitution and by the legislative acts, and, where these two sources are silent by the declarations of the courts. Russell v. Johnson, (1942) 220 Ind. 649 , 46 N.E.2d 219 ; Hogston v. Bell, (1916) 185 Ind. 536 , 112 N.E. 883 . Of these various sources it has been recognized that the immediate representatives of the people in the legislature are the fairest exponents of what public policy requires, as they are most familiar with the habits and fashions of the day and the actual conditions in the business community. If, in the domain of economic and social controversies, a court were, under the guise of the application of the doctrine of public policy, to interpret a statute or constitution in a way which it might consider expedient and desirable, such action would be nothing short of judicial legislation, and each such court would be creating positive laws according to the particular views and idiosyncrasies of its members. Only in the clearest cases, therefore, should a court declare a statute unconstitutional. Russell, supra; Hogston, supra; 72 C.J.S. Policy, p. 213; and numerous cases cited therein.

The majority opinion sets out many citations of authority which uphold liberal construction of constitutional provisions. This resort to such citations is completely meaningless in the manner in which they are employed and applied in the instant case. Some of these cited authorities are: California Employment Stabilization Commission v. Municipal Court, etc., (1944) Calif. Court of Appeals, 1st Dist., 62 Cal.App.2d 781 , 145 P.2d 361 ; Unemployment Reserve Commission v. St. Francis Homes Association, (1943) Calif. Court of Appeals, 1st Dist., 58 Cal.App.2d 271 , 137 P.2d 64 ; State ex rel. Jones v. Lockhart, (1953) 76 Ariz. 390 , 265 P.2d 447 ; Kirkpatrick v. King, (1949) 228 Ind. 236 , 91 N.E.2d 785 ; State v. Gibson, (1871) 36 Ind. 389, 391 ; State ex rel. Black v. Burch, (1948) 226 Ind. 445, 457 , 80 N.E.2d 294 ; State ex rel. Holt, et al. v. Denny, Mayor, et al., (1888) 118 Ind. 449, 458 , 21 N.E. 274 .

Any citations concerning liberal construction are completely unnecessary for the reason that the term “lottery” is well defined *166 and was comprehended to have a very concrete and definite meaning, i. e., the most simple definition of a lottery is: a game of chance by lot only. Thus, at the time of ratification it was so understood.

It seems apparent from our study of case law that liberal construction of constitutional provisions which are indulged in by the courts to uphold the public policy of legislation has been used in the instant case to declare pari-mutuel legislation unconstitutional.

In other words, the construction here employed in this manner could lead to capricious, mischievous, or absurd results based upon an individual judge’s notions concerning social, moral, or economic controversies. The public policy of a state must not be founded in the court’s personal views on sociological problems.

The Nebraska case, State ex rel. Sorensen v. Ak-Sar-Ben Exposition Co., (1929) 118 Neb. 851 , 226 N.W. 705 , cited by the majority is really of little guiding value in this matter. The Nebraska Constitution is more broadly worded than our Indiana Constitution and includes a prohibition against “any games of chance.” The Nebraska Supreme Court stated that since a pari-mutuel system included the concept of a pool this necessarily constituted a game of chance. This should have no effect on our interpretation of a lottery. However, even if we were to assume that the constitutional provisions were identical, a pooling, in itself, does not constitute a lottery. A lottery has no elements of individual control over outcome. The selection of a horse within the pari-mutuel system does negate the pure chance element which is basic to a lottery.

The majority opinion has also emphasized at great length the case of Commonwealth v. Kentucky Jockey Club, (1931) 238 Ky. 739 , 38 S.W.2d 987 , which makes it readily apparent that the majority is basing its decision upon public policy as the Kentucky court did for its state. This Court cannot make the Kentucky decision any more judicially palatable by declaring that it honestly faced the problem of investments by individuals and then decided by reason of the public policy that pari-mutuel betting in Kentucky was therefore constitutional.

As we have pointed out, the term “lottery” is clearly defined, and any attempt by the courts to expand the simple definition is an invasion of the legislative prerogative. The two departments of our government which are primarily charged with the responsibility of determining public policy have acted. The legislative passed the parimutuel bill; the executive vetoed it; then again evidencing its constitutional authority, the legislature overrode the governor’s veto. That should have been the end of any public policy argument concerning pari-mu-tuel.

For all the foregoing reasons I would overrule the trial court’s judgment.

DeBRULER, J., concurs.