#### Kraus, Appellee, *v.*City of Cleveland et al., Appellants.

(No. 22062

Decided December 18, 1950.)

*Mr. Myron D. Malits*and *Mr. Wm. J. Kraus,*for appellee.

*Mr. Lee C. Rowley,*director of law, and *Mr. Robert J, Selzer,*for appellants.

Skeel, P. J.

This appeal comes to this court on questions of law and fact from a judgment for the plaintiff, entered by the Common Pleas Court of Cuyahoga County.

The plaintiff in his amended petition alleges that he is a taxpayer of the city of Cleveland and brings this action on behalf of all taxpayers similarly situated, pursuant to Section 4314, General Code, and the applicable provisions of the charter of the city of Cleveland, after the law director, upon due notice, refused in writing to bring such action.

The plaintiff alleges that the city council, on or about February 9, 1944, passed ordinance No. 1316 A *50543, which became Sections 2925-11 to 2925-22 of the Municipal Code of the City of Cleveland, commonly known as the “bingo” ordinance, the purpose of which was to license the conduct of games of chance operated for charitable purposes.

The plaintiff alleges further that the commissioner of assessments and licenses of the city, acting under the authority of the bingo ordinance, has licensed about 40 bingo parlors which are now operating within the city of Cleveland.

The amended petition then describes the game of “bingo” or “keno” and concludes with the allegation that such game, as authorized by said ordinance, consists solely of a price or consideration paid by a player for the privilege of the chance of winning a prize, and that such game constitutes gambling through the operation of a lottery.

The amended petition alleges further that the bingo parlors have an annual income in excess of $4,000,000; that less than three per cent of such amount is given for charitable purposes; that the licensing of bingo games is contrary to the laws of the state and in violation of the Constitution of Ohio; that the city is without legal authoi’ity to license and legalize gambling and lotteries; that, in so doing, the commissioner of assessments and licenses has been and is expending tax funds which have been approved and paid by the city treasurer; and that unless enjoined such public expenditures will continue to be made for licensing and supervising bingo parlors.

The plaintiff then prays that the defendants be enjoined from issuing licenses and expending tax funds in carrying out the terms of said bingo ordinance, and that the court declare such ordinance void and the licenses issued thereunder void and of no legal effect.

*506The defendants filed a joint answer in which they admit all the allegations of plaintiff’s amended petition except those describing the game of bingo and that such game constitutes a lottery and deny the number of licenses issued and the income received in operating such bingo parlors and that the ordinance or licenses issued thereunder are void and of no effect and in violation of the Constitution of the state of Ohio.

The defendants then allege that the bingo ordinance was passed under the home-rule provisions of the Constitution of Ohio and is simply a regulatory ordinance imposing necessary restrictions on those licensed to conduct bingo games for charitable purposes, and that the ordinance is not in conflict with the laws or the Constitution of Ohio.

The plaintiff’s reply denies all the affirmative allegations of the defendants’ answer.

The evidence, supplemented by the facts admitted by the pleadings, establishes that bingo is a lottery and that those who conduct such games are in fact conducting a lottery in that such licensees sell the chance to win a prize for a stipulated consideration. The evidence shows also that about 40 bingo parlors have been issued licenses which purport to authorize the holder to operate a scheme of chance and contain on the face thereof the charitable enterprize for whose benefit the games are to be operated. The evidence of the commissioner of assessments and licenses shows that over $3,000,000 in gross receipts was reported by the 40 licensees during the year 1948, of which less than three per cent was given to charitable beneficiaries.

There is just one question presented and that is whether the city of Cleveland has legal authority to license the conducting of a lottery where some part of the income is set aside for a charitable purpose.

Section 6, Article XV of the Constitution of Ohio, provides:

*507“Lotteries, and the sale of lottery tickets, for any purpose whatever, shall forever be prohibited in this state.”

Prior to 1943, Section 13064, General Code, was in effect and provided as follows:

“Whoever establishes, opens, sets on foot, carries on, promotes, makes, draws or acts as ‘backer’ or ‘vender,’ for or on account of * * * a lottery * * * or scheme of chance, by whatever name, style, or title denominated * * * shall be fined not less than fifty dollars nor more than five hundred dollars and imprisoned not less than ten days nor more than ninety days. ’ ’

In 1943 this section was amended to read as follows:

“Whoever, for his own profit, establishes, opens, sets on foot, carries on, promotes, makes, draws or acts as ‘backer’ or ‘vendor’ for or on account of a lottery or scheme of chance, by whatever name, styie, or title denominated * * * shall be fined not less than fifty dollars nor more than five hundred dollars and imprisoned not less than ten days nor more than six months. ’ ’

The pertinent sections of the “bingo” ordinance are:

“Section 2925-11. Definitions: ‘Game of chance’ for the purposes of this ordinance shall mean any game, other than policy, constituting a lottery, by whatever name, style or title denoted, participated in by two or more players for any prize, gift or award of thing of value, where a charge is made, or other consideration paid by any player for the right to participate in such game and the dominating factor in determining the result of such game is chance, notwithstanding that such result may be dependent to some extent upon the judgment, intelligence or adroitness of the player.

“ ‘Charitable purpose’ shall include any charitable, *508benevolent, philanthropic, religious or fraternal purpose.”

Section 2925-12 provides that no one shall conduct such games of chance until a license is granted as provided by the ordinance.

Section 2925-13 provides in part that no license to conduct games of chance shall be issued except for charitable purposes.

Section 2925-15 provides the manner and form in which the application for a license to conduct a game of chance shall be made and the information to be contained in such application.

Section 2925-17, relative to the issuance of licenses, provides:

“After such hearing and upon receipt of the application from the director of public safety with recommendations endorsed thereon approving the same, and following public hearings before the commissioner of assessments and licenses if satisfied that the applicant is of good character, and that the premises and conditions under which the licensee is to operate meet with the sanitary, building and fire regulations, shall issue a license, notwithstanding any other provisions of the Municipal Code to the contrary, specifically Section 2978 to 2985-5, inclusive, and as an exception thereto. Each license shall contain the name of the beneficiary for whom the game is to be conducted as stated in the application, the name of the person to whom issued, the date or dates upon which said game or games is or are to be conducted and the location where conducted, and the date of expiration. The license shall not be transferable and shall be limited to the location specified therein unless otherwise authorized in writing by the commissioner of assessments and licenses for good cause shown.”

Section 2925-19 prescribes the duties of the cornmis*509sioner of assessments and licenses in supervising and enforcing the regulations for the conducting of a game of chance and the obligation of licensees to make reports, which reports shall contain the gross income of the game, the amount charged against such income for expenses, and the amount paid to the charitable beneficiary. The section provides also that games shall not be conducted except between the hours of 1:30 p. m. and 4:30 p. m. and between 7:00 p. m. and 12 p. m.

It is the conclusion of the defendants that Section 6, Article XV of the Constitution, is not self-executing; that Section 13064, General Code, provides a penalty where one “for his own profit” conducts a lottery; and that since the statutes of Ohio do not prohibit or impose a penalty for one conducting a lottery other than for his own profit, the city is empowered to license and regulate lotteries conducted for charitable purposes.

It is contended that the decision of the Supreme Court in the case of *State*v. *Parker,*150 Ohio St., 22, 80 N. E. (2d), 490, fully supports the defendants’ position that Section 6, Article XV of the Constitution of Ohio, is not self-executing and, therefore, cannot affect the validity of the bingo ordinance until legislation is enacted to prohibit and make punishable *all*lotteries or games of chance.

An examination of that case discloses that such is not the fact. The *Parker case*involved the sufficiency of the allegations of the indictment in an attempted prosecution of a defendant under Section 13064, General Code, as amended, effective September 21, 1943, which indictment failed to allege that the lotteries conducted by the defendant were conducted “for his own profit.”

In the *Parker case*the court said:

*510“An examination of various statutory provisions on the subject discloses a general legislative policy to prohibit and declare void all gambling contracts of every description, but only certain of such transactions are made punishable by fine and imprisonment of those who engage therein. There are many and various inhibitory provisions in the state Constitution for the violations of which no penalties are prescribed: such inhibitory provisions may. be implemented only by appropriate action by the General Assembly.

“It is well settled that before an act of the General Assembly, providing for the exercise of any plenary power, can be held to be unconstitutional the prohibition of such exercise must be found in express terms or be clearly inferable from the language of the Constitution. 8 Ohio Jurisprudence, page 251.

“Section 13064, General Code, is not in conflict but, so far as it goes, is in harmony with the provisions of the Constitution referred to. *It does not authorize or ■give validity to any gambling transaction.*It does impose a fine and imprisonment upon anyone who, in the capacity stated, engages in any of the transactions enumerated in that section ‘‘for his own profit. ’’ (Emphasis ours.)

That case does not hold that Section 6, Article XV of the Ohio Constitution, is not self-executing. In fact from the full context of the opinion it is clearly indicated that such section is self-executing to the extent that it discloses the public policy of the state to be that “lotteries, and the sale of lottery tickets, *for any purpose*whatsoever, shall forever be prohibited in this state.” While there can be no criminal prosecution of one who violates the provisions of Section 6, Article XV of the Constitution, with respect to acts that do not come within the provisions of Section 13064, General Code, until the Legislature provides therefor, there being no common-law crimes in Ohio, *511certainly by the same token neither the Legislature of the state nor the council of a municipal corporation has the power to authorize for any purpose, charitable or otherwise, the right to conduct a lottery or sell lottery tickets in direct conflict with such constitutional provision. Such an act or ordinance would be unconstitutional and void.

The law is clearly set forth in 1 Cooley on Constitutional Limitations (8 Ed.), at page 170, where the author says:

“In determining when a constitutional provision is self-executing, there is a distinction between a declarative limitation of legislative power on a given subject, within which legislation may or should be enacted, and positive constitutional inhibition which no legislative act can relieve or modify; the former might require future legislation; the latter must, from its nature, be self-executing * * * and the mere fact that legislation might supplement and add to or prescribe a penalty for the violation of a self-executing provision does not render such provision ineffective in the absence of such legislation.

And at page 166, note 2, *ibid.,*it is said:

“Any constitutional provision is self-executing to this extent, that everything done in violation of it is void. * * * A provision that ‘the legislature shall have no power to authorize lotteries for any purpose, and shall pass laws to prohibit the sale of lottery tickets in this state’ was held to be of itself a prohibition of lotteries. *Bass*v. *Nashville,*Meigs, 421; *Yerger*v. *Rains,*4 Humph., 259.”

, See, also, *State, ex rel. Kellogg, Atty. Genl.,*v. *Kansas Mercantile Association,*45 Kan., 351, 25 P., 984, 11 L. R. A., 430; *People*v. *McPhee,*139 Mich., 687, 103 N. W., 174, 69 L. R. A., 505; *City of Seattle*v. *Chin Let,*19 Wash., 38, 52 P., 324.

*512We conclude, therefore, that the plaintiff is entitled to the relief prayed for. A judgment may be entered as in the Common Pleas Court.

*Judgment for plaintiff.*

McNamee and Hurd, JJ., concur.