Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1883-11-18
Judge Greer's Opinion .


State vs. Haynes, ct ai.-Indictment for Gaming.
These cases are before the court on a
motion to qvash the different indictments
The defendants claim that since the
statute of March %, 1888, entitled IAN act
to regulate pool-selling, book-making and
combinations upon turf, trotting and pac
ing races, it is no longer unlawful to make
such bets in Tennessee, il done under and
by authority of Incorporated bloodhorse
associations. For the purpose of argu-
ment it is admitted that defendants sold
pools on races to be run outside of the
State, that they did so by virtue of the
authority of the New Memphis Jockey
Club, and that such club is an Incorporated
bloodhorse association.
Before the passage of the act of last
March this was gaming. Code, 1870 and
sequel sth Lea. All.
The State answers that the act in ques-
ton is in conflict with article IL, section
of the constitution, and is therefore void.
This section reads as follows: "The Leg
isature shall have no power to suspend
any general law for the benefit of any par
ticular individual, nor to pass any law for
the benefit of individuals Inconsistent with
the general laws OF the land; Nor to pass
any law granting to any individual or in
dividuals rights privileges, :..2.nunities or
exemptions, other than such as may be
by the same law, extended to any member
Of the community who may be able to
bring himself within the provisions Of
such law: a.; NO ;eorp6rafien shall be
created, or its powers increased or dimin-
ished by special laws, but the General As
ser1bly shall provide by general laws Tor
the organization of all corporations here
after created, which law iray at any time
be altered or repealed, and no such altera-
| ton or repeal shall interfere with or divest
| rights which have BECOME vested"
The act OF last March reads as follows:
| SECTION |. BE ii endcied By The General
| assembly Of the State of Tennessee, That it
shall be. unlawful Tor any person to sell
! POOLS or 10 make any betting book or COM
| hination upon any issue run, trotted or
paced in this State, or III. any other. State
| OF the United States, unless the said pool
selling, book-making or continuation be
conducted or made under and by the au-
| thority of a lawfully chartered or incorpo-
| rated blood-horse or turf association, or
| trotting association, or stock or agricul-
| tural fair association of this State, and
then only in the county in which said as
sociation or fair may be located.
Sec. 2. Be Il further enacted, That yio-
lation OF this act be and the same is hereby
declared a misdemeanor, and, upon con-
viction, the person guilty thereof shall be
fined not less than $25, nor more than $3.50.
Sec. 8. Be 1t further enacted, That any
association operating under the pro-
visions of this act shall pay an annual tax
for said privilege to the State of 500, and
the counties may collect such tax on the
same not to exceed the State tax, and il
shall be a misdemeanor to sell pools to
minors and drunken men.
Sec. 4. Be tfitrther enacted, That this act
take effect from and after its passage, the
public welfare requiring it.
The substance of this pecularly-worded
statute is to make lawful the business oi
pool-selling, etc, provided it is done un
der and by authority of a certain character
of corporation. This seems to me the only
way in which it can be read 1t follows
therefore, that an act granting to few in
dividuals privileges, immunities and ex
emptions which are not extended to eacl
individual of the community, and which
he cannot avail himself OF Is partial, and
therefore, void.
Counsel for the defendants argue tina
the old law, 1881 of the code, which pro
vides that horse racing on a licensed tract
shall be lawful, is itself partial, but it viii
be seen that any one man can make
track and procure license, whereas q
least five persons are necessary to get
charter of incorporation. 1t is also argue,
that law which taxed photographers dill
! ferent amounts, according to the size G
the town in which they lived, might b
called partial, and yet it was held not il
conflict with the provisions of the const
tuition. But the answer is that any ind
vidual, without obtaining the consent G
others, may become a photographer, an
having become such, may change his re:
! idence as he sees fit, and thus bring hin
self within the benefits of the statute.
Again, counsel say that an act provid
ing that z cotton factor shall have ier
on certain goods for five days after sale
{ similar to this, and was yet not held to b
a partial law. But again, any member {
this community may become cotton IA,
tor without the consent of others. TIL
statute did not prohibit anyone froI
having the benefit of the enactment VIII
chose to bring himself within its terms.
, 1t is also argued that an act has bee
0 held good which gave mechanics only
: certain kind of lien. But the same al
: swer is obvious, that any one may get th
/ benefit OF the law by becoming m,
;. chanic
! Finally, it is argued that the mere gram
= ing of charter for private corporatio
= to certain individuals is suspending tn
V general law for few, and yet such co
s | DOraIlODS nave Deen nelu SOOu. lnlS, i
a certain sense, is true; but | know of n
valid statute which extends to an il
corporation the sole and exclusive rigf
e to carry ON particular kind of busine.
e throughout the State.
> The defense then claims that any cit
n zen may bring himself within the act
o last March by becoming a member OF q
r. Incorporated bloOd-horse association. Bl
an examination of the act shows this
y be erroneous. The right is not given
e every member of such corporation to sc
IS pools, ETC., but Is given only to the corpo
IS alton; that is, one must sell solely by II
Z permission of the association. Hence,
A wishes to follow the business of poe
selling, etc.. he cannot do so by joinir
g the ASSOCIATION, but he must obtain a pc
N NIT from it; or he must get at least FOL
\ other persons to Join with him in pr
- curing charter. He must have at lea
four Others for not less than this numb
can get a charter of incorporation in Te
nessee. Yet the constitution says: III
Legislature shall pass no law granting
1. any individual or individuals right
p privileges, immunities or exemption
other than such as may be By the san
7 law extended to any member of the col
muniiy who may be able to bring hims(
within the provisions of such law"
u Before this act it was unlawful to e
D. gage in the business of pool-selling, ct
1T on races to be run in other States. If th
1t act is good it is now legal business. al
vet the same law which makes it SO
d clares that only favored few may enga
IT in it. Under the logic which would no
such an enactment good it might be he
O that the business OF cotton-selling or al
70 other business could be restricted
private corporations created for that pu
pose Counsel say that cotton-sellil
y is common right; that is rig
y which the law gives to every ma
5. If pool-selling, etc, is lawful, it mu
i'd also be a common right in which eve
3, man may engage. Ii it is unlawful und
S. the general law passed for the bene
of all, then any act of the Legislatu
which declares it shall be lawful for ft
at persons to engage init is hopelessly in co
fiict with section s, article IL This Sc
ton says unequivocally that each citlz
must-without the consent of his fello
Id be allowed TO bring himself within I
4, provisions and benefits of every act of t
1: Legislature. He is not required to ha
o. four others to go along with him. III
n, act makes it so. Whilst any five men m
H. procure a charter, no one man can do
o. II only corporations can engage in I