By the Constitution of Kentucky of 1891, it is provided that
"lotteries and gift enterprises are forbidden, and no privileges
shall be granted for such purposes, and none shall be exercised,
and no schemes for similar purposes shall be allowed. The General
Assembly shall enforce this act by proper penalties. All lottery
privileges or charters heretofore granted are revoked."
Held:
(1) That the provision when applied to a previously existing
lottery grant in the State of Kentucky was not inconsistent with
the contract clause of the Constitution of the United States.
Page 168 U. S. 489
(2) That a lottery grant is not, in any sense, a contract within
the meaning of the Constitution, but is simply a gratuity and
license, which the state, under its police powers and for the
protection of the public morals, may at any time revoke, and forbid
the further conduct of the lottery, and that no right acquired
during the life of the grant, on the faith of or by agreement with
the grantee, can be exercised after the revocation of the grant and
the forbidding of the lottery if its exercise involves a
continuance of such lottery.
(3) That all rights acquired on the faith of a lottery grant
must be deemed to have been acquired subject to the power of the
state to the extent just indicated; nevertheless, rights acquired
under a lottery grant, consistently with existing law, and which
may be exercised and enjoyed without conducting a lottery forbidden
by the state are, of course, not affected, and could not be
affected, by the revocation of such grant.
(4) That this Court, when reviewing the final judgment of a
state court upholding a state enactment alleged to be in violation
of the contract clause of the Constitution, possesses paramount
authority to determine for itself the existence or nonexistence of
the contract set up, and whether its obligation has been impaired
by the state enactment.
The case is stated in the opinion.
MR. JUSTICE HARLAN delivered the opinion of the Court.
By section 226 of the Constitution of Kentucky of 1891, it is
provided that:
"Lotteries and gift enterprises are forbidden, and no privileges
shall be granted for such purposes, and none shall be exercised,
and no schemes for similar purposes shall be allowed. The General
Assembly shall enforce this section by proper penalties. All
lottery privileges or charters heretofore granted are revoked."
By joint resolution of the General Assembly passed January 30,
1892, the Attorney General of that commonwealth
Page 168 U. S. 490
was directed, in execution of this constitutional provision, to
immediately institute and prosecute such legal proceedings as might
be necessary to suppress or revoke all lotteries or lottery
franchises, privileges, or charters operated in Kentucky.
In conformity with that resolution, the present action was
instituted in the Louisville Law and Equity Court. The petition
charged that the defendants were exercising in the City of
Louisville, Kentucky, and elsewhere, without lawful warrant, the
right, privilege, and franchise to operate a lottery. The relief
asked was a judgment preventing the exercise by the defendants of
such lottery franchise.
The defendant Douglas in his answer set out numerous acts of
legislation under the authority of which he claimed the right to
conduct the lottery in question. He insisted that the statutory and
constitutional provisions invoked in support of the action were
repugnant to the clause of the Constitution of the United States
prohibiting any state from passing a law impairing the obligation
of contracts.
The defense was sustained by the court of original jurisdiction,
which overruled a demurrer to the answer, and, the commonwealth
having declined to plead further, its petition was dismissed. That
judgment was reversed by the Court of Appeals of Kentucky, and the
validity of the above constitutional provision relating to
lotteries, and as applied to the defendant's claim of a lottery
privilege, was adjudged not to be repugnant to the Constitution of
the United States.
The case is here upon writ of error sued out by Douglas, who
claims that, by the final judgment of the highest court of
Kentucky, he has been denied a right and immunity secured to him by
the Constitution of the United States.
It appears that, under authority conferred by various
legislative enactments, which need not be specially set forth, the
Mayor and Board of Councilmen of the City of Frankfort, a municipal
corporation of Kentucky, made December 31, 1875, a written
agreement with one E. S. Stewart whereby that city sold, conveyed,
and assigned to him a scheme of lottery, composed of 30,900
classes, which it had devised, not more than two of which were to
be drawn on each day, Sundays excepted,
Page 168 U. S. 491
until the whole number should have been fully drawn, Stewart to
have the right to control and operate such scheme in accordance
with the provisions of the acts under which the city proceeded. The
agreement provided that, in consideration of the above sale,
assignment, and transfer, Stewart should pay to the City of
Frankfort various sums of money at stated times. As required by the
agreement, and in conformity with the acts of assembly, he executed
to the commonwealth a bond in the penal sum of $100,000,
conditioned for a faithful compliance with the provisions of those
acts, and for the payment of all sums stipulated to be paid to the
City on Frankfort, as well as all prizes drawn in any class under
said lottery scheme.
By an Act approved March 22, 1890, the General Assembly of
Kentucky repealed the charter of the Frankfort lottery. Acts Ky.
1889-90, vol. 1, pp. 42, 43. But Stewart had died before the
passage of that act, and by contract with his wife, as sole legatee
and devisee of his estate, Douglas acquired the right to operate
the lottery scheme that had been acquired by Stewart.
It is stated in the answer -- and, as this case was determined
upon demurrer to the answer, it must be assumed in the present
action to be true -- that Stewart and Douglas fully complied with
all the provisions of the above contract, paid all installments due
the City of Frankfort as the same became payable, fully performed
every condition of his contract and bond, and were ready and
willing to carry out the same according to the terms, stipulations,
and covenants thereof.
The answer further averred that on the 11th day of September,
1878, the Court of Appeals of Kentucky, in the case of
Webb v.
Kentucky, brought to enjoin the exercise of the privileges of
a lottery grant, adjudged that the sale of a lottery franchise
under the authority of the state vested in the vendee a property
right to conduct such lottery in accordance with the terms of his
contract, which could not be repealed by the legislature of the
state, and held section 6 of article 21, c. 28, of the Revised
Statutes, attempting such repeal, to be void, so far as it affected
the
Page 168 U. S. 492
rights of the purchaser under a contract made before the passage
of the act.
The answer also contained the following averments:
"Defendant says that he has a vested right to conduct the
lottery business by drawing the classes contained in the scheme
which the City of Frankfort sold and conveyed to E. S. Stewart
under the terms, conditions, and covenants of the contract of
December 31, 1875, executed and delivered as aforesaid, and that
there has never been at any time more than two classes in said
scheme drawn in one day, and there are a large number of classes in
said scheme yet to be drawn; that his said right under his said
contract was authorized and approved by the Commonwealth of
Kentucky, repeatedly adjudged valid by the judicial tribunals of
this state, and such right has always been held by the courts of
this state inviolable, and not subject to repeal, alteration, or
modification by subsequent legislatures. Defendant says that he has
paid large sums of money for said scheme devised as aforesaid, and
said contract, and has made contracts and incurred liabilities
involving large sums of money upon the faith of said contract, and
relying upon the terms thereof, and upon the decisions of the
courts of the state adjudging said contract to be valid,
obligatory, and inviolable."
In support of the contention that the contracts for the purchase
of the lottery scheme in question were valid and irrepealable, the
defendant in his answer referred to an act of the General Assembly
approved May 17, 1886, declaring that
"every corporation or person to whom a lottery franchise has
been granted by the General Assembly of this commonwealth, and
which franchise has been declared by a judgment of the Court of
Appeals to be a lawful and existing one, or the lawful grantee,
alienee, legatee or assignee of such franchise, shall be authorized
to operate and conduct a lottery in this commonwealth when he, she,
or it shall have filed with the auditor of public accounts a
certified copy of the judgment rendered, and the opinion delivered
by the Court of Appeals in a case heard and determined before it,
in which it has determined that a lottery could be lawfully
operated under said
Page 168 U. S. 493
grant from the General Assembly of this commonwealth, and obtain
from the said auditor a license (which is hereby authorized and
directed to issue on the filing of said copies hereinbefore
required), reciting the filing of said copies, and authorizing the
operation of said lottery for one year from the date thereof, on
the condition that said licensee shall, within five days
thereafter, pay to the said auditor of the state the sum of $2,000,
and said license issued by said auditor, as hereinbefore directed,
and any and all renewals thereof, as hereinafter provided for,
shall be conclusive evidence in all the courts of this commonwealth
of the rights of the licensee to operate a lottery for the period
therein named,"
etc.
Under that statute, the defendant obtained a license from the
auditor of public accounts, from year to year, and paid to the
state $2,000 annually every year since the passage of that act.
The answer also stated:
"And the General Assembly of Kentucky, further recognizing the
property rights of this defendant under his said contract, by an
Act of the General Assembly of the state approved May 12, 1884,
enacted that the General Council of the City of Louisville should
be ordinance provide for the payment of $200 per annum for every
lottery office, or agency therefor, in the City of Louisville,
which ordinance was accordingly passed by the General Council of
the City of Louisville, and is now a valid and existing law, and
this defendant has paid the City of Louisville $200 for each office
operated by him, and at the time of the institution of this suit
had paid the City of Louisville the sum of $200 for each office he
then operated, in advance, for one year from the time of the issue
of the license, and that the said licenses thus obtained have not
yet expired."
The defendant, in addition, pleaded
res judicata in
respect of the matters involved in this action. This defense is
thus set forth:
"The defendant further states that after the making of the
contract between the City of Frankfort and said E. S. Stewart, as
set forth in the second paragraph hereof, the Commonwealth of
Kentucky, by her Attorney General,
Page 168 U. S. 494
filed a petition in the Franklin Circuit Court against the City
of Frankfort, the said E. S. Stewart, and others, in the nature of
a writ of
quo warranto, alleging in said petition that the
said E. S. Stewart, and others claiming under him were selling
lottery tickets under the said grant, claiming under the contract
referred to in the second paragraph herein, and further alleged
that the said Board of Councilmen of the City of Frankfort had no
title to said lottery franchise, and had no authority to sell and
convey the scheme as set forth in said contract, and that the
defendants in said action were engaged in selling tickets under
said contract in violation of law, and that the exercise of the
privileges by them was injurious to public morals, by tempting the
people into the immoral habit of gaming, and that the said
defendants were usurping the franchise -- all of which matters and
things are now relied upon in this action, and are the identical
matters for which relief is sought in this case, and that, by the
said petition the plaintiffs herein sought in said action to enjoin
and oust the defendants therein from proceeding further to sell
tickets and operate the lottery privileges claimed by them, which
are the identical rights claimed herein, and the court was asked to
hold the said franchise void, and to annul and adjudge as cancelled
all rights of the defendants therein. That said defendants filed
their answer in said case, and joined issue upon the allegations of
the said petition. That thereafter, upon motion of the Commonwealth
of Kentucky, the said action was transferred from the Franklin
Circuit Court to the Oldham Circuit Court. That in the said case,
such proceedings were had that the court finally entered a judgment
declaring that, under the Act of March 16, 1869, referred to in
paragraph 2 hereof, the City of Frankfort and the board of
councilmen of said city did obtain the legal title to said lottery
franchise, and the classes thereof. And further that the said City
of Frankfort, under the Act of March 28, 1872, referred to in
paragraph 2, were authorized to sell and dispose of said scheme
upon such terms as they deemed proper, and that said act was
constitutionally valid and binding, and authorized such sale and
transfer, and that the contract made between the City of Frankfort
and the said E. S.
Page 168 U. S. 495
Stewart, which is the same contract relied upon herein, was a
valid and subsisting obligation, and enforceable as a legal
obligation. From said judgment of the Oldham Circuit Court, the
Commonwealth of Kentucky prayed an appeal to the Court of Appeals
of Kentucky, and the said Court of Appeals of Kentucky on the 27th
day of February, 1878, entered a judgment affirming the judgment of
the Oldham Circuit Court, and adjudged in said action that the
General Assembly of the Commonwealth of Kentucky by the Act of
March 16, 1869, did confer upon the Board of Councilmen of the City
of Frankfort the said lottery franchise, and that the said act was
valid, and that the City of Frankfort, by reason thereof, was the
owner of the scheme named in the contract referred to, and that,
under the Act of March 28, 1872, the City of Frankfort had the
legal right to sell and dispose of the same upon such terms and
conditions as it deemed proper, and that the said sale to the said
E. S. Stewart, and the contract in relation thereto, was binding
and valid, and had been entered into in strict conformity with the
said acts of the General Assembly. A copy of the pleadings in said
case and the opinions and judgment of said courts will be filed
herewith as a part hereof. The defendant says that, by reason of
the proceedings in said action, and the judgment of the courts
thereupon, the plaintiff is barred from bringing or maintaining
this action; that the legality of the Act of March 28, 1872, and
the validity of the contract of E. S. Stewart with the City of
Frankfort, are matters
res judicata, by reason of said
judgment, and he pleads and relies upon the same herein."
The federal question presented for our determination arises upon
the claim of the plaintiff in error -- which was denied by the
final judgment of the highest court of Kentucky -- that the
agreement between the City of Frankfort and E. S. Stewart by which
the latter became the owner of the lottery scheme devised by that
city under the authority of law was a contract the obligation of
which the state was forbidden by the Constitution of the United
States to impair, either by legislative enactment or by
constitutional provision.
If this interpretation of the federal Constitution be
correct,
Page 168 U. S. 496
it will follow that any provision in the Constitution or in the
statutes of Kentucky forbidding lotteries and gift enterprises in
that commonwealth, and revoking the lottery privileges or charters
theretofore granted is null and void as to the defendant Douglas,
who succeeded to the rights acquired by Stewart under the agreement
of 1875 with the City of Frankfort. This necessarily results from
the declaration that the Constitution of the United States is the
supreme law of the land, anything in the Constitution or laws of
any state to the contrary notwithstanding.
This Court had occasion many years ago to say that the common
forms of gambling were comparatively innocuous when placed in
contrast with the widespread pestilence of lotteries; that the
former were confined to a few persons and places, while the latter
infested the whole community, entered every dwelling, reached every
class, preyed upon the hard earnings of the poor, and plundered the
ignorant and simple.
Phalen v.
Virginia, 8 How. 163.
Is a state forbidden by the supreme law of the land from
protecting its people at all times from practices which it
conceives to be attended by such ruinous results? Can the
legislature of a state contract away its power to establish such
regulations as are reasonably necessary from time to time to
protect the public morals against the evils of lotteries?
These questions arose and were determined, upon much
consideration, in
Stone v. Mississippi, 101 U.
S. 814,
101 U. S.
819-821.
It will be seen from the report of that case that the
Legislature of Mississippi chartered the Mississippi Agricultural,
Educational & Manufacturing Aid Society, with authority to
raise money by way of lottery, and in consideration thereof the
society paid $5,000 into the Treasury of the state, and agreed to
pay, and did pay, an annual tax of $1,000, together with one-half
of one percent on the amount of receipts derived from the sale of
certificates. While the society's charter was in force, the state
adopted a new constitution, declaring that the legislature should
never authorize a lottery, nor should the sale of lottery tickets
be allowed, nor any lottery theretofore authorized be permitted to
be drawn, or tickets
Page 168 U. S. 497
therein be sold. This was followed by the passage of an act
prohibiting lotteries, and making it unlawful to conduct one in the
state. The question was then raised by an information in the nature
of
quo warranto, whether the lottery privilege given by
the society's charter could be withdrawn or impaired by the state
legislation, that society having, as was conceded, complied with
all the conditions upon which its charter was granted. The Supreme
Court of Mississippi held that the state could withdraw the lottery
privilege which it had granted. And that conclusion was questioned
upon writ of error sued out from this Court.
Chief Justice Waite, who delivered the unanimous judgment of the
Court in that case, said:
"The question is therefore directly presented whether, in view
of these facts, the legislature of a state can, by the charter of a
lottery company, defeat the will of the people, authoritatively
expressed, in relation to the further continuance of such business
in their midst. We think it cannot. No legislature can bargain away
the public health or the public morals. The people themselves
cannot do it -- much less their servants. The supervision of both
these subjects of governmental power is continuing in its nature,
and they are to be dealt with as the special exigencies of the
moment may require. government is organized with a view to their
preservation, and cannot divest itself of the power to provide for
them. For this purpose, the largest legislative discretion is
allowed, and the discretion cannot be parted with, any more than
the power itself."
Again, referring to lotteries:
"They disturb the checks and balances of a well ordered
community. Society built on such a foundation would almost of
necessity bring forth a population of speculators and gamblers,
living on the expectation of what, 'by the casting of lots, or by
lot, chance, or otherwise,' might be 'awarded' to them from the
accumulation of others. Certainly the right to suppress them is
governmental, to be exercised at all times by those in power at
their discretion. Anyone, therefore, who accepts a lottery charter
does so with the implied understanding that the people, in their
sovereign capacity, and through their properly constituted
agencies, may
Page 168 U. S. 498
resume it at any time when the public good shall require,
whether it be paid for or not. All that one can get by such a
charter is a suspension of certain governmental rights in his
favor, subject to withdrawal at will. He has, in legal effect,
nothing more than a license to enjoy the privilege on the terms
named for the specified time, unless it be sooner abrogated by the
sovereign power of the state. It is a permit, good as against
existing laws, but subject to future legislative and constitutional
control or withdrawal."
It is suggested that, in important particulars, the opinion and
judgment in
Stone v. Mississippi was modified by the
decision in
New Orleans v. Houston, 119 U.
S. 265,
119 U. S. 275.
So far from this being true, the principles announced in the former
case were recognized, and held to have no application, in the
latter case. In
New Orleans v. Houston, the question was
whether the Legislature of Louisiana could destroy or impair a
lottery charter granted and authorized by the constitution of that
state. This Court, speaking by Mr. Justice Matthews, said:
"It is undoubtedly true that no rights of contract are or can be
vested under this constitutional provision which a subsequent
constitution might not destroy without impairing the obligation of
a contract, within the sense of the Constitution of the United
States, for the reason assigned in the case of
Stone v.
Mississippi. But an ordinary act of legislation cannot have
that effect, because the constitutional provision has withdrawn
from the scope of the police power of the state, to be exercised by
the General Assembly, the subject matter of the granting of lottery
charters, so far as the Louisiana State Lottery Company is
concerned, and any act of the legislature contrary to this
prohibition is, upon familiar principles, null and void. The
subject is not within the jurisdiction of the police power of the
state as it is permitted to be exercised by the legislature under
the constitution of the state."
So that, in
New Orleans v. Houston, it was decided that
while a lottery grant was not a contract within the meaning of the
federal Constitution, the obligation of which was protected against
impairment by the state making the grant, the legislature could not
strike
Page 168 U. S. 499
down a lottery which the fundamental law of the state had
authorized.
In the argument on behalf of the plaintiff in error, much stress
was laid upon former decisions of the Court of Appeals of Kentucky
relating to rights acquired under lottery grants. Our attention had
been particularly called to
Gregory v. Shelby County Lottery
Trustees, 2 Metc. (Ky.) 589, 598. From the report of that case
it appears that the Legislature of Kentucky in 1838 granted to
Shelby College the privilege of raising the sum of $100,000 by
lottery, with authority to sell or dispose of the scheme or any
classes of the lottery. In 1855, the provision of the Revised
Statutes declaring that all lottery privileges should cease took
effect. And the question arose as to the effect of that enactment
upon the rights of one who had loaned money to the college upon the
faith of the lottery grant, and, to secure the loan, had taken from
the trustees of the institution a mortgage upon their rights under
the lottery franchise. The Court of Appeals of Kentucky, conceding
that the grant of a privilege to raise money by a lottery was a
mere gratuity, was not an act of incorporation, conferred no
charter rights, and did not amount to a contract, proceeded:
"Although, therefore, the legislature has the power to repeal
the grant of a lottery privilege where no rights have accrued under
it, and though lotteries have a demoralizing tendency, and exercise
a very pernicious influence over the ignorant and credulous part of
the community, and for this reason have been almost universally
denounced by the lawmaking power in different states of the Union,
yet, if rights have been acquired or liabilities incurred upon the
faith of the privilege conferred by the grant, it would be
obviously unjust to permit such rights to be divested by a
legislative revocation of the privilege. If, therefore, any vested
rights have been acquired under the present grant before the
passage of the repealing law, then, to the extent of such rights,
at least, the law must be regarded as unconstitutional and
inoperative. This conclusion is, we think, fully sanctioned by the
following adjudged cases:
Dartmouth College v.
Woodward, 4 Wheat. 518,
17 U. S.
643;
Fletcher v.
Page 168 U. S. 500
Peck, 9 Cranch 88;
University of Maryland v.
Williams, 9 Gill & Johnson 365;
Terrett v.
Taylor, 9 Cranch 43,
13 U. S.
52;
Louisville v. University of Louisville, 15
B. Mon. 642, 692. The plaintiff, Waller, before the repealing act
was passed, had, on the faith of the lottery grant, advanced large
sums of money which were appropriated by him for the benefit of
Shelby College, and the trustees of the college had mortgaged to
him their rights under the lottery franchise for his indemnity. As
the lottery privilege was granted for the benefit of the Shelby
College, and the money was advanced by Waller with the assent of
the trustees of the college under the belief that it would be
realized eventually from the lottery, he became thereby invested
with the right to the use of the grant until from such use the sum
was produced which he had advanced for the benefit of the college.
This was a vested right, of which he could not be divested by an
act of the legislature. So far, therefore, as the repealing act
interferes with or affects this right, it is unconstitutional and
inoperative."
These principles were recognized in cases subsequently decided
by the same court.
The defendant insists that his rights, having been acquired when
these decisions of the highest court of Kentucky were in full
force, should be protected according to the law of the state as it
was adjudged to be when those rights attached. But is this Court
required to accept the principles announced by the state court as
to the extent to which the contract clause of the federal
Constitution restricts the powers of the state legislatures?
Clearly not. The defendant invokes the jurisdiction of this Court
upon the ground that the rights denied to him by the final judgment
of the highest court of Kentucky, and which the state seeks to
prevent him from exercising, were acquired under an agreement that
constituted a contract within the meaning of the federal
Constitution. This contention is disputed by the state. So that the
issue presented makes it necessary to inquire whether that which
the defendant asserts to be a contract was a contract of the class
to which the Constitution of the United States refers. This Court
must determine -- indeed, it cannot, consistently with its duty,
refuse
Page 168 U. S. 501
to determine -- upon its own responsibility, in each case as it
arises, whether that which a party seeks to have protected under
the contract clause of the Constitution of the United States is a
contract the obligation of which is protected by that instrument
against hostile state legislation.
In
Jefferson Branch Bank v.
Skelly, 1 Black 436,
66 U. S. 443,
which involved the contract clause of the Constitution, it was
contended that this Court should accept as conclusive the
interpretation placed by the Supreme Court of Ohio upon the
Constitution and laws of that state as affecting certain state
legislation which it was alleged constituted a contract the
obligation of which could not be impaired by legislation. Mr.
Justice Wayne, delivering the unanimous judgment of the Court,
said:
"The constructions given by the courts of the states to state
legislation and to state constitutions have been conclusive upon
this Court, with a single exception, and that is when it has been
called upon to interpret the contracts of states, 'though they have
been made in forms of law,' or by the instrumentality of a state's
authorized functionaries in conformity with state legislation. It
has never been denied, nor is it now, that the Supreme Court of the
United States has an appellate power to revise the judgment of the
supreme court of a state whenever such a court shall adjudge that
not to be a contract which has been alleged, in the forms of legal
proceedings, by a litigant, to be one within the meaning of that
clause of the Constitution of the United States which inhibits the
states from passing any law impairing the obligation of contracts.
Of what use would the appellate power be to the litigant who feels
himself aggrieved by some particular state legislation if this
Court could not decide, independently of all adjudication by the
supreme court of a state, whether or not the phraseology of the
instrument in controversy was expressive of a contract and within
the protection of the Constitution of the United States, and that
its obligation should be enforced, notwithstanding a contrary
conclusion by the supreme court of a state? It never was intended,
and cannot be sustained by any course of reasoning, that this Court
should or could, with fidelity to the Constitution of the
Page 168 U. S. 502
United States, follow the construction of the supreme court of a
state in such a matter when it entertained a different opinion;
and, in forming its judgment in such a case, it makes no difference
in the obligation of this Court in reversing the judgment of the
supreme court of a state upon such a contract whether it be one
claimed to be such under the form of state legislation, or has been
made by a covenant or agreement by the agents of a state, by its
authority."
The doctrine that this Court possesses paramount authority, when
reviewing the final judgment of a state court upholding a state
enactment alleged to be in violation of the contract clause of the
Constitution, to determine for itself the existence or nonexistence
of the contract set up, and whether its obligation has been
impaired by the state enactment, has been affirmed in numerous
other cases.
Ohio Life Ins. Co. v.
Debolt, 16 How. 416,
57 U. S. 452;
Wright v. Nagle, 101 U. S. 791,
101 U. S. 794;
Louisville Gas Co. v. Citizens' Gas Co., 115 U.
S. 683,
115 U. S. 697;
Vicksburg, Shreveport &c. Railroad v. Dennis,
116 U. S. 665,
116 U. S. 667;
N.O. Waterworks Co. v. Louisiana Sugar Co., 125 U. S.
18,
125 U. S. 36;
Bryan v. Board of Education, 151 U.
S. 639,
151 U. S. 650;
Mobile & Ohio Railroad v. Tennessee, 153 U.
S. 486,
153 U. S. 493;
Bacon v. Texas, 163 U. S. 207,
163 U. S.
219.
In view of these adjudications, it is clear that we are not
required to accept as authoritative in this case the decision of
the Court of Appeals of Kentucky in
Gregory v. Shelby College
Lottery Trustees, above cited, to the effect that a
legislative revocation of a lottery grant is a violation of the
Constitution of the United States so far as such revocation affects
rights acquired on the faith of the privilege conferred by the
grant, and the exercise of which involves the continuance of that
privilege for such time as may be necessary for the full enjoyment
of those rights. On the contrary, we hold that a lottery grant is
not in any sense a contract within the meaning of the Constitution
of the United States, but is simply a gratuity and license, which
the state, under its police powers, and for the protection of the
public morals, may at any time revoke, and forbid the further
conduct of the lottery, and that no right acquired during the life
of the grant on the
Page 168 U. S. 503
faith of or by agreement with the grantee can be exercised after
the revocation of such grant and the forbidding of the lottery if
its exercise involves a continuance of the lottery as originally
authorized. All rights acquired on the faith of a lottery grant
must be deemed to have been acquired subject to the power of the
state to the extent just indicated. Nevertheless, rights acquired
under such a grant consistently with the law as it was when they
were so acquired, and which rights may be exercised and enjoyed
without conducting a lottery forbidden by the state, are, of
course, not affected, and could not be affected, by the revocation
of such grant. Here, the defendant insists that as the agreement
under which Stewart became the owner of the Frankfort lottery
scheme was lawful when made, he, as assignee of Stewart, is
protected by the Constitution of the United States in carrying on
that lottery despite the prohibition of all lotteries, and the
revocation of all lottery grants, by the present Constitution of
Kentucky, adopted after the transfer to Stewart of the benefit of
that scheme. For the reasons stated, this contention must be
overruled. It could not be sustained without overruling
Stone
v. Mississippi, which we have no inclination to do.
Some stress has been laid by counsel upon the fact that in an
action brought by the state in the nature of
quo warranto
against the City of Frankfort, and which was determined upon appeal
by the Court of Appeals of Kentucky on the 27th day of February,
1878, it was adjudged that the contract between that city and
Stewart was a valid and binding contract, and consequently the
state is barred, upon the principle of
res judicata, from
maintaining the present action. The opinion in that case has not
been published in the regular reports, but a copy of it appears in
the record. It is sufficient, in answer to the contention of the
defendant, to say that the case referred to, as appears from the
opinion of the state court, involved nothing more than the validity
of the agreement of 1875 between the City of Frankfort and Stewart
under the law as it was when such agreement was made, and did not
necessarily involve any inquiry as to the power of the state, by
legislative or constitutional provision, and without violating
Page 168 U. S. 504
the clause of the Constitution of the United States prohibiting
the passage of state laws impairing the obligation of contracts, to
revoke an existing lottery grant and prohibit all lotteries within
its limits. The thing adjudged in the case referred to fully
appears from the statement made by the Court of Appeals of Kentucky
of the conclusion which it reached -- namely:
"We therefore conclude that the legislature of 1869 conferred on
the Board of Councilmen of the City of Frankfort franchises,
powers, and authority equal or exactly similar to those that had by
the act of 1838 been conferred on the managers, which include the
privilege of raising one hundred thousand dollars by operating a
lottery."
A decision that the agreement between the City of Frankfort and
Stewart was, when made, valid under the laws of Kentucky did not
determine, as between the state and those asserting rights under
that agreement, that the state could not, by subsequent legislative
enactment or by constitutional provision, and so far as the
Constitution of the United States was concerned, prohibit all
lotteries, and thereby prevent the exercise, by those asserting it,
of the right, under or by virtue of that agreement, to carry on a
lottery against the expressed will of the state.
We have felt some embarrassment, arising from the conflict
between the present decision and the former decisions of the
highest court of Kentucky upon the general subject of lotteries,
and as to the power of the state, by contract, to so tie its hands
that it may not revoke, in its discretion, grants of lottery
privileges and prohibit the carrying on of all lotteries. But that
embarrassment has been greatly lessened by the fact that that
court, in its opinion in the present case, after referring to
Stone v. Mississippi, said:
"It seems to us that this decision defining the provision of the
federal Constitution as to what subjects are contracts, and
protected by it, and that lottery grants, though paid for, are not
protected by said provision, is binding upon this Court, and has
the effect to overrule its decisions holding the contrary view.
But, apart from the binding force of the decision, it seems that
its logic is conclusive and convincing, in drawing the distinction
between
Page 168 U. S. 505
the contractual and governmental power of the states, to-wit,
that the provision of the federal Constitution in reference to
contracts only inhibits the states from passing laws impairing the
obligations of such contracts as relate to property rights, but not
to subjects that are purely governmental."
In the same opinion, it was well observed that, under any other
doctrine than that announced in
Stone v. Mississippi, the
legislature, by giving or bartering away the power to guard and
protect the public morals, could
"convert the state into dens of bawdy houses, gambling shops,
and other places of vice and demoralization, provided the grantees
paid for the privileges, and thus deprive the state of its power to
repeal the grants, and all control of the subjects, as far as the
grantees are concerned, and the trust duty of protecting and
fostering the honesty, health, morals, and good order of the state
would be cast to the winds, and vice and crime would triumph in
their stead. Now it seems to us that the essential principles of
self-preservation forbid that the commonwealth should possess a
power so revolting, because destructive of the main pillars of
government."
We perceive no error in the judgment of the Court of Appeals of
Kentucky, and it is
Affirmed.
MR. JUSTICE SHIRAS agrees that the judgment should be affirmed,
but does not concur in all the reasoning of this Court.