Because of the factual elements involved I seriously doubt the advisability of attempting to answer the inquiry. But conceding that "Pari-mutuel wagering" and the "bookmaking form of wagering" has been correctly defined, I do not think either system constitutes a lottery within the meaning of § 65 of the 1901 Constitution of Alabama. We are not here concerned with what constitutes gambling or wagering.
In the first place I do not think § 65, supra, prohibits the authorization of schemes in the nature of a lottery. It does provide that the Legislature "shall pass laws to prohibit the sale in this state of lottery or gift enterprise tickets, or tickets in any scheme in the nature of a lottery." This provision is mandatory but not self executing. If the Legislature saw fit not to pass such laws there is no authority to compel it to do so. But, be that as it may, I do not think House Bill 854 authorizes a scheme in the nature of a lottery.
All the authorities agree, that the three essential elements of a lottery are: consideration, prize, and chance. Under the system or scheme provided for in House Bill No. 854 the elements of consideration and prize are present. "Chance, as one of the elements of a lottery, has reference to the attempt to attain certain ends, not by skill or any known or fixed rules, but by the happening of a subsequent event, incapable of ascertainment or accomplishment by means of human foresight or ingenuity. * * * If merit or skill play any part in determining the distribution, there is no lottery." 34 Am.Jur. p. 649, § 6.
It seems to be conceded that horse racing involves merit and skill.
It may be true that under the pari-mutuel system of wagering, the final odds are determined, in a measure, by chance. But the winning or losing is not determined by chance, but by the merit, will, condition and skill of the horse and rider or driver. The race itself is the determining factor as to whether the better wins or loses. And so far as I know, the same may be said of dog racing except, of course, a dog has no rider or driver.
In my opinion House Bill No. 854 does not violate § 65 of the 1901 Constitution of Alabama. The authorities cited in the opinion of Mr. Justice LAWSON fully sustain this view. I deem it unnecessary to cite them here.