
    Bass vs. the Mayor of Nashville.
    Constitutional Law. Lotteries — Privilege. A grant of a lottery, by a private act of the Legislature, is not a contract in the sense of the constitutional provision, against laws impairing the obligation of contracts.
    Same. Same — privilege. If there be a general law, prohibiting lotteries, and inflicting penalties for drawing them, and the Legislature authorize one lor a specific purpose, by a private act, such act is only a grant of an immunity from penalties and indictments in that particular instance, and for the specified object.
    SAME. Vested Rights. If the grantees of such immunity, draw one or more classes of the lottery, and pause in their proceedings though the specific purpose for which the immunity was granted, remains unattained, there being no; purchaser of a scheme or holder of a ticket to be injuriously effected, the legis-. lature may prohibit the further exercise of the privilege, without violating vested rights.
    SAME. Same. The 5th section of the lltli article of the amended Constitution, providing that the legislature «‘shall pass laws to prohibit the sale of lottery tickets in this State,” is itself a prohibition of lotteries; and a sale of the proceeds of past and future drawings, in the interval between the ratification of the constitution and the passing of the act of 1835, ch. 47, though founded on the consideration that the purchasers of the drawings would do the thing for which the lottery was designed, does not vest a right to the drawings in the purchaser, making it unconstitutional to prohibit the drawing; the pleadings, not showing that the purchaser, before the passing of the act, had been at any trouble, made any advances, or incurred any liability.
    
      Lottery. — Chancery. A sale by the grantees of what had been made and should be made by drawing a lottery, in consideration that the purchasers do the thing for which the lottery was authorised, will not be enforced in a court of equity, by a decree that the grantees draw the lottery, though the purchaser execute the contract on his part. The parties will be left to enforce their rights at law, or abandon them as they may choose.
    By a private act passed by the Legislature of Tennessee on the 15th of November, 1831, entitled — “An act to authorise a Lottery for the continuation of Union Street, in the city of Nashville,” the Mayor of the city, Robert Woods, John P. Erwin, Henry R. Cartmell and John M. Bass, were appointed trustees, with full power and authority to manage and superintend the drawing of a Lottery, for the purpose of raising a sum of money not exceeding seventeen thousand dollars, to he applied to the opening of a street in Nashville, from College to Market Street, being a continuation of Union Street, upon such scheme, in one or more classes, as they or a majority of them, might think best.
    The trustees were authorised to make sale of the lottery tickets, to deposit them for sale with any person, to farm, let out, or sell one or more classes of the lottery; and to take bonds from persons to or with whom such sales or deposites might be made or intrusted, — and in case of failure to comply with such bonds, they, or the survivors of them, might enforce them by law; and to do and transact all things necessary and proper to carry into effect the provisions of the act.
    They were to appropriate the proceeds of the lottery when drawn, or a sufficient sum, when raised, after defraying the necessary expenses of the lottery, to the purchase, from the owners, of the property necessary for the opening of the street; or for the payment of damages assessed to said owners by opening said street, in pursuance of an act of the Legislature, passed November 14,1827, entitled “An act to autho-rise the circuit court of Davidson county, to order the opening of any new street, lane, or alley, in the town of Nashville.”
    The trustees made a contract with Spoford and Estill, and also with John L. Brown, Exchange and Lottery Brokers in Nashville, for the drawing of several classes of the lottery, for which they were to receive a certain amount per cent, of the sums invested in each class. Several classes were drawn, which produced to the trustees upwards of 6000 dollars, which they put at interest to accumulate till the sum necessary to open the street should be raised. The brokers then gave up the contracts, and no one for a long time offering to carry on the business, and it having been ascertained that the sum necessary for opening the street would not fall short of 15,000 or 16,000 dollars, the prospect of opening it became remote and unpromising.
    In this state of things, the following written contracts were executed.
    “We, the undersigned, agree and undertake to and with, the commissioners and trustees of the Union Street Lottery, upon receiving from them the funds already realized from the operations of said lottery, and all which may hereafter from time to time be realized, to open and extend said street within two years from the first of January last, according to the intention and meaning of the act of the General Assembly of this State, authorising said lottery. And in case we fail to open said street within the time aforesaid, we hereby undertake and agree to refund to said commissioners or trustees, or their successors, the sums received by us respectively. In witness whereof we have hereunto set our hands and seals this 3d day of March, 1835. John M. Bass, [seal]; A. L.P. Green, [seal]; J. T. Elliston, [seal.]”
    “We, the undersigned commissioners or trustees of the Union Street Lottery, hereby agree to, and with, A. L. P. Green, Joseph T. Elliston and John M. Bass, that we will pay over to them, from time to time, the funds already realized, and which may hereafter be realized, by us, from the operations of said lottery, for opening said street, upon their undertaking to open said street as contemplated by the act of the General Assembly of the State, authorising said lottery.
    In witness whereof we have hereunto subscribed our names, the 3d day of March, 1835. Signed John P. Erwin, H. R. Cartmell, Robert Woods, commissioners or trustees.”
    Bass, Green and Elliston proceeded, at an expense of 15104 dollars and 54 cents, to purchase the property which was occupied by the street; two of them, Bass and Green, contributing each six feet of ground half the length of it; to remove the houses standing on it, and to open it for public use, all of which they effected one year in advance of the time allowed by the contract. The trustees paid them the moneys which had been realized out of the lottery, at the date of the above contracts, amounting to the sum of ‡ 6611 53 cents.
    The new Constitution of Tennessee, which was made on the 30th of August, 1834, contained the following provision, art. 1, § 5: — “The Legislature shall have no power to authorise lotteries for any purpose; and shall pass laws to prohibit the sale of lottery tickets in this State.” Under this provision, the Legislature of 1835-6 passed “an act to prohibit the drawing of Lotteries and the sale of Lottery tickets,” on the 13th of February, 1836. The first section is a repeal of all laws which authorise any person, or body corporate or politic, to draw any lottery for any purpose whatsoever. The second section prohibits the drawing, or attempting to draw, any lottery in the State, under the penalty of 1000 dollars, and three months imprisonment. The third section prohibits the vending, or attempting to vend, lottery tickets, to be drawn in or out of the State, under a penalty of 500 dollars and one month imprisonment. The fourth section prohibits the printing, publishing, circulating or distributing, any written or printed scheme for the drawing of a lottery in or out of the State, under the same penalties as described in the third section.
    The trustees now refused further to draw the Union Street Lottery, so that Bass, Green and Elliston, if they could not be compelled to draw it, would be considerable losers by reason of their opening the street. They, therefore, on the 18th of October, 1838, filed their bill in the chancery court at Franklin, against Henry Hollingsworth, the mayor of the city, Robert Woods and John P. Erwin, Cartmell having removed from the United States, stating all the above facts, praying that the defendants might be compelled, by a decree of the court, to cause the lottery to be drawn, till out of the proceeds a sum of money might be made, which, when added to the sum already paid the complainants, would be equal to the sum expended by them in opening, the street,” &c.
    The defendants filed their answer, admitting all the above facts, stating the provisions of the constitution and the act of Assembly already recited, and averring that for this reason only, they had not proceeded with the lottery; but professing themselves ready and willing, if said act of Assembly should be adjudged not to be the law of the land, to proceed with the lottery, and referred the matter to the decision of the court.
    The case was set for hearing upon the bill and answer, and was heard on the 15th of November 1838, by his Honor Chancellor Biiamlitt, who being of opinion that the act of 1835 was not unconstitutional, and did not impair the obligation of any contract, or infringe any right vested under the private act of 1831, dismissed the bill. The complainants appealed in error.
    Meigs, for the complainants,
    cited 1 Kent 25, to show that contracts are not impaired by revolutions of government, nor by legislation. Id. 413 et seq: that the prohibition to pass laws impairing the obligations of contracts extends, as well to cases where the parties to the contracts take beneficially for themselves, as when they take in a fiduciary character. 1 Kent, 417: Dartmouth College vs. Woodward, 4 Wheaton, 518, Story’s opinion. And he insisted that the act of ÍS31 was a contract, wherein the State engaged, in consideration that the trustees would, for the public good, open a highway in the chief city of the State, to allow them to draw a lottery to raise the money necessary to pay the expenses of the improvement; that as the trustees had complied with their part of the contract, they became vested with a right to draw the lottery to raise the money in question; that to deprive them of this power was not only a breach of faith, after the public was in the enjoyment of the improvement of the highway, but was a destruction of a vested right; that consequently, the act of 1835 was not to be construed as a prohibition to draw this lottery, and the failure of the commissioners to draw it was without excuse. He also cited JWcGimpsey vs. Booker, 5 Yer. 139, and cases there cited.
    January 21.
    E. H. Ewing, for the defendants,
    argued that the act of 1831 was not a contract with the trustees. It merely conferred a privilege, a special power, which the Legislature might revoke and annul at any time without injustice. It might, indeed, he said, produce detriment, under the circumstances which had happened, but it was damnum absque injuria. The courts could not redress it; and there was no remedy but by an application to the sense of justice of the legislature.
   Reese, J.,

delivered the opinion of the court.

1. We will consider the nature of the interest, which the defendants had, as the Trustees of the Union Street Lottery, by virtue of the provisions of the act of 1831, c. 69, (private acts) for the purpose of ascertaining whether art. 11, § 5, of the reformed constitution, or the 47 ch. of the acts of 1835, passed in pursuance thereof, can be held to have legally terminated that interest.

So early as 1809, c. 39, the drawing of a lottery within this State was prohibited by legislative enactment and by the infliction of severe penalties. By judicial construction upon that act, and the several acts to prevent and punish gaming, all persons concerned in lotteries were held.to be guilty of gaming and to be punished by indictment as for that offence. Lotteries then stood reprobated by legislative enactment and by judicial decision, as contrary to public policy, and to good morals; and a wise and enlightened public sentiment every where sustained the enactment and the decision.

Under such circumstances, we ask, what was conferred upon the defendants by the act of 1831, c. 69? Nothing, certainly, but an immunity, in that particular instance, and for the specified object, from penalties and indictments; an indulgence granted to them to perform acts which were, in general, held to be against public policy and good morals; a permissionfto do that, for the doing of which, all others would have been subjected to fine and imprisonment. If, then, before the defendants had done any thing under the act of 1831, this privilege conceded to them, of gaming, without liability to criminal prosecution until they had realised a specified amount of profits, had been abrogated by a subsequent legislature, and they had been placed upon the same ground with all other citizens, of what could they have complained? Could they have, on just grounds, alledged that a contract had been impaired, or aright divested? See 3 Story, § 1379, 1385. For this, surely, no one will contend. If, then, they had organised a scheme, and had drawn one or more classes of the lottery, as the bill alleges was done, and so to speak, one or. two games had been played and finished; and the legislature finding a pause in their proceedings, when no purchaser of a scheme and no holder of a ticket could be injuriously affected, and availing themselves of this pause, had prohibited the further exercise of this extraordinary privilege, could the defendants he heard to object to the prohibition upon the ground that they had not realised all the profits which they bad been promised, and which they expected? Certainly not.

2. In the precise state above supposed stood this matter, when die Convention, in 1834, adopted the fifth section of the eleventh article of the reformed constitution, in which they provide, that the legislature “shall pass laws to prohibit the sale of lottery tickets in this state.” This was itself a prohibition, and was announced to the complainants before the formation of their contract with the defendants. And again, although that contract is dated before the act of 1835, c 47, yet, neither the bill nor the answer alledges that the complainants, before the passage of that act, were at any trouble, made any advances, or incurred any liability whatever. They are therefore in no better situation with regard to the repealing law, than the defendants.

3. If we had taken a different view of both the points above, discussed, still we could by no means have decreed a specific execution of the contract, and ordered the drawing of a lottery, which might, under the provisions of the act of 1835, c 47, have subjected hundreds of our citizens, the drawers of the lottery, the vendors of tickets, the parties, publishers, and circulators of the scheme, and even the ticket holders themselves, to prosecution by indictment.

A court of chancery in such case, upon the clearest principles, would leave the parties to enforce, or to abandon their rights and remedies at law, as to them might seem best.

Let the decree be affirmed.  