486 S.W.2d 725
STATE of Tennessee.
v.
Nick NETTO et al. and J. R. Montgomery,
alias.
Supreme Court of Tennessee.
Nov. 6, 1972.
McCANLESS, Justice.
This case involves the interpretation and
construction of Section 39--2017, Tennessee
Code Annotated, as amended by Chapter 167,
Public Acts of 1971:
'39--2017. Lottery--Penalty.--Any person
who makes or aids in making, draws or aids
in drawing, or is in any way interested or
concerned in the making or drawing of any
lottery, under any pretense whatever, is
guilty of a misdemeanor, and, upon
conviction, shall be fined in the sum of one
thousand dollars ($1,000), and imprisoned
in the county jail three (3) months.
'The organization of any chain letter club,
pyramid club, or other group organized or
brought together under any plan or device
whereby fees or dues or anything of material
value to be paid or given by members
thereof are to be paid or given to any other
member thereof, which plan or device
includes any provision for the increase in
such membership through a chain process of
new members securing other new members
and thereby advancing themselves in the
group to a position where such members in
turn receive fees, dues or things of material
value from other members, is hereby
declared to be a lottery, and whoever shall
participate in any such lottery by becoming
a member of, or affiliating with, any such
group or organization or who shall solicit
any person for membership or affiliation in
any such group or organization shall be
guilty of a misdemeanor and upon
conviction thereof shall be punished by a
fine of not less than one hundred dollars
($100) nor more than one thousand dollars
($1,000), or by imprisonment in the county
jail for a period of not more than three (3)
months, or both.'
The grand jury indicted the defendants,
charging that each 'did participate in and
solicit other persons for affiliation in a group,
to wit: 'Dare to Be Great,' organized under a
plan whereby membership is increased
through a chain process of new members
securing other members and thereby
advancing themselves in the group to a
position where such members in turn receive
fees from other members, to wit: said (naming
each defendant) did represent himself as a
member of the said group, 'Dare to Be Great,'
and as a sales agent of said group, and did
solicit others to become members of said
group which was represented as a
motivational course consisting of tape
cassettes, material in notebook form, and a
training class in salesmanship, and did
represent that other people, by becoming
members of said group, 'Dare to Be Great,'
could advance themselves and earn
commission fees by securing other new
members in said group, *728 thereby
operating a lottery in violation of Section 39--2017, Tennessee Code Annotated, as amended
by Chapter 167, Public Acts of 1971, and
against the peace and dignity of the State of
Tennessee.'
The defendants moved to quash the
indictments on the ground that the statute
upon which the indictments were based
violated their right to due process of law
because it was, on its face, written in terms so
vague that men of common intelligence must
guess at its meaning. The motion was
sustained, and the State was granted a direct
appeal to this Court since a constitutional
question alone is involved.
The sole issue for determination is whether
Section 39--2017, T.C.A., is
unconstitutionally vague and overbroad so as
to deprive defendants of their rights under the
due process clause of the Fourteenth
Amendment of the Constitution of the United
States and Article 1, Section 8 of the
Constitution of Tennessee.
[1][2][3][4] Both principles of law and
considerations of policy govern the
determination whether a statute fulfills its
requirements under the due process clause of
the Fourteenth Amendment. Courts are often
prone, however, to adopt concise phrases
from well written opinions which summarily
embrace a given standard. It is said that a
statute which either forbids or requires the
doing of an act in terms so vague 'that men of
common intelligence must necessarily guess
at its meaning' and differ as to its application
violates the first essential of due process of
law. Connally v. General Construction
Company, 269 U.S. 385, 391, 46 S.Ct. 126,
127, 70 L.Ed. 322, 326 (1926). The line of
demarcation between what is lawful and what
is unlawful cannot be left to conjecture. The
statute must be sufficiently explicit to inform
those who are subject to it what conduct on
their part will render them liable to its
penalties. Roberts v. Clement, 252 F.Supp.
835 (D.C.Tenn.1966). No one should be
required at peril of life, liberty, or property to
speculate as to the meaning of penal statutes.
Lanzetta v. New Jersey, 306 U.S. 451, 59
S.Ct. 618, 83 L.Ed. 888 (1939). On the other
hand, legislatures when adopting such statutes
as the one in question are reluctant to define
such conduct in specific terms; for to do so
would encourage the circumvention of such
laws through the varied schemes that
ingenious persons may discover.
[5][6][7][8] While statutory laws in
derogation of the common law are to be
strictly construed and are not to be extended
beyond their plain meaning, the intent of the
legislature must govern. Statutes are not to be
construed so strictly as to defeat the obvious
intention of the legislature. Southern Ry. Co.
v. Sutton, 6 Cir., 179 F. 471 (1910).
Questions involving statutory construction '. .
. must be answered in the light of reason,
having in mind the object of the statute, and
the mischief it aims at.' Southern Ry. Co. v.
Sutton, supra. Courts should, if possible,
sustain the validity of a statute and should not
construe it in a manner which would defeat it.
State v. Cooley, 141 Tenn. 33, 206 S.W. 182
(1918).
Article Eleven, Section five of the Tennessee
Constitution provides:
'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.'
[9][10] This provision has been interpreted as
a blanket prohibition against lotteries. Bass v.
City of Nashville, 19 Tenn. 421 (1838). The
legislative intent of Section 39--2017, T.C.A.,
seems clear: to prohibit 'the organization of
any . . . pyramid club, or other group
organized . . . under any plan . . . whereby fees
. . . given by members thereof are to be paid
or given to any other member thereof, which
plan includes any *729 provision for the
increase in such membership through a chain
process of new members securing other new
members and thereby advancing themselves
in the group to a position where such
members in turn receive fees . . ..' The statute
is designed to proscribe all marketing plans of
any description which are in the nature of
lotteries.
In the recent case of M. Lippincott Mortgage
Investment Co. of Florida v. Childress,
Fla.App., 204 So.2d 919 (1968), the court
interpreted a Florida statute (see F.S.A. s
849.091) similar to the Tennessee statute.
The case involved a suit by an assignee on a
note against the buyers of a central home
vacuum cleaning unit. The buyers sought to
have the note declared void since the conduct
under which the note was given constituted a
lottery within F.S.A. s 849.091. The facts
involved were that a purchaser would buy a
unit and sign a note for its purchase price. In
turn, the purchaser would become a
'representative' of the company under a
commission agreement. Under the
agreement, the purchasers would submit a list
of prospective purchasers and for each unit
sold to the prospects so furnished, a $50.00
commission would be paid. In turn, each
prospect would be offered the same proposal,
and for each person referred by the original
purchaser's prospect to whom a unit was sold,
the original purchaser would get another
$50.00. The court held this to be a lottery
within the meaning of the statute. We need
only to substitute a 'motivational sales course'
for the vacuum cleaners to find virtually the
same facts presented by the case before us. In
a similar case involving the sale of radio
intercoms and fire alarm systems a
Washington court held:
'The court will inquire, not into the name,
but into the game, however skillfully
disguised, in order to ascertain if it is
prohibited, or if it has the element of
chance. It is the one playing at the game
who is influenced by the hope enticingly
held out, which is often false or
disappointing, that he will, perhaps by good
luck, get something for nothing or a great
deal for a very little outlay. This is the lure
that draws credulous and unsuspecting into
the deceptive scheme, and it is what the law
denounces as wrong and demoralizing.'
Sherwood and Roberts-Yakima, Inc. v.
Leach, 67 Wash.2d 630, 409 P.2d 160
(1965).
[11] Likewise, we are of the opinion that the
conduct which is proscribed by the statute is
determinative, and not whether it is deemed a
lottery, a scheme, plan, device, or by whatever
other designation.
[12] Counsel for the defendants argue that the
words, 'group', 'members', and 'advance
themselves in a group' are so vague and
incapable of precise definition as to render the
statute constitutionally infirm. However, in
construing a statute, all sections are to be
construed together in light of the general
purpose and plan, evil to be remedied, and
object to be attained, and if the language is
susceptible of more than one construction, the
statute should receive the construction that
will effect rather than defeat its purpose.
Tucker v. McDell's Inc., 50 Tenn.App. 62,
359 S.W.2d 597 (1961).
[13][14] The statute should be given a
construction that will not render its terms
useless. Tasco Developing & Bldg. Corp. v.
Long, 212 Tenn. 96, 368 S.W.2d 65 (1963).
We are of opinion that he words of Section
30--2017, T.C.A., fulfill the requirements of
reasonable certainty under the due process
clause of the Fourteenth Amendment. The
statute does so through the '. . . use of ordinary
terms to express ideas which find adequate
usage and understanding. The use of common
experience as a glossary is necessary to *730
meet the practical demands of legislation.'
Sproles v. Binford,286 U.S. 374, 52 S.Ct. 581,
76 L.Ed. 1167 (1932). A lack of precision is
not itself offensive to the requirements of due
process. Roth v. United States,354 U.S. 476,
77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).
[15] The Constitution does not require
impossible standards; all that is required is
that the language convey a sufficiently
definite warning as to the proscribed conduct
when measured by common understanding
and practices. The Constitution requires no
more. United States v. Petrillo, 332 U.S. 1, 67
S.Ct. 1538, 91 L.Ed. 1877 (1947).
'The root of the vagueness doctrine is a
rough idea of fairness. It is not a principle
designed to convert into a constitutional
dilemma the practical difficulties in
drawing criminal statutes both general
enough to take into account a variety of
human conduct and sufficiently specific to
provide fair warning that certain kinds of
conduct are prohibited.' Colten v. Ky., 407
U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584
(1972).
We agree with the holding of the Kentucky
Court. Citizens who desire to obey the statute
will have no difficulty in understanding it.
Cotten v. Commonwealth (Ky.1971) 467
S.W.2d 374.
[16] We perceive no violation of the
underlying principle that no man shall be held
criminally responsible for conduct which he
could not reasonably understand to be
proscribed.
[17] We hold that the statute is valid and that
the motions to quash the indictments should
have been overruled. We therefore remand
the case to the Criminal Court for trial.
DYER, C.J., CHATTIN and HUMPHREYS,
JJ., and COOPER, Special Justice, concur.
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