
    The People of the State of New York ex rel. Joseph Sturgis, Respondent, v. John Fallon, Warden and Keeper of the City Prison of the City of New York, Appellant.
    1. Betting on House Races—L. 1895, On. 570, § 17 —Penalty. The making or recording by a person upon a race course authorized by, or entitled to the benefits of, chapter 570, Laws of 1895, of a bet upon a horse race taking place thereon, even if it he denominated bookmaking, is subject to the exclusive penalty of forfeiture of the amount of the bet, to he recovered in a civil action, prescribed by section 17 of the act, and consequently is excepted from the provisions of section 351 of the Penal Code, provided such making or recording are not accomplished by any of the acts specifically excepted in said section 17.
    2. Constitutionality of L. 1895, Cn. 570, § 17. Section 17 of chapter 570, Laws of 1895, which imposes the exclusive penalty of a forfeiture of the amount of the bet, to be recovered in a civil action, upon a person who, on a race course authorized by, or entitled to the benefits of, the act, makes or records a bet upon a horse race thereon, is not in conflict with the provisions of the Constitution (Art. 1, § 9), which prohibit the authorization of lotteries, poolselling, hookmaking, or any other kind of gambling, and require the legislature to pass appropriate laws to prevent such offenses.
    3. Extent of Penalty—Province of Legislature. Where, as in section 17 of chapter 570, Laws of 1895, the act prohibited by the Constitution is forbidden by the legislature, and the statute provides a penalty or forfeiture for a disregard of it, the determination of the degree of punishment or the extent of the penalty is vested in the legislature and not in the courts.
    
      People ex rel. Sturgis v. Fallon, 4 App. Div. 76, affirmed.
    (Argued January 18, 1897;
    decided March 2, 1897.)
    
      Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 11, 1896, which affirmed an order of the Court of Oyer and Terminer for the city and county of New York sustaining writs of habeas corpus and certiorari, and discharging the relator from the custody of the appellant.
    The facts, so far as material, are stated in the opinion.
    
      John D. Lindsay for appellant.
    The evidence before the city magistrate was sufficient, prima facie, to show that Jones and the relator were, at the time of the latter’s arrest, engaged in “ bookmaking ” within the meaning of section 351 of the Penal Code, as that section was amended by chapter 572 of the Laws of 1885. (Haley v. Cridge, Daily Reg. March 11, 1882; Murphy v. Bd. of Police, 11 Abb. [N. C.] 337; J. P. Co. v. Bd. of Police, 11 Abb. [N. C.] 342; Reilly v. Gray, 77 Hun, 402; L. 1877, ch. 178; L. 1887, ch. 479, §§ 4, 7; L. 1893, ch. 469; People v. Cleary, 13 Misc. Rep. 546; 6 Record N. Y. Const. Conv. 1894, pp. 2581-2585, 2599-2610; Const. N. Y. art. 1, § 16; L. 1895, ch. 572.) No penalty for the offense of engaging in bookmaking, other than that prescribed by section 351 of the Penal Code, is provided by law, and the offense is, therefore, punishable in the manner there declared. (L. 1895, ch. 570, § 17.)
    
      Benjamin Steinhardt for appellant.
    Section 17 of chapter 570 of the Laws of 1895 is unconstitutional. (Const. N. Y. art. 1, §§ 9, 16; People ex rel. v. Draper, 15 N. Y. 532; People ex rel. v. Albertson, 55 N. Y. 55; People v. Cleary, 13 Misc. Rep. 546; In re Sweeley, 12 Misc. Rep. 174; 148 N. Y. 219; People ex rel. v. Fallon, 4 App. Div. 87.) Even if section 17 be constitutional, the defendant’s offense was punishable under section 351 of the Penal Code. (J. P. Co. v. Bd. of Police, 11 Abb. [N. C.] 342; Const. N. Y. art. 1, § 16; People v. Cleary, 13 Misc. Rep. 546; People ex rel. v. Barber, 5 Crim. Rep. 381; Murphy v. Bd. of Police, 11 Abb. [N. C.] 337.)
    
      
      De Lancey Nicoll for respondent.
    The respondent did not commit the crime of poolselling. (Irving v. Britton, 8 Misc. Rep. 201; State v. Lovell, 10 Vroom, 458.) The respondent did not commit the crime of occupying any room, shed, tenement, tent, booth or building, float or vessel, or any part thereof, or any place or stand of any kind upon any public or private grounds within this state with books, papers, apparatus or paraphernalia for the purpose of recording bets and wagers. (Shaw v. Morley, L. R. [3 Exch.] 137; Bows v. Fenwick, L. R. [9 C. P.] 339; Gallaway v. Maries, L. R. [8 Q. B. D.] 275; Queen v. Cook, L. R. [13 Q. B. D.] 377; Whitehurst v. Fincher, 62 L. T. R. 433; Doggett v. Catterns, 19 C. B. [N. S.] 764; Snow v. Hill, L. R. [14 Q. B. D.] 588.) The respondent did not violate the provisions of section 351 of the Penal Code relating to bookmaking. His acts were within section 17 of chapter 570 of the Laws of 1895, and exposed him only to the penalty imposed by that section. (L. 1895, ch. 570, § 17; L. 1887, ch. 479; J. P. Co. v. Bd. of Police, 11 Abb. [H. C.] 342; Cooley’s Const. Lim. 79, 80; 6 N. Y. Const. Conv. Record, 1894, pp. 2581-2585, 2599-2610.) Section 17 of chapter 570 of the Laws of 1895 is not unconstitutional. (Cooley’s Const. Lim. 154; Ex parte Curtis, 106 U. S. 371; Legal Tender Case, 110 U. S. 421; State v. Shields, 4 Mo. App. 264; State v. Hitchcock, 1 Kans. 178; State v. Smith, 44 Ohio St. 349; Patterson v. Barlow, 60 Penn. St. 54; State of Missouri v. County Court of Boone Co., 50 Mo. 317; Cooley’s Const. Lim. [6th ed.] 201; In re Bayard, 25 Hun, 546.)
   Martin, J.

The relator was charged by an information filed with one of the magistrates of the city of Hew York with a violation of section three hundred and fifty-one of the Penal Code, in that, on October 24th, 1895, at the private grounds of the Westchester Pacing Association in the city of Hew York, he engaged in poolselling, bookmaking, and occupied and used a certain place with books, apparatus and paraphernalia for the purpose of recording and registering bets and wagers. Upon the examination before the magistrate it was shown that on that day he was upon the grounds of the association with one Orlando Jones, by whom he was employed as clerk. He, and Jones who attended the race for the purpose of making wagers according to his judgment, walked about the grounds together, the latter making bets on the races then in progress with persons with whom he was acquainted, and the relator, at his direction, entered such bets on sheets of paper belonging to Jones, which were conveniently ruled for that purpose.

The prosecution called Jones as a witness, wdio testified to the distinction between bookmaking and what was done on that occasion. He was admitted to the grounds without charge as he was the owner of a horse entered for the races, but the relator paid for his admission. UST either J ones n or the relator had any desk, stand, chair, rest or support of-any kind, nor did they occupy any booth, tenement, building or part thereof, or any particular spot upon the grounds. Hor did either exchange any money with any person making a wager with Jones, or exchange, deliver or transfer to any one with whom a wager was made any record, memorandum or document of any kind, or subscribe by name, initials or otherwise any record, registry or memorandum in the possession of another of any bet or wager to be retained by such other or any person as evidence of a bet or wager. Ho odds were posted, money exchanged or memorandum of any kind received, delivered or transferred.

Upon these facts the magistrate decided that the relator had violated section three hundred and fifty-one of the Penal Code, and held him to answer therefor. A writ of habeas-corpus was then obtained, and also a certiorari to review the decision of the magistrate. Upon the hearing in the Court of Oyer and Terminer, the relator was discharged.

As the propriety of the decision in this case is largely, if not wholly, dependent upon the validity of section seventeen ■ of chapter 570 of the Laws of 1895, which is claimed by the appellant to be unconstitutional and void, it may be well, at the threshold of this examination, to refer to the provision of tlie Constitution with which it is said that that section of the statute is in conflict. Section nine of article one of the Constitution of the state declares: “ ¡Nor shall any lottery or the sale of lottery tickets, poolselling, bookmaking, or any other kind of gambling hereafter be authorized or allowed within this state, and the legislature shall pass appropriate laws to prevent offenses against any of the provisions of this section.”

In May, 1895, the legislature, with the ostensible, if not the actual, purpose of complying with this command of the Constitution,, passed several statutes relating to those subjects, being chapters 570, 571, 572 and 573 of the laws of that year.

Chapter 570 is an act for the incorporation of associations for the improvement of the breed of horses, to regulate the same, and to establish a state racing commission. It provides for the incorporation of such associations, for the payment of their capital stock, and makes other provisions to which it is unnecessary to refer at this time. It then provides that such corporations, upon complying with the provisions of that act, shall have the power and right to hold one or more trotting or running race meetings in each year, and to hold, maintain and conduct trotting or running races at such meetings; that at such meetings the corporation, or the owners of horses engaged in such races, or others who are not participants therein, may contribute purses, prizes, premiums or stakes to be contested for; that no person other than the owner of a horse contesting in the race shall have any pecuniary interest in the prize, or be entitled to receive any portion thereof after the race is finished, but the whole shall he allotted in accordance with the terms and conditions of the race. It then provides for a state racing commission, defines its duties and powers, and makes other provisions which need not now be considered. Then it declares: “ § 16. All racing or trials of speed between horses or other animals for any bet, stake or reward, except such as is allowed by this act, or by special laws, is a public nuisance ; and every person acting or aiding therein, or making or being interested in such bet, stake or reward is guilty of a misdemeanor; and in addition to the penalty prescribed therefor he forfeits to the people of this state all title or interest in any animal used with his privity in such race or trial of speed, and in any sum of money or other property betted or staked upon the result thereof.” Then follows the section which the appellant claims to be unconstitutional, which reads: “ § 17. Any person who, upon any race course authorized by or entitled to the benefits of this act, shall make or record, directly or indirectly, any bet or wager on the result of any trial or contest of speed or power of endurance of horses taking place upon such race course, shall forfeit the value of any money or property so wagered, received or held by him, to be recovered in a civil action by the person or persons with whom such wager is made, or by whom such money or property is deposited. This penalty is exclusive of all other penalties prescribed by law for the acts in this section specified, except in case of the exchange, delivery or transfer of a record, registry, memorandum, token, paper, or document of any kind whatever as evidence of any such bet or wager, or the subscribing by name, initials or otherwise, or any record, registry or memorandum in the possession of another person of a bet or wager, intended to be retained by such other person or any other person as evidence of such bet or wager.”

Chapter 571 amends section 343 of the Penal Code, which makes it a misdemeanor to keep a gaming and betting establishment, while chapter 572 amends section 351 of the Penal Code so as to read: “ § 351. Any person who engages in poolselling, or bookmaking, at any time or place ; or any person who keeps or occupies any room, shed, tenement, tent, booth or building, float or vessel, or any part thereof, or who occupies any place, or stand of any kind, upon any public or private grounds, within this state, with boobs, papers, apparatus or paraphernalia, for the purpose of recording or registering bets or wagers, or of selling pools, and any person who records or registers bets or wagers, or sells pools upon the result of any trial or contest of skill, speed or power of endurance, of man or beast, or upon the result of any political nomination, appointment or election; or npon the result of any lot, chance, casualty, unknown or contingent event whatso-. ever; or any person who receives, registers, records or forwards, or purports or pretends to receive, register, record or forward, in any manner whatsoever, any money, thing or. consideration of value, bet or wagered, or offered for the purpose of being bet or wagered, by or for any other person, or sells pools, upon any such result; or any person who, being the owner, lessee or occupant of any room, shed, tenement, tent, booth or building, float or vessel, or part thereof, or of any grounds within this state, knowingly permits the same to be. used or occupied for any of these purposes, or therein keeps, exhibits or employs any device or apparatus for the purpose, of recording or registering such bets or wagers, or the selling of such pools, or becomes the custodian or depositary for gain, hire or reward, of any money, property or thing of value, staked, wagered or pledged, or to be wagered or pledged upon any such result; or any person who aids, assists or abets in any manner in any of the said acts, which are hereby forbidden, is guilty of a felony, except when another penalty is provided by law, and upon conviction is punishable by imprisonment in the state prison for a period of not less than one year, nor more than two years, or by such imprisonment, together with a fine not exceeding two thousand dollars. When an exclusive penalty is provided by law for an act hereby prohibited, the permitting of the use of premises for the doing of the act in such case shall not be deemed a violation hereof, or of section three hundred and forty-three of this code.” Chapter 573 has no important bearing upon the question before us.

This examination of the statutes discloses that the legislature has passed laws, the obvious purpose of which is to prevent the offenses mentioned in section nine of article one of the Constitution. Under the statutes thus passed, all the offenses there named are made felonies or misdemeanors, with the single exception that a person who, upon a race course and at a race authorized by chapter 570, shall make or record a bet or wager on tbe result of a contest taking place thereon, shall forfeit the value of the money or property so wagered, to be recovered in a civil action by the person with whom such wager is made, or by whom such property is deposited, and this penalty is made exclusive of all others, unless in certain excepted cases mentioned.

Under these circumstances, two questions are presented for consideration: 1. Whether the acts alleged and proved to have been performed by the relator were such as to fall only within the provisions of section 17 of chapter 570 of the Laws of 1895, and, consequently, did not constitute a crime, and, if so, 2. Whether that section is in conflict with the provisions of the Constitution.

A careful study of the various statutes involved and of the evidence contained in the record leads to the conclusion that the only acts of which the relator was proved guilty were-those described -in section seventeen, and that he was not ¡Droved to have committed any act which would constitute any of the other offenses mentioned in those statutes. It is manifest that it was the relator’s purpose to keep within the provisions of that section and to avoid any offense whereby he would incur any other penalty.

Plainly he was not a keeper of a betting or gaming establishment or guilty of violating any of the provisions of section 343 of the Penal Code, which forbids the keeping of such establishments.

Mor do we think he was engaged in bookmaking or pool-selling, which is made a crime by section three hundred and fifty-one, unless possibly to the modified extent described in section seventeen as recording a bet or wager, for which the forfeiture of an amount equal to the value of the money or property wagered is the penalty prescribed. If the acts which he performed were only such as fell within the provisions of the latter section, whether denominated bookmaking or making a record of a bet, is of little moment. If it be held that they constitute what might perhaps be called bookmaking, yet, as they consisted only of the acts mentioned in that section, and are punishable as therein provided to the exclusion of any other penalty or punishment, they are excepted from the operation of section three hundred and fifty-one of the Penal Code, as that section expressly excepts from the punishment thereby provided for all the offenses mentioned whenever another penalty is provided by law. While the appellant scarcely contends that the relator was shown to be guilty of poolselling, yet it is insisted that he was guilty of bookmaking and punishable under the provisions of section three hundred and fifty-one. We think it is clear that there was no evidence before the magistrate upon which the relator could be properly held for the offense of poolselling. As has already been intimated, it is not of much consequence whether the acts of the relator be denominated bookmaking or called by some other name. It seems to us that the one important inquiry in relation to this branch of the case is whether the acts of the relator were punishable only in the manner prescribed by section seventeen, and, consequently, excepted froin the provisions of section three hundred and fifty-one of the Penal Code.

That the relator was upon a race course authorized by, and entitled to the benefit of the jiro visions of chapter 570 ; that he made or recorded a het on the result of the contest taking place thereon, and that he did none of the things mentioned in the last paragraph of that section are practically undenied. Therefore, that the acts performed by the relator were only those for which, by section seventeen, the penalty prescribed was a forfeiture of an amount equal to the bet, and as to which it was provided that a civil action to recover it should he the exclusive remedy, must be regarded as established. Such being the case, it follows that, by whatever name the acts of the relator may be described, the only punishment which could be inflicted was that provided by that section, if valid.

It is, however, persistently urged that section seventeen is void as being in contravention of the provisions of the Constitution relating to that subject. Without indulging in any refined or subtle discussion or consideration of the question as to wliat may or may not fall within the terms poolselling, bookmaldng or other kinds of gambling which, under the Constitution, may not be authorized, and in relation to which the legislature is charged with the duty of passing appropriate laws to prevent, it is manifest that the legislature regarded acts of the character of those performed by the relator as falling within its condemnation. Hence, we must asstune that his acts were in conflict with tiie spirit and purpose of the Constitution. In pursuance of its mandate, the legislature has enacted a law which forbids such acts and prescribes as a penalty that a person making a bet or record of it, at the place and in the manner named, shall forfeit an amount equal to the value of the property or sum wagered. Whatever its indirect effect may be, it certainly cannot be said that this was a statute which in terms authorized any of the forbidden acts. The most that can be said is, that when the legislature passed that section of the statute, its effect was to reduce the then existing jienalty or punishment for that particular offense. The authority to prescribe the punishment for the offenses mentioned in that provision of the Constitution is expressly conferred upon the legislature, which necessarily included a delegation to it of the power and authority to increase or decrease the punishment for offenses of that character to such an extent as the legislature deemed proper.

It is not within the province of this court to declare that section seventeen is in contravention of the Constitution, for the reason that it does not deem the provision adopted appropriate or sufficient to prevent such offenses. The Constitution in express terms reposed in the legislature the power, and imposed upon it the duty of passing such laws, thus clothing it with the right to consider and determine for itself what laws were appropriate and should be passed to carry it into effect. That the law under consideration is, in a sense, appropriate to accomplish the purpose of that provision must be admitted. Whether it will prove less effective to accomplish that result than some other we are not called upon to determine. It being in a degree appropriate, we are aware of no principle of constitutional law which would authorize this court to condemn it as invalid or unconstitutional, because, in our opinion, some more effective or more appropriate law might have been devised and enacted. So long as this legislation was in any degree appropriate to carry into effect the purpose of the Constitution, it does not fall under its condemnation.

That this provision of the Constitution was not intended to be self-executing is manifest, as it expressly delegates to the legislature the authority, and requires it to enact such laws as it shall deem appropriate to carry it into execution.

The contention of the appellant, that the purpose of the enactment of section seventeen was to evade or defeat the provisions of the Constitution, is not proved and cannot be presumed, but a contrary presumption must prevail. Presumably the purpose was laudable and proper, such as the legislature deemed best for the proper and efficient accomplishment of the purpose of the Constitution, and no contrary presumption will be indulged in by this court. In the language of Allen, J., in People ex rel. v. Albertson (55 N. Y. 50, 54): “ Courts do not sit in review of the discretion of the legislature, or determine upon the expediency, wisdom or propriety of legislative action in matters within the power of the legislature. Every intendment is in favor of the validity of statutes; and no motive, purpose or intent can be imputed to the legislature, in the enactment of a law, other than such as are apparent upon the face, and to be gathered from the terms of the law itself.” As was said by Denio, Ch. J.: “The courts cannot impute to the legislature any other than public motives for their acts. If a given act of legislation in not forbidden by express words, or by necessary implication, the judges cannot listen to a suggestion that the professed motives for passing it are not the real ones.” (People ex rel. v. Draper, 15 N. Y. 532, 545.)

While under that provision the legislature would have no power to enact laws permitting those offenses, or which in terms protected persons guilty of them from punishment, yet where, as in this case, the act is forbidden by the legislature and the statute provides a penalty or forfeiture for a disregard of it, the determination of the degree of punishment or the extent of the j>enalty is vested in the legislature and not in the courts.

Without further discussion, or considering the question whether the legislation under consideration was, or not, best calculated to accomplish the design of the Constitution, we are of the opinion that section seventeen was not in conflict with section .nine of article one, and, hence, is constitutional and valid.

Treating section seventeen as valid, and construing section three hundred and fifty-one of the Penal Code in connection with it, it at once becomes obvious that the relator was not guilty of any offense under that section for which he was liable to the arrest which he suffered and from which he was discharged.

The order of the Appellate Division was proper and should he affirmed.

All concur.

Order affirmed.  