Were I agreed with my brethren that the so-called “Ives Pool Law” (chapter 479, Laws 1887) purports to legalize pool selling, I should unhesitatingly concur that the act contravenes the constitutional interdiction of the authorization of lotteries by the legislature of this state (Const. 1821, art. 7, § 11; Const. 1846, art. 1, § 10). That a pool upon the result of a horse race is a lottery is apparent from the fact that it is but one of many devices for the venturing or hazarding of a smaller sum for the chance of obtaining a greater; and that such a pool is a lottery was judicially determined in State v. Lovell, 39 N. J. Law, 458. See, also, as to what constitutes a lottery, note in 16 Am. St. Rep. 42 [Yellow-Stone Kit v. State (Ala.) 7 South. 338], containing an elaborate review of adjudged cases. I am, however, of the opin*533ion that an intention to legalize pool selling is not the inevitable effect of the act in question. Nevertheless I concur that the judgment appealed from must be reversed because the act provides no justification therefor.
The facts in this case are all admitted, and it is with the conclusions of law that we are concerned. These facts are substantially that the consideration for the note in suit rested upon the result of gaming transactions,—pools formed as a method for betting upon the results of horse races; that the races were held under the auspices of a duly-incorporated association for improving the breed of horses, and were run upon days legalized for such purposes by the act alluded to; that these pools were formed at such times and at the places where the races took place; in fact that the transactions in question came within the provisions of the act in its essential particulars. The sole question presented is whether, in view of these facts, payment of the note in suit may or may not be enforced in law. The Ives pool law (chapter 479, Laws 1887, § 4) provides that races may be conducted upon any race track of an incorporated association for not more than 30 days in each year; that sections 351 and 352 of the Penal Code shall not apply to such tracks during the number of days during which races are permitted; that racing and pool selling shall be confined to the tracks where the races take place, and the days of such races. The effect, however, of these provisions, is merely to remove the penal inhibition against the public placing and recording of bets, as contained in sections 351 and 352 of the Penal Code, under certain conditions and restrictions. The act, in effect, declares that the sections of the Penal Code shall not be operative where compliance with the prescribed conditions shall exist; and the regulation as to the time and place for the selling of pools is obviously but one of the restrictions in contemplation of which the operation of the penal laws is suspended. The result is precisely the same as if the sections of the Penal Code referred to had originally exempted pool selling at the times and places mentioned in the Ives pool law from their operation. So far only do the provisions of the Ives pool law extend, and in no way do they affect the civil aspect of the gaming contract thus entered into. By the organic law, as well as by express statutory enactment, the contract is civilly void and unenforceable. 3 Rev. St. (Banks Bros. 7th Ed.) p. 1962, § 8, art. 3, tit. 8, c. 20. The facts that provision for the infliction of punishment for the making of the contract is omitted, or that by force of some special statute the contract maj be made with penal impunity, do not alter the rule. Gibbons v. Gouverneur, 1 Denio, 170; Ruckman v. Pitcher, 1 N. Y. 392. That a common-law or statutory right or offense, when subsequently made the subject of penal enforcement or restraint, is not affected by the punitory enactment, in the absence of a clear intent, is a well-settled proposition. Renwick v. Morris, 3 Hill, 621; Tremain v. Richardson, 68 N. Y. 617; Candee v. Hayward, 37 N. Y. 653; Colden v. Eldred, 15 Johns. 220; Platt v. Sherry, 7 Wend. 238; Scidmore v. Smith, 13 Johns. 322. In such a case the subsequent regulation is cumulative upon prior remedy, and the repeal or suspension of the cumulative provision is of no more effect than was its *534enactment. Familiar analogies to the principle governing this case are too numerous to call for mention. The “debt of honor” of popular acceptance does not derive its quality from a criminal inception of the obligation, but from the civil impossibility of its enforcement. The card player may not infringe a penal law in his successful prosecution of a fair game, but with his recovery of the stakes the courts will not be concerned. To hold that the Ives pool law, by the force of its provisions regulating the time and place for the selling of pools on horse races, purported to legalize contract obligations arising from the sales, would entail an unauthorized application of the rules governing statutory construction. This would intend, so far, a repeal by implication of the provisions of the Revised Statutes relating to gaming contracts, and such implication must, therefore, be unavoidable, in order that it may obtain. Hankins v. Mayor, etc., 64 N. Y. 18; Mark v. State, 97 N. Y. 578; People v. Palmer, 52 N. Y. 83; People v. Mallory, 2 Thomp. & C. 76. An implied repeal only then results when the necessary operation of the later enactment cannot be harmonized with the terms and effect of an earlier act, and extends only to the repugnance. Suth. St. Const. § 138. The Ives pool law relates, as above shown, to the penal aspect of the acts in question, and the repeal of the statute which takes away the civil remedies for the enforcement of a gaming debt would be an unauthorized, rather than a necessary result in solving its meaning. In re Curser, 89 N. Y. 401. Upon a reasonable construction, therefore, both these statutes may be given their proper effect, and inharmony in no way results. People v. Palmer, supra; People v. Crissey, 91 N. Y. 616. The case of Brennan v. Association, 56 Hun, 188, 9 N. Y. Supp. 220, has not been overlooked, but I am unable to follow the ruling there made, after careful consideration, such as the high character of the court announcing the decision calls for.
With reference to any contention that the Ives pool law is in contravention of the constitutional interdiction of the authorization by the legislature of lotteries or the sale of lottery tickets, it is to be observed that every presumption is in favor of the constitutionality of legislative enactments, and every act of the legislature is to be sustained, rather than defeated, unless the language employed plainly precludes every reasonable construction other than that it was intended by the act to infract the organic law. People v. Briggs, 50 N. Y. 553. It is not the province of the courts to nullify the legislative will only because a particular law may be of vicious tendencies, while every constitutional provision remains inviolate. Whether a particular measure is wise or unwise it is the peculiar province of the legislature to decide. If, therefore, the constitutionality of any act is to be successfully challenged, not only must the provisions of the act be in apparent conflict with some constitutional provision which restricts or prohibits the exercise of legislative authority in the particular case (People v. Comstock, 78 N. Y. 356), but every reasonable construction, also, of which the language of the act is susceptible, must lead to the same end (Suth. St. Const. § 331; Sweet v. City of Syracuse, 129 N. Y. 316, 27 N. E. 1081, and 29 N. E. 289). Hence, if the language is susceptible of two construe*535tions, alike reasonable, though conflicting, that construction is to be preferred which will give effect to the act though the other may at first view appear to be a more natural interpretation of the language. Suth. St. Const. § 332. Applying these canons of construction to the Ives pool law, I am of the opinion that it was the intention of the legislature to withdraw existing penal provisions so far as they might apply to pool selling at the times and places specified in the act, and not to legalize such sales. The act, in my opinion, tolerated, but did not authorize,- pool selling. The constitutional interdiction against lotteries and the sale of lottery tickets does not require the legislature to prescribe punitory redress for the conduct of lotteries or sale of lottery tickets. The matter, therefore, rested in legislative discretion. The suspension or repeal or partial repeal, therefore, of existing penal provisions did not contravene any provision of the constitution, while the suspension or repeal and the remaining penal provisions were generally applicable to every part of the state. My conclusion is that, upon the admitted facts, the recovery below was unauthorized, and that the judgments of the general and trial terms of the court below should be reversed, and judgment directed for the defendant for dismissal of the complaint upon the merits, with the costs of this appeal and of the court below.