Irving v. Britton

PRYOR, J.

The cause of action admitted by stipulation of the parties is a transaction in pool selling and bookmaking on a horse race, and, if such pool selling and bookmaking be illegal, the plaintiff is barred of recovery by the immemorial and salutary maxim that "ex turpi causa non oritur actio.” Gray v. Hook, 4 N. Y. 449, 455; Hull v. Ruggles, 56 N. Y. 424. By sections 351 and 352 of the Penal Code, pool selling and bookmaking on a horse race are denounced as crimes, and punished by fine and. imprisonment. But plaintiff contends that the pool selling and bookmaking exhibited in the case are authorized by the act of 1887, commonly called the “Ives Pool Bill;” and, if so, then, beyond question, the action is well brought. That the effect of the Ives bill, if a valid enactment, is to legalize such pool selling, is inevitable upon the provisions of the statute, and is settled by authoritative adjudication. Brennan v. Association, 56 Hun, 188, 9 N. Y. Supp. 220; Bish. Writ. Law, § 104a. Conceding so much, the defendant answers that the Ives bill is a nullity, because repugnant to section 10, art. 1, of the constitution, which says: “¡Nor shall any lottery hereafter be authorized or any sale of lottery tickets aEowed within this state.” Whether, within the meaning of this prohibition, pool selling and bookmaking on horse races be lotteries, is the precise point for adjudication.

By incorporating the interdict of lotteries in the constitution, and associating it with the fundamental guaranties of life, liberty, and property, the people of ¡New York signalize by the most emphatic manifestation their sense of the enormity of the evil they so seek to suppress. That evil consists in the temptation and faculties afforded by the lottery for the indulgence of the passion of gambling, —an indulgence, by all experience, as inimical to the well-being of the state as of the individual. Gambling" is the mischief against which the prohibition of the constitution is leveled; and it is “the office of the judge to make such construction as will suppress the mischief, and advance the remedy, and to suppress all evasions for the continuance of the mischief.” Magdalen College Case, 11 Coke, 66b-79a; Wilkinson v. Gill, 74 N. Y. 63, 67. The language of the constitution is generic, not specific; not one species of lottery, but all lotteries, are proscribed. What, then, in the sense of this provision of the fundamental law, is a lottery? In the jurisprudence of New York, at least, the import of the term is not open to doubt or dispute, for its definition is established as well by legislation as by the adjudication of the courts. “A lottery is a scheme for the distribution of property by chance among persons who have paid or agreed to pay a valuable consideration for the chance, whether called a lottery, raffle or gift enterprise, or by some other name.” Pen. Code, § 323; People v. Noelke, 94 N. Y. 137. “Where a pecuniary consideration is paid, and it is to be determined by lot or chance, according to some scheme held out to the public, what and "how much he who pays the money is to receive for it,—that is a lottery.” Hull v. Ruggles, 56 N. Y. 424; Kohn v. Koehler, 96 N. Y. 367. Accordingly, in Governors of Alms House v. American Art Union, 7 N. Y. 228, it was adjudged that “an annual distribution by lot among the members of an art union of works of art purchased by their subscriptions is a lottery, within the meaning of the constitution.” In Hull v. Ruggles, supra, it was so held of a scheme for selling packages of candy, in some of which were tickets entitling to a prize and in others not. So, in Negley v. Devlin, 12 Abb. Pr. (N. S.) 210, of a ticket entitling to admission to a concert, “and to whatever gift might be awarded to its number.” So, in Wilkinson v. Gill, 74 N. Y. 63, of “any game or device of chance in the nature of a lottery,” the chief judge saying that “the courts have uniformly looked beyond the mere form of the transaction, and sought out and suppressed the substance itself.” Equally illustrative of the principle of a lottery are the cases wherein the transaction was adjudged not to be a lottery. Thus, in People v. Gillson, 109 N. Y. 389, 402, 17 N. E. 343, the scheme was held to be no lottery, because not involving “the slightest element of chance.” Similarly, in Kohn v. Koehler, 96 N. Y. 362, 368, the scheme was declared not a lottery, because the property “was not raffled for or distributed by lot or chance.” From all the cases these are collected as the constituent elements of a lottery, namely: First, an expedient held out to the public; which, secondly, for a pecuniary consideration, offers the possibility and promise of a gain, not the product of the outlay, but contingent merely upon a designated chance event. As the name imports, the lot or chance is the essential property of the unlawful enterprise, and the allurement to the public the incident that aggravates its mischievous quality. Being a species of gambling, so extensive in its influence, and so fatal in its effect, the people, by provision in the organic law of the government, forbid its presence or operation within .the limits of the state.

The method of pool selling found by the trial court is as follows:

“A list of horses, as competitors in each of the said races, was placed on an indicator in open view, and to each horse was attached a number, a clear space being reserved for the name of each horse, with a separate dial attached, which showed the number of times the horse had been chosen; and the defendant, for the purpose of investing money on certain horses in said races, purchased a card or receipt, commonly called a ‘ticket,’ stating at the time the horse upon which he purchased the card or ticket, which ticket had on its face a number which corresponded to the number attached to the name of the horse on the indicator, the number being used merely to facilitate business, and having no other significance. When the purchase had been made, the pool indicated the whole number of cards, receipts, or tickets sold or taken, shown upon an indicator placed in the open view, and which was done from time to time as each card, receipt or ticket was pm-chased or taken. When the pool was closed, the total amount invested on the different horses, or the amount of the different cards or tickets purchased or taken on the different horses, was added together and shown on a different dial, in the open view, called the ‘total,’ and the total constituted the pool. The total, less the commission of the person conducting the pool, was divided in equal sums, and was paid to the persons having selected cards, tickets, or receipts on the winning horse, upon presentation of their cards, tickets, or receipts. Any number of persons, acting separately, could choose any horse in the race, and the number of cards, tickets, or receipts sold or taken on each horse was unlimited. Any person could buy or take as many cards, receipts, or tickets on each horse, or upon as many horses, in the race as he chose.”

Tested by either criterion, whether by the definition of the courts or of the statute, the process set forth is in every essential a lottery. By it, “for a pecuniary consideration, is determined by lot or chance, according to a scheme held out to the public, what and how much he who pays the money is to have for it.” Hull v. Ruggles, 56 N. Y. 427. And it is “a scheme for the distribution of property by chance among persons who have paid or agreed to pay a valuable consideration for the chance.” Pen. Code, § 323. That the event of a race is a contingency dependent upon chance is a self-evident proposition. 1 Edmonds’ St. at Large, 614, § 8. Indeed, were the result susceptible of infallible anticipation, betting on a horse race would be as senseless and futile as upon the rising of the sun or the succession of the seasons. It is the element of chance, and the uncertainty of the event alone, that stimulate and support the wagers of the competing bettors. True, fraud may make the result a foregone conclusion; but then fraud is a circumstance in the calculation of chances by those not in the swindle, and fraud of itself would expose the transaction, though legal, to the condemnation of the law.

The decision of the learned trial judge upon the legality of pool selling appears to have been affected by the impression that the Ives bill determines it "to be “in the line of public welfare.” And yet that very act denounces pool selling at any other place or time than on a race course and race day as a felony, and punishes it by confinement in the state prison. How the same thing can be a legal and laudable pastime at Sheepshead on a race day, and still be an infamous offense at all other times and at all other places, we ow-n our inability to understand. The legislature may be criticised for inconsistency, but is not amenable to the malediction imprecated upon "them that call evil good.” Not by principle only, but by authority as well, we are sustained in the conclusion that pool selling is a lottery. In State v. Lovell, 39 N. J. Law, 458, the point was expressly adjudicated by a tribunal eminent for learning and ability; and at a special term of our own supreme court the same result was reached by Mr. Justice McLennan in an argument of convincing cogency. Reilly v. Gray, unreported. See McLanahan v. Mott, 73 Hun, 131, 25 N. Y. Supp. 892; Horner v. U. S., 147 U. S. 449, 13 Sup. Ct. 409; U. S. v. Ziesler, 30 Fed. 499; State v. Clarke, 33 N. H. 329; Tollett v. Thomas, L. R. 6 Q. B. 514; U. S. v. Wallis, 58 Fed. 942. In Brennan v. Association, supra, the constitutionality of the Ives bill was not suggested for discussion or decision, and hence the case is not to be accepted as implying a recognition of the validity of the statute. The conclusion is that the statute (chapter 479, Laws 1887), in so far as it purports to authorize pool selling, is repugnant to the prohibition of lotteries in section 10, art. 1, of the constitution, and is void and of no effect.

Whether the act be equally inoperative to legalize bookmaking is a question presented and argued by counsel, but which requires no decision; since, in any event, the judgment must be reversed. The consideration for the note in suit was partly an interest in the pool and partly a bet with a bookmaker, but how much of either is not apparent. The case, then, is of a contract avoided by partial illegality in an entire and indivisible consideration. Bank v. King, 44 N. Y. 87. We should not forbear to remark, however, that, as the act of 1887 does not purport to validate bookmaking, but only exempts it from the operation of sections 351, 352 of the Penal Code, the illegality of it is obvious and inevitable from the provisions of the Revised Statutes against betting and gaming. 1 Edmonds’ St. at Large, 614, § 8. The specific criminality of the transaction may be effaced, but it remains unlawful; and all contracts implicated with it are void by the express terms of the statute. Judgment reversed, and judgment directed for the defendant, dismissing the complaint upon the merits, with the costs of this appeal and of the court below.

DALY, O. J., concurs.