Opinion
Submitted October 5, 1896
Decided October 20, 1896
Benjamin Steinhardt for appellant.
John D. Lindsay for respondent.
The relator was brought into the New York Court of General Sessions by a bench warrant issued upon an indictment for pool-selling, in violation of section 351 of the Penal Code, and committed to the custody of the respondent. The writ was issued to test the constitutionality of that section, and was based upon the theory that it was invalid.
The appellant claims that that section of the Penal Code is unconstitutional upon the grounds:
1. That it is in contravention of section 9 of article 1 of the Constitution of the state, which declares: "Nor shall any lottery, or the sale of lottery tickets, pool-selling, book-making, 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;"
2. That it is in violation of section 17 of article 3, which provides: "No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law, or part thereof, shall be applicable, except by inserting it in such act."
The contention of the appellant is that chapters 570, 571, 572 and 573 of the Laws of 1895 should be construed and treated as a single statute; that as section 8 of chapter 570 authorizes trotting and fair associations to conduct races, and in section 11 provides that the maintenance of a racecourse shall not be construed as a violation of any of the provisions of chapter 9 of title 10 of the Penal Code, or the provisions of any penal statute not contained in that chapter, it falls within the inhibition of section 9 of article 1 of the Constitution, and is, consequently, void.
It is also further contended that as that chapter is void, it follows that the succeeding chapters are also void.
A careful examination of chapter 570 fails to disclose any provision authorizing pool-selling, book-making, or any other kind of gambling, unless it be held that the authority conferred upon the organizations mentioned to hold trotting or running race meetings for prizes or purses, is gambling within that provision of the Constitution. That a statute authorizing racing for purses or prizes is gambling within the intent and spirit of the provision referred to, must, to say the least, be regarded as doubtful. ( Harris v. White, 81 N.Y. 532.) But we do not deem it necessary to determine that question at this time, as it seems manifest that the contention of the appellant that if chapter 570 is unconstitutional, it follows that chapter 572, which amended section 351 of the Penal Code, is for that reason invalid, cannot be maintained. Presumptively chapter 572 is valid, and being a separate act, if it is not in contravention of some provision of the Constitution, should not be regarded as void. We think we would not be justified in holding that these several acts are so connected, dependent and interwoven that the legislature would not have passed chapter 572 independently of the other chapters referred to, or that they cannot be treated as separate and independent acts without defeating the object of the legislature. It follows, therefore, that this claim of the appellant cannot be upheld.
Second. The contention that this act is void under the provisions of section 17 of article 3 of the Constitution cannot, we think, be sustained. Chapter 572, which is an amendment of section 351 of the Penal Code, provides for the punishment of persons who engage in book-making or pool-selling at any time or place. The portion of the statute which is claimed to be in contravention of the Constitution is that which provides that any person who aids, assists or abets in any manner in any of the acts which are forbidden by that section is guilty of a felony, except when another penalty is provided by law, and that when an exclusive penalty is provided by law for any act therein prohibited, the permitting of the use of premises for doing the act shall not be deemed a violation thereof or of section 343 of the Penal Code.
Section 351, as amended, does not, we think, enact that any other existing law shall be applicable. The provisions of that section are to the effect that it shall apply only in cases where no other penal law is applicable. The purpose of that provision was not to make existing laws applicable in the cases mentioned therein, but to exclude from its operation such cases where other provisions had been made. No other existing law is made a part of that statute. Its provisions exclude from its operation all acts where a different penalty had been provided. In other words, it defines its scope and effect by excluding from its operation any offenses that may have been included in the language employed which are punishable by any then existing law.
In Curtin v. Barton ( 139 N.Y. 505) chapter 342 of the Laws of 1892, which was an act to establish a local court of civil jurisdiction in the city of Syracuse, was under consideration. That act provided that such court should have the same jurisdiction over the persons of defendants as was possessed by Justices' Courts of towns under certain provisions of the Code of Civil Procedure, and it was held that that statute was not obnoxious to the provisions of the Constitution now under consideration. The current of authority in this court has settled the question adversely to the claim of the appellant. ( People ex rel. v. Lorillard, 135 N.Y. 285; People ex rel. v. Banks, 67 N.Y. 568; People ex rel. v. Squire, 107 N.Y. 593. See, also, People ex rel. v. Hayt, 7 Hun, 39; Wells v. City of Buffalo, 14 Hun, 438; Bonnell v. Griswold, 89 N.Y. 122; Weinckie v. N.Y.C. H.R.R.R. Co., 39 N.Y. St. Rep. 584; People v. Learned, 5 Hun, 626; Hathaway v. Tuttle, 12 Weekly Dig. 240.)
The act amending section 351 is entirely independent of the other acts referred to, and at most provides that where there is an existing law upon the same subject, certain of the provisions of section 351 shall not be applicable. The authorities cited seem to be decisive of this question, and to the effect that the amendment under consideration is not in conflict with the provisions of section 17 of article 3 of the Constitution.
We think it cannot be fairly said that the provisions of this statute are in conflict with any of the provisions of the Constitution, and, hence, should be upheld and the order appealed from affirmed.
All concur.
Order affirmed.