63 A. 505 | N.H. | 1906
To the Supreme Court:
The governor and honorable council, being convinced that certain persons intend to maintain a race-track and to conduct races thereon in this state, in order to induce others to resort thereto for the purpose of engaging in pool-selling, bookmaking, and other forms of race-track gambling, and believing that unless such proceedings are already forbidden by law it will be our duty to call a special session of the legislature at once to act on the subject, respectfully require the opinions of the justices upon the following questions, so that the governor and council may correctly determine their duty in the premises.
(1) Whether the corporation created by chapter 232 of the Laws of 1905, under the name of the New England Breeders' Club, is empowered to keep, or let, any house, shop, or place resorted to for the purpose of pool-selling, bookmaking, or any form of betting or gambling upon the result of such races and contests of speed, skill, and endurance as it is by said chapter authorized to conduct; or to suffer any person to sell pools, make books, or in any other way bet or gamble upon the result of such races and contests, in any house, shop, or place under its care or control.
(2) Whether any such action, if not authorized, is forbidden by law.
JOHN McLANE, Governor.
F. S. TOWLE, CHARLES M. FLOYD, JOSEPH W. HOWARD, Councilors. EDWARD G. LEACH, C. H. GREENLEAF,
To His Excellency the Governor, and the Honorable Council:
The facts as to the existing situation, communicated to us under date of February 22, 1906;, in connection with the questions submitted, establish our constitutional duty to answer, although the subject-matter of the inquiry does not directly relate *626
to the power or duty of the body making the inquiry. "The 74th article [of the constitution] authorizes each branch of the legislature, as well as the governor and council, to require the advice of the justices of the supreme court upon important legal questions pending in the body entitled to the advice, and awaiting the consideration and action of that body in the course of its legislative or executive duty." In re School-Law Manual,
The substance of the questions submitted is whether the New England Breeders' Club is authorized by its charter to maintain a common gambling place or permit the use of its premises as such, if the promoting or permitting of betting, bookmaking, or pool-selling upon horse races constitutes that offence. It is more convenient to consider first the second question: whether the acts described in the first question are forbidden bylaw. The only section of the statute directly applicable is as follows: "If any person keeps any house, shop, or place resorted to for the purpose of gambling, or lets any such place for that purpose, or suffers any person to gamble in any way in any such place, which is under his care or control, he shall be fined not exceeding two hundred dollars, or be imprisoned not exceeding one year." P. S., c. 270, s. 6. If pool-selling, bookmaking, or betting upon horse races is gambling within the meaning of this section, the second question must be answered in the affirmative.
Words in a statute are to be construed according to the common and approved usage of the language, unless they have acquired a peculiar and appropriate meaning in the law, or from the context or manifest purpose of the legislature it is apparent a different meaning was intended. P. S., c. 2, ss. 1, 2. It might be difficult *627
to maintain the proposition that to bet, purchase and sell pools, and make books upon the racing of horses was not "to gamble in any way," in the common acceptation of the term. Pool-selling and bookmaking are described as forms of gambling by writers of authority. See N.Y. Const., art. 1, s. 9; People v. Fallon,
"Pool-selling" or "bookmaking," in connection with the racing of horses or otherwise, are not defined or denounced in terms in the public statutes, and we think are not mentioned at all except in chapter 232, Laws 1905. In Barker v. Mosher,
The terms "gaming" and "gambling" are in their criminal sense synonymous (Web. Dict.; Cent. Dict.; 14 Am. Eng. Enc. Law 666), and have been used interchangeably in our statutes. R. S., c. 220, ss. 3, 4; G. S., c. 254, ss. 6, 7, 8. The distinction between "betting" and "gaming" is that gaming always includes a wager, while betting is not gaming unless the wager be laid upon a game. "It is the betting upon the game that constitutes gaming, and those game or gamble who thus bet. The word `game' is very comprehensive and embraces every contrivance or institution which has for its object to furnish sport, recreation, or amusement. Let a stake be laid upon the chances of the game, and we have gaming." Cooley, J., in People v. Weithoff,
But the history of the legislation against gambling shows that the word includes, instead of excludes, the racing of horses. Originally, at common law, gaming was not an offence; but it was regulated by statute in England long before the independence of this country. 4 Bl. Com. 172. The statute of 16 Car. II (c. 7; 1664), was entitled "An act against deceitful, disorderly, and excessive gaming," and applied to "playing at or with cards, dice, tables, tennis, bowls, skittles, shovel-board, or in any cock-fightings, horse-races, dog-matches, foot-races, or other pastimes, game, or games whatsoever." Section 2 prohibits fraud in the matters specified, while section 3 denounces, as immoderate and excessive, gaming whereby more than one hundred pounds should be lost at any time or meeting, in playing "at any of the said games, or any other pastime, game, or games whatsoever," or by betting "on the sides or hands of such as do or shall play thereat," and provides that the loser shall not be compelled to pay the sums so lost, and that the winner shall forfeit treble the amount won above said sum, one moiety to the king and one to the prosecutor. The statute of 9 Anne (c. 14; 1710), entitled "An act for the better preventing excessive and deceitful gaming," provided (s. 2) that "Any person . . . who shall at any time or sitting, by playing at cards, dice, tables, or other game or games whatsoever, or by betting on the sides or hands of such persons as do play at any of the games aforesaid, lose to any one or more person or persons so playing or betting in the whole the sum or value of ten pounds, and shall pay or deliver the same, . . . shall be at liberty" within three months to sue for and recover the same. If the loser did not within said three months sue therefor, any person might sue and recover treble the amount, one moiety for the use of the prosecutor and one for the poor of the parish. The statute further provided (s. 5) that if any person should in like manner, "in playing at . . . any of the games aforesaid, . . . at any one time or sitting" win more than ten pounds, he might be indicted therefor, and upon conviction should "forfeit five times the value of the sum or sums of money or other thing so won." Although horse races were not expressly mentioned in the latter statute, it was determined in England that they were within the *630
mischief of the act; and in view of their inclusion in the statute of Charles II, it was held that the word "games" included pastimes or sports of this description. Goodburn v. Marley, 2 Str. 1159; Lynall v. Longbothom, 2 Wils. 36; Blaxton v. Pye, 2 Wils. 309; Brown v. Berkeley, Cowp. 281; Whaley v. Pajot, 2. B. P. 51; Thorpe v. Coleman, 1 C. B. 990, 1000; Tollett v. Thomas, L. R. 8 Q. B. 514, 517. These statutes, being adopted and in force while this state was a royal province, if adapted to our conditions became part of the common law of the state. Meehan v. Bachelder, ante, pp. 113, 114; State v. Saunders,
In 1842, in chapter 220 of the Revised Statutes, three sections (ss. 3, 4, 5) were adopted which are the foundation of the sections now under consideration. The two latter sections, like the statute of Anne, punish not the gaming, or the betting upon the sides or hands of those who are gaming, but the winning by such means. They appear to have been adopted from section 14, chapter 50, Revised Statutes of Massachusetts, the original of which was enacted in 1742. Grace v. McElroy, 1 Allen 563, 566; Ancient Char. Laws Mass. Bay, c. 218. The latter statute is in the language of the statute of Anne, except that instead of denouncing the winning of sums above ten pounds at any one sitting, it punishes the winning by playing, or by betting on the sides or hands of such as do play, of any sum or sums of money, or any valuable thing whatsoever. Our present statute must have used the words "any game" in the sense they were used in the acts from which it was derived. It is a familiar principle, that when the legislature adopts a statute from another jurisdiction it adopts as its meaning the judicial interpretation which has been put upon the words used, unless it appears that a different meaning was intended. Parsons v. Parsons,
We are unable to discover in chapter 232, Laws 1905, evidence of an intention to authorize the grantees or other persons to do upon the grounds of the corporation acts which are forbidden elsewhere. The corporation are authorized to hold races and contests of speed, skill, and endurance, and to offer purses, prizes, premiums, and sweepstakes (s. 3). So by implication are other associations. Laws 1895, a. 73, s. 1. The contesting for a prize or premium offered by another, which the one offering must lose in any event, is not gaming, either in the contestants or in the one offering. Harris v. White,
The original of these sections is to be found in section 17, chapter 570, New York Laws 1895. The New York constitution provides (art. 1, s. 9): "Nor shall any . . . pool-selling, bookmaking, or any other kind of gambling hereafter be authorized or allowed within this state." Under this provision and the general principle that the legislature could not be presumed to have intended to violate the constitution, it was held in New York that the acts specified still constituted a crime, and that the only effect of the provision was to reduce the punishment from that prescribed by general law to the recovery in the civil action of the value of the money or property wagered. People v. Fallon, *632
If the sections were intended to exempt from criminal punishment the persons offending upon the grounds of the corporation, the legislation would not be a general law applicable to particular places (State v. Griffin,
No title can be acquired to any money or property by gambling or betting. P. S., c. 270, ss. 15, 16. A recovery in a civil action for property against one without title thereto is in no sense a punishment for the possession of it. While by the word "penalty" may be understood punishment inflicted by law for its violation, such is not its only definition. It includes also an equivalent by way of damages for a civil wrong. Bouv. Law Dict. The latter meaning is applicable to the remedy given by these sections. It would seem more probable, in view of the constitutional rule of uniformity prevalent in this state and the general purpose of the act, that the two sections were understood by the legislature to give a civil remedy to the party injured, leaving the criminal remedy of the state unaffected. There may be other considerations supporting this conclusion, but it is not now necessary to express an opinion whether the view taken in New York or that which would ordinarily control in New Hampshire should prevail. The language must be interpreted in one way or the other. Under either construction, the acts specified are offences against the law and constitute illegal gaming.
Upon the assumption, therefore, that bookmaking and pool-selling are merely forms of betting, we are of the opinion that chapter 232, Laws 1905, does not empower the New England Breeders' Club to promote or permit upon their grounds betting of such character upon the races and contests of speed, skill, and endurance which they are authorized to conduct, and that to promote such acts is forbidden by the law of the state.
FRANK N. PARSONS. WM. M. CHASE. REUBEN E. WALKER. GEORGE H. BINGHAM. JOHN E. YOUNG.
March 13, 1906.
*1