7 Nev. 419 | Nev. | 1872
Lead Opinion
By the Court,
The facts of this case, as found by the judge below, are: “ That during the month of April, a. d. 1871, the plaintiff kept a public gambling room in the house of one M. M. McClusky, in Pioche City, * * * * and had therein a public game known as £ faro,’ which he, the said plaintiff, dealt, the same having been licensed according to law. That in the fore part of said month of April, the defendant lost at the said game, kept and dealt by said plaintiff, during one evening, the sum of six hundred dollars; and not having the money in his possession, agreed to pay in a few days; that said amount consisted of checks given by said plaintiff to defendant, to play at the game; and that, in a few days thereafter, and during the same month, the defendant paid to the plaintiff the sum of five hundred dollars of the amount lost as aforesaid, leaving the sum of one hundred dollars still unpaid; that at the time the said sum of five hundred dollars was paid, the defendant again played 'at said game dealt by the plaintiff, and during the evening lost the sum of two thousand dollars. That the sum of twenty-one hundred dollars, lost as aforesaid, is the money for which this action is brought.” Upon these facts judgment was rendered against plaintiff, from which he appeals.
Is money won at a public gaming table recoverable by action in this state? is the only question raised upon the record. ' We con-
But at common law all public gaming houses were nuisances, not only because they were deemed great temptations to idleness, but also because they were apt to draw together great numbers of disorderly persons. 4 Bacon’s Abridgement, 451. It would'therefore seem to follow, that money won in such house by the keeper could not be recovered, because everything connected with or growing out of that which was illegal partook of its character, and was tainted with its illegality. So gaming, which might be innocent itself if carried on elsewhere, would become illegal by being conducted in a place which was condemned by the law. This is an undoubted principle, applicable not only to cases of this nature but to all cases of analogous character. Thus in Badgley v. Beale, 3 Watts, 263, it was held that a marker at an illicit billiard table, who kept the games and received the money bet by the players, was not entitled to recover wages from the owner of the table, the contract of employment being affected with the illegality of the business in which he was employed. There is no doubt whatever that, upon this principle at common law, money won in a public gaming house would not be recovered by the keeper.
Does the statute of this state then, licensing gaming, change the old law in this respect ? We think not. The statute does not pfetend to do more than to protect the keepers of public gaming houses from criminal prosecution when a proper license is procured. Section 2, declaring that, “ The said license shall protect the licensee and his employee or employees against any criminal prosecution for
That the statute of this state expressly authorizes the persons having a license to carry on the game designated, manifestly makes no substantial difference between it and the California act, under which the decisions above referred to were rendered, for it will not be denied that the California license as fully and completely authorized the game licensed, as do those issued under our statute. Clearly, the very object, arid probably the only effect, of the California license was to authorize the game licensed. If they did not authorize the game, what was the object of the license at all ? It is palpable there is not, in this respect, any distinction between the statutes. The decisions are therefore directly in point.
Let the judgment he affirmed.
Dissenting Opinion
dissenting:
It may be that this action could not have been maintained at common law. But the only ground upon which it could have been defeated would have been, the illegality of the transaction, — that a eoifimon gaming house was unlawful and indictable as a nuisance. With this possible exception, the playing at dice and cards ivas not prohibited by the common law, in the absence of deception or fraud; and therefore, it is said, playing at dice, cards, &c., is not malum in se. Case of Monopolies, 11 Co. 87 (b).
Thus the statute Car. II recognizes the common law right of recovery for sums (whatever the amount) won by playing at or with cai’ds or dice, and only restricts such recovery to sums not exceeding ¿6100. See also 1 Phillips, supra, where it was held, referring to another statute, that a sum under ¿610, won at cards, might be recovered. This could not be, if gambling per se and without reference to the illegality of the game was either contrary to good morals or public policy, in so far as the courts, for that reason, would refuse to entertain an action based upon such a contract.
It seems to me that our legislature, the final arbiter on questions of policy and morality, has, by this statute, abrogated the only objection to the plaintiff’s right of recovery, which existed at the common law. The statute expressly provides that the license shall by its terms authorize the licensee to carry on the game. Such a license confers upon and gives to the licensee authority and right to do the very thing we are asked to hold contrary to public policy. See License Cases, 5 Wallace, 462; where the distinction is drawn between a license of this kind, and such as are to be regarded as a mere form of imposing a tax, and as implying nothing except that the licensee shall be subject to no prosecution under the law, if he pays a tax; or the distinction between what is in reality, as well as in mere semblance, a license, and what, though nominally such, is in substance only a special tax. The' provision giving authority in
The court, in the case cited, further say: “ This court can know nothing of public policy except from the constitution and the laws. It has no legislative powers. It cannot amend or modify any legislative act.. It cannot examine questions as expedient or inexpedient, as politic or impolitic. Considerations of that sort must, in general, be addressed to the legislature. Questions of policy determined there, are concluded here.” See also 21 How. (U. S.) 42,5-6 j that “ when the legislature relieves a contract from the im- • puthtion of illegality, neither of the parties to the contract are in a condition to insist upon this objection.” And opinion of Judge Gibson, 1 Rawle, 43.
But it is contended, in effect, that the portion of the statute which in terms relieves this transaction from the imputation of illegality, is so limited and qualified by a subsequent clause, that .licenses issued under this statute can have no further or other operation than those passed upon in the license cases. The clause relied upon for this position reads: “ The said license shall protect the licensee * * * * against any criminal prosecution for dealing or carrying on the game mentioned, in the room described, during said three months, but not for dealing or carrying on any other game than that specifiedÍ, or the specified game in any other place,” &c. This clause does not purport to limit the effect of the statute, or to qualify the sanction expressed, so far as the act done corresponds, in kind, place, and time, with the act liceiised. It simply, out of abundant caution, prescribes to the immunity resulting from the sanction given, limits coextensive with those imposed upon the authority conferred; thus at once restricting the immunity to the game, time and place specified in the license, and extending it to the lighter penalty imposed by the general criminal statute, for common law misdemeanors. It seems rather a violent strain of language to consider a declaration that a license shall protect no other game than the one mentioned, equivalent to a declaration that such protection shall be its only effect; and thus, by mere implication, to nullify a previous clause expressly author
The reasoning of the California cases is that we must adopt this forced and artificial construction of the statute, rather than impute to the legislature an intent to legalize contracts so tainted with’ vice and immorality — an imputation, it is said, as unjust to them as the enforcement of such contracts would be humiliating to the courts. But the legislature is presumed to have known the then existing law of this state : that we had adopted the common law, according to which, bets won at seven-up, poker, horse-racing, and an infinity of other wagers, were valid and enforceable contracts: that we had not enacted or adopted the statutory provisions, elsewhere alnjost universally in force, prohibiting or restricting such gambling, or confining parties playing for money to such sums as they should pay down at the time of the play. If betting at a faro game, licensed and conducted according to the provisions of this statute, is immoral and contrary to the public policy, so is betting at poker and upon horse-racing. It is as humiliating to the courts to enforce the latter as to enforce the former. In giving, then, to the explicit language of the statute its natural force and effect, we only
But, with the wisdom and purity of the sentiments which actuated the legislature, we have nothing to do. Let it be conceded that in this regard both the common law and this statute are as bad as. the sternest precisian ever pronounced them. The worse they are, the sooner will a strict enforcement of them lead to their amendment — a corrective by no means so easily applied to an' assumption by the courts of legislative functions. Eor these reas'ons I dissent from the judgment.