State v. Stripling , 113 Ala. 120 ( 1896 )

McCLELLAN, J.

The question involved in this case is the constitutionality of an act approved February 26, 1889, “For the better suppression of gambling.”-Acts 1888-89, p. 45. Under this caption, the act prohibits and denounces as criminal the selling of any pool or ticket, or the making or taking of any wager, or the entering into any transaction whereby money or other thing of value may be won or lost upon any horse-race, prize fight, drill, base-ball game or other contest of any kind not occurring in this State.

The first ground of attack upon the constitutionality of this statute is, that the subject with which it deals is not expressed in its title, and upon this point we adopt • the brief of counsel for appellant as the opinion of the court: The title of act is “the better suppression of gambling, ’ ’ and it authorizes the inclusion in the body of the act all provisions appropriate to “better suppress” whatever may be justly included in the term “gambling.” If the things included in the body of the act and forbidden by it are “gambling,” then there is nothing for the objection to stand on ; for the subject is clearly expressed in the title. This court has never held that the title must specifically name or describe every element of the subject. It is sufficient if the things regulated or forbidden in the body of the act fall within the generic purpose expressed in the title, and relate to it. Details are matters of legislative, not of judicial discretion, within these limits.-Ballentyne v. Wickersham, 75 Ala. 537.

■ The inquiry then narrows itself to this, are the acts forbidden “gambling” in the common and ordinary acceptation and meaning of the word. It has no technical or legal meaning distinct from its common meaning. Gambling in its ordinary signification means, “To play a game, especially a game of chance, for stakes; to risk money or other possession on an event, chance or contingency ; pretence to buy or' sell depending upon chance variations in prices for gain, ” &c.-Standard Dictionary, Yol. 1, p. 742. “To practice gaming ; to play for money, or any other stake or prize; to game.”'-Worcester’s Dictionary, p. 603. “All contracts between two or more persons, whereby they agree to risk their money or property upon contingency or chance, which in the nature of things may or may not happen, and whereby the one party will be the gainer and the other a loser, are deemed to be gambling contracts.” — 8 Am. & Eng. Encyc. of Law, p. 993. See also Bras’s Appeal, 55 Pa. St. 294; Bell v. State, 5 Sneed, 507; Wilkinson v. Gill, 74 N. Y. 63; Shropshire v. Glascock, 31 Am. Dec. 189; Bishop on Stat. Crimes, § 858; Wharton’s Criminal Law, § 1465. Whether or not betting on a horse-race is a criminal offense, it is certainly a gambling or wagering contract under our Code.-Code of 1886, § 1742.

Betting on horse-racing has often been held a game within the meaning of statutes against gaming,-(18 Maine, 337, and numerous authorities cited; 8 Am. & Eng. Encyc. of Law, p. 1038, note 5); ancl particularly selling pools on them-a leading case per Cooley, J., People v. Weithoff, 51 Mich. 203. Similar decisions have been rendered relative to the other games or sports mentioned in the present statute.-Tollet v. Thomas, L. R. 6 Q. B. 514; Holden v. Fitchburg R. R. Co., 129 Mass. 271; Edwards v. State, 8 Lea, 411.

Gambling in its legal as well as popular signification, includes bets and wagers such as the act refers to. Whether or not such “gambling” is punishable as a criminal offense of course depends upon the phraseology of the gaming statutes. The act is none the less “gambling” in the eye of the law, because the statute does not make it a criminal offense. The legislature in the exercise of its wide discretion, may punish some species of gaming or gambling by penal enactment because of its injury to morals, &c., and yet not make such provisions for the other acts which are fewer in number and less detrimental; but the act of “gambling” which is not punished criminally is none the less “gambling” because it is amenable only to the civil law. One of the most pernicious forms of gambling is ‘ ‘speculating in futures, ’ ’ on margins, and settling differences only. It lias been the source of great injury to morals and been the theme of wide-spread phillipics against “gambling,” both in the press, pulpit, courts and legislative halls — but it is not a criminal offense. Would any one say that such practice was not included in the word “gambling,” because it has not heretofore been made the subject of a penal statute? Would any one be surprised to find a provision against it, under the title of an act for the “Better suppression of gambling?” Clearly it would be included in the spirit, terms and title of such an act. So, too, of the offenses now punished criminally by the present act.

It will be noted that the word “gambling” is not found at all in our Criminal Code. That Code uses the term “gambler” only once, and that in section 4047. Wherever it makes provision for such acts of “gambling” as it deems worthy of criminal punishment, it uses the woi’d game or gaming. The Civil Code, however, speaks of “gambling and wagering contracts.” — §§ 1742, 1743. The acts made offenses by the present statute are already made “gambling contracts” under the Code; and the act in question simply extends the criminal law over them. It was urged in the court below that because our law-makers had not used the word “gambling” in the penal statutes heretofore, but only the word “gaming,” &c., that one in reading the title of an act “for the better suppression of gambling, ’ ’ would expect to find in the body of the act only provisions against such practices or kindred practices as had been heretofore included under the term gaming in the Criminal Code. This is a non sequitur for several reasons: 1st. The State having already denounced the practices now included in the present statute as “gambling contracts” by the provisions of Civil Code, the logical inference from the departure from the long use of the word gaming, and substituting “gambling” for it, would of itself denote an intent in a penal statute to punish acts not up to that time included in its penal statutes as “gaming.” 2d. Because the legislature prior to this enactment had made penal only certain kinds of gaming, and used the term “gaming” in reference to them, cannot restrict the meaning of the word “gambling” in a subsequent penal statute, to offenses such as had been theretofore denounced as “gaming.” If the present act had not specified the .acts it punished, and, had used the word “gambling” games or contracts, there might possibly be some plausibility in the argument, but in the present case there is nothing for the argument to rest on that the word “gambling-” .had a fixed and well defined legal meaning, which restricted its meaning to the class of offenses, or of a like nature, as were already punishable ; and that the word was used in such a sense, and not in its ordinary or popular signification, in this statute. The act is not open to the objection that its subject is not clearly expressed in its title.

It is further insisted that the act is violative of the Federal constitution for that it is an effort by the legislature to interfere with inter-state commerce ; its second section forbidding any person in this State to act as the agent of any other person in placing outside of this State for such other person any pool or ticket, or other device or chance, or wager, or to do anything in this State to aid any other person in entering into any transaction whereby he may win or lose money or other valuable thing upon any horse-race, prize fight, drill, base ball game, or other contest taking place outside this State. We are unable to see how this is an interference, or has anything to do, with inter-state commerce. But if it touches such commercé at all it is in such way as is within State competency. The State has a right to protect the lives and morals of its people against acts which threaten them even though such acts can only be accomplished through some instrumentality of inter-state commerce. And it might as well — indeed with less want of force— bo said that a law of the State inhibiting agencies here from procuring from other States and disseminating here obscene literature, or criminal libels upon our citizens, would be an unwarranted interference with commerce between the States. The right of the State to enact and enforce such law's, assuming they touch upon such commerce, is supported by the same principle which upholds State statutes forbidding the running of trains on Sunday, and it cannot, we think, be doubted that such acts are free from the constitutional objection suggested.

The act in its declaration of the offense and imposition of penalties has no reference to or bearing upon any act done beyond the' limits of the State. Its operation is solely upon acts done within the State, and it is upon all persons doing those acts in the State whether as principal or agent. The fact that similar acts done here, either by citizens or non-residents, with respect to contests of speed, skill and the like occurring here are not denounced as crimes by this act, is of no consequence. That was a matter entirely within legislative discretion, and many considerations might be conceived for the exercise of that discretion as it has been exercised in the act. The inhibitions of the statute have nothing to do with anything occurring beyond the State, as we have stated, but only upon acts done here ; and they apply with equal force to citizens of this and all other States.

The act, we conclude, is constitutional. The demurrer to the indictment below should have been overruled. The judgment of the city court sustaining it is reversed, as also the judgment discharging the defendant upon quashing the indictment. A judgment will be here entered overruling said demurrer, and vacating the judgment quashing the indictment, and discharging the defendant. The cause will be remanded.

Reversed and remanded.