New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1894-05-13
RACEGOERS MAY BET.
CITY AUTHORITIES NOT TO INTERFERE
WITH POOL-sELLING.
OPINION OF CORPORATION COUNSEL MCDONALD
REGARDING THE LEGALITY OF PLACING

An oplnon was given by the Corporation Couh-
sci of Brooklyn. Albert c. Mcdonald. TO Mayor
Schieren yesterday. in regard to pool-seliihs q"
the racetracks which are brought WITHIN inc
bounds Of Brooklyn by the annexation OF Graves
end He holds IN it that 1t Is not the duty OF the
cty authorities to- interfere with the pool-seiiinS
ION the racetracks allowed by the Ives law ana that
the opinion of Judge Pryor does not condemn inc
part of the law that exempts pool-seiiing on race
tracks from penal provisions. In the opinion MI
Mcdonald says:
after careful consideration, I have reached the
conclusion that Il is not legally the duty OF the
local authorities to prevent. upon the racecourses
or grounds OF the Incorporated racing ASSOCIATIONS
now within this city. the registering OF wagers
nooI-selling or other acts made penal by Sections
g5l and 352 Of the Penal Code This conclusion re-
fers only the limited period. or periods In each
wear during which the established racetracks or
grounds at which. by Chapter 479. laws OF 1891
commonly known the Ives Pool law). races are
authorized TO be conducted. and results because at
those times and in those places by the terms Of the
act mentioned. the provisions OF Sections Soi ana
s52 Of the Penal Code shall not apply.
HOW THE MATTER CAME UP.
1.-THE matter seems to have come into question be-
cause of the recent decision of the Court Of Com
mon Pleas Of New-York City, to the erect that
the Ives Pool law in one feature OF It's real or sup
posed operation. is not constitutional. on 'ex-
animation Of the decision in question am OF the
opinion that accepting II for all that 1t deter
mines It does not condemn or purport to condemn
that part OF the law which suspends or tenn
porarily effaces, the crimnality OF the acts mace
penal by the sections of the Code above mentioned
The case was not criminal prosecution nor ala
1t touch the criminal aspect of the matter. IL
was a civil suit recover. upon promissory note
the consideration Of which was an interest in
pool and a bet with bookmaker at horserace.
The opinion Of the Court states that the precise
point for adjudication was. whether poo-selng
within the meaning Of the prohibition Of Section 10
of Article /. of the Constitution. which says: Nor
shall any lottery hereafter be authorized, or any
sale of lottery tickets allowed within this State
And the conclusion was that the statute referred
10 Chapter 49, laws of 1881 in so far as 1t purpors
to authorize pool-selling, is repugnant to the
constitutional prohibition above recited and is void
and of no effect. But Judge Pryor. in his opinion,
says: The specific crlminality OF the transaction
may De effaced. but it remains unlawful. and all
contracts implicated with IL void by the eX-
press terms of the statute. Judge Bischoff in his
opinion says: The sole question presented is.
whether in view of these facts. payment Of the note
In suit may may not be enforced in law
Applying these canons Of construction to the Ives
pool law am of the opinion that 1t was the nten-
ton of the LEGISLATURE to withdraw existing penal
provisions so far as they might apply TO pooiselng
at the times and places specified in the act and not
TO legalze such sales.
POOLSELLING TOLERATED.
1.-THE act in my opinion tolerated but did not
authorize pooselling The constitutional interdic-
ton against lotteries and the sale OF lottery tickets
does not require the Legislature to prescribe punt
tory redress for the conduct Of lotteries or sale OF
lottery tickets The matter rested in legislative dis
cretion The suspension. repeal, or partial repeal!
therefore. OF existing penal provisions did not con-
travene any provisions Of the Constitution. whle
the suspension or repeal. and the remaining penal
provisions were generally applicable to every part
OF the State"
The Ives pool law provides that races may be
conducted upon any racetrack Of an incorporated
association for not more than thirty days In each
year: that sections 35l and 552 Of the Penal Code
shall not apply to such tracks during the number OF
DAYS during which permitted; that racing
and poolseng shall be confined the tracks where
the races take place. and the days of such races
The effect, however. Of these provisions Is merely 10
placing and recording Of bets as contained IN sec,
Conditions and restrictions. The in effect de.
clares that the sections OF the Penal Code shaI hos
conditions shall exist and the regulations as 70 the
time and place for the selling OF pools Is obviously
but of the restrictions in contemplation OF wnIeh
the operation OF the penal laws Is suspended the
result precisely the SAM as the secIns Cd
pooseiling the times and places mentioned IN the
Ives Pool law from their operation
THE DECISION CONSTRUED.
ut thus appears that the decision of the Court Of
Common Pleas is to the effect that contract for
consideration Of an interest in pool or for bet
with a bookmaker is void and non-enforcible. and
that. constitutonally. the Ives pool law could not
validate such contract But this decision does
not affect the validity and operation Of Other and
cedes its face that the crminaty OF the ransac-
ton may be effaced, leaving any bets or bargains
based on poolsellng or bookmaklng simply VOID ana
but it is only with the criminality or non-crlm
inaty Of the transaction that the police authorities
OF Brooklyn have deal The statute under consid-
Grafton provides that for limited period in specified
places the laws making poolselling or bookmakng
criminal shall not operate. The consttutonaly Of
by any decision. It is the duty Of the local officials
exppessed. and to accept It's provisions as Valid and
operative in the absence OF judicial determination
TO pass judgment on the consttu,onay of the laws,
but the law is by them to be presumed to be valid
BY courts Of competent jurisdiction to be Otherwise
In respect TO the matter In question.
CONFIRMED BY JUSTICE MLENNAN.
1.-The conclusion which have expressed is further
confirmed by the opinion of the Supreme Court of
this State at Special Term he'd in Oneida County
In October last in a suit entitled Thomas d. Reilly
VS. Milton c. Gray. in which the decision of the
Court was rendered by Justice McLennan. In his
opinion in that he carefully and thoroughly
slders the law which we have been discussing. and
thorized lotteries or transactions which were TO be
: regarded as lotteries, 1t was unconstitutional and
void. In conclusion he says: II Is also considered
that Chapter 49, Laws OF 1887. above referred 10.
and commonly known as the Ives Pool law is con-
stutona. valid and binding except in so far as by
is provisions II stemP's to esa1e "a a OF
ton and which the subject Of this investigation;
but that In far the statute attempts to legaliZe
such transactions II is unconstitutional and void be-
cause In conflict with Article ]. Section 10. OF the
Constitution OF the State
THE action Of Reilly VS. Gray brought to
cover the sum of SLIGO paid by the plaintiff the
defendant the 1st day OF August. 1892 for In
terest in French and auction pools, called. which
he purchased on that day the grounds OF the
Saratoga Racing Association, when and where
taih races trials OF speed OF horses were being
conducted In accordance claimed with the
provisions OF Chapter i79 Of the Laws of 1887.
1T will thus be seen that. while the decision OF
Justice McI,ennan condemns the law in far
he considers it purports to legalize and make en-
forcble a civil contract based a consideration Of
poolseng the like. he considers that in all other
aspects the law Is constitutional and valid. II thus
hat he Yard he lot no