New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1894-05-29
p. J. DWYER DISCHARGED.
DECISION OF JUDGE GAYNOR IN THE
CASE.
HE HOLDS THAT TIE RUNNING OF THE BROOK
LYN HANDICAP DID NOT CONSTITUTE a
LOTTERY AND SAYS TIE ARREST OF


MR. DIVER WAS UNwARRANTED.
Judge Gaynor handed down his decision yesterday
in the of the application for the discharge OF
Philip j. Dwyer. president of the Brooklyn Jockey
Club. on a writ Of habeas corpus sued out In the
proceedings Instituted against him by Peter DE
Lacy. The decision grants the discharge OF the
prisoner who held by Police Justice Wash Tor
the action OF the Grand Jury. The charge against
him of conducting lottery in the case or the
Brooklyn Handicap at Gravesend. Judge Gaynor
holds that horse racing is not lottery and that the
arrest OF the defendant was unwarranted.
The decision "a given in part herewith:
The two recent decisions In civil cases cited on the
argument scarcely apply. The defendant Is accuse.
cfma ese PTGPO saGS Sa Of thu Penal
The undisputed facts are as follows; The deiehiant
association formed under the laws Of this state or
the Incorporation of associations for lnpr9vlhs ,he
breed OF horses. and located in the cry OF nrooR
yn. where Its grounds are. Acting for The associa-
ton. the defendant advertised and organized horSe-
MSy T. IS 1884, "" TRe race Was to be open to ali
thoroughbred horses three years old anu upwArd'
but in order to run, horses had 10 be enersI on me
associations books An entry fee Of $50 was
ca of hdrses ,Sdrawn before the The
to be for a stake OF 5000 of which $500 was
5000 to the third. This stake 20 be made mp
by the association adding to the tota, of the entry
what the complainant calls a lottery. >,
There Ia no foundation for his contention II -
legal definition. A lottery depends on lot or chance.
ch n as the Of wSe OF G the this
horseowners do not pay sum to win larger sum
test OF skill endurance and speed upon which The
stake depends. With the matter as debltabe
make laws: am bound 70 administer the Jaws az
find them.
Judge Gaynor then goes into the question ns 20
what a lottery Is under the Jaws OF this State
The first statute concerning lotteries was the
81 7, ted UeualfIpS
nil lotteries not licensed by the Government After
INDEPENDENCE namely. In 1873. similar act was
passed forblddng private lotteries ana giving the
State monopoly OF the business. From mat
time down TO the making OF the state Constitution
OF 1921 there were many bills introduced into tho
LEGISLATURE no less than forty-four Of which be-
came acts. for the establishment and management
OF lotteries for the raising OF pubic revenue As
these acts show. money was thus raised TOT OPEN
Ing and improving great roads for improving the
navigation OF the Hudson River for orphan asy-
lums. boards OF heath and the Ike. Lotteries
were favorte means OF raising money for educa-
tional purposes. and Union College was endowed by
means OF a State lottery. This mixture OF morals
and lotteries and the elevation OF the one by means
OF the other. continued until the adoption OF the
Constitution OF 1921. which contained the provision
that no lottery should hereafter be authorized IN
this State" and this prohibition has remained IN
the Constitution through the subsequent revision
and amendments OF that instrument The DEBATE
over II In the constitutional Convention OF lS-l was
interesting and enghtenng. Even Chancellor Neh'
rather opposed the prohibition on the ground 'h''
lotteries were the best for the state 10 get
money for rover from pursc-proud fnisers ana
spcndthrlrs. Continuing. the decision reads:
4 proposition to add to the prohibition asl'n',
lotteries another forbildng horse racing was Nol;
down In the convention 40 one thet" rNri @ -,
Of horse race for stake BONG lo'.', n NH
such suggestion seems .,F 10 III Ven, into eject
ms prlg 4
10, rcnal siat,ir concerning horse rae VS. passed
nrsi pe''t' dc,rcI among other things the
ing OF horses FOR any bet or stake pnp'.c 'uiS
ance ana prescribed penalties against any one TAX
The stakes. Thus there existed two dlHtnS' ~
legislation on distinct subjects TWO n's''n ~,
svstrTns Of statutes. the one on lotteries ana me
other on betting and gaming no one evsr Sess','
ing that the statutes In me one S}S,,'n rus rs hv
or covered the offences created ana IoV"IrH W
those VI the other That was 'eii un,l "'H clrc
there Is NJ foundation ior Wnu,y'',' ~, 80, ~ %,
horses for stakes wa made penal by tne s'au, "'
sg as , has i been be sg an" down the same Inc
d,stinc, iegisation Is now found in Section S2 q
nf r 1arnr or trial Of speed horses other
animals Tor any bel siakr or re~af fl,s ~ his
case namely the racng Of horses for contributed
Int by Chapter 49 Of the Laws Of i~7 the opera
,l5n OF this secton suspen led during thry nays
IN each yea On the al and the DAY Of the
race on which the alleged offence ~ prelcat'I vs.
OF those dSy y. The the fo' arcci for any
actual offence. bu, being apparently bent on having
stake lottery. and accused him. az mas I,''h
seen under section 252 OF the Penal Code. when j.
found I'm the chapter on "Iottcrics ana makes me
contriving proposing and maintaining oi "a ly'
,crv "A crime The Legislature having spccln'hiy
singled ont racing for stakes. ana made u MS
tinct crime and prescribed punishment Tor H. II
cannof he called. some other crime ana punished rs
such Racing horses for stakes may b. baa' Du'
| unlawfu! arrests are worse.
warronied II was an exercise OF arbitrary power
AMI history teaches that have more 10 iri
from arbitrary power than from all species o.
gambling combined.
The prisoner Is discharged