New-York tribune., 1908-01-02
RACETRACK GAMBLING.
As amended in 1895, the constitution (Article
l. section - provides:

A amended
! l, section - provides:
cts. pooseing. bookmaking or any other klnd or
this state and the Legislature shall pass appropri-
ate laws prevent offences against any of the
| provisions of this section
Following the adoption of this provision the
| Legislature in 1885 amended the Penal Code
| (Secton :}J1) to make it a felony TO en-
gage in poolselling or bookmakins at any time
or place, or to record bets or TO keep or occupy
| any place stand for such purpose. 1t made
| an exception, however, of cases where an exciu-
| Sive penalty otherwise provided.
At the same time, by the so-called racing law
| Uaws of 1880 chapter $40. sections 1-1S) a
different and exclusive penalty was provided for
| booknla king and poolselling authorized race
| tracks, provided -menora ndum or token of
the bet was delivered. This exclusive penalty
consists Of the forfeiture of the amount Wagered.
TO be recovered in a civil action.
In writing for the Court of Appeals with
reference to the construction of these sections
| of the racing law, Chief Judge Cullen said
| people V. Stedeker, 10 N Y: on page CD:
1t will thus be seen that the effect OF these two
| sections is to relieve any person who either makes
from any liability to punishment except the recov-
tied ' There is but one qualification on this es-
enption, that no record or registry of the bet
third rerson for him. In other words, the question
whether the Offender is fel9n or not depends upon
or evidence OF the bet TO the other party If he
on the races and record and register the same free
from other liability than the civil penalty,
The constitutionality of this discrimination
has been upheld by the Court of Appeals upon
the ground that in carrying out the provisions
of the constitution it was in the discretion of
the Legislature to fix the penalty and that in
the cases specified the Legislature could make
the penalty simply a forfeiture of the bet, to
be recovered in civil action. The question for
the court simply one of legislative power.
A different question: however, is presented to
the Legislature in the exercise of its discretion,
and that is the question of legislative policy and
of a substantial. and not mere technical, COM
plianCe constitutional
ion. The constitution makes it the duty of the
Legislature to enact appropriate laws to prevent
poolseliing. bOokmaking and other kinds of
gambling. Experience has shown that the laws
enacted have not accomplished the purpose
which the constitution defines The evils and
demoraliZing influences, and. 1t may he added.
the economic waste at which the constitution
aimed exist under the law, and in fact are
stimulated and increased through its provisions.
The discrimination in penalties existing
rests distinction that is justified to the
popular mind. Public sentiment is against such
arbitrary distinctions with the result that the
laws against gambling outside of racetracks
have been defed and the administration of the
law has been brought into contempt.
The constitution makes no exception of race
tracks. | recommend that the Legislature carry
out the clear direction Of the people without dis
elimination. In connection with the repeal of
offences described in Section 351 of the Penal
Code should be punished by Imprisonment. and
that the alternative of fines should be abolished
The racing law provides for tax of per
Centum upon the gross receipts at trotting and
running meetings which under the agri-
cultural law becomes part of fund for dis
tributiOn each year among various agricultural
societies in prescribed proportions In order
that there may be diminutiOn of the SIM
port upon which these societies largely rely an
preparations may be made for their benefit to
the extent necessary to secure to them amounts
substantially equivalent to the sums they hith-
erto have received. 1t is better that they should
be supported directly than that the state should
derive revenue for this purpose through an
indefensible partiality in the enforcement of the
fundamental law.