CASES DECIDED IN THE COURT OF APPEALS OF THE STATE OF NEW YORK, COMMENCING MARCH 2, 1897. LA 817 THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOSEPH 2. CONSTITUTIONALITY OF L. 1895, CH. 570, § 17. Section 17 of chapter 570, Laws of 1895, which imposes the exclusive penalty of a forfeiture of the amount of the bet, to be recovered in a civil action, upon a person who, on a race course authorized by, or entitled to the benefits of, the act, makes or records a bet upon a horse race thereon, is not in conflict with the provisions of the Constitution (Art. 1, § 9), which prohibit the authorization of lotteries, poolselling, bookmaking, or any other kind of gambling, and require the legislature to pass appropriate laws to prevent such offenses. Where, as in 3. EXTENT OF PENALTY-PROVINCE OF LEGISLATURE. section 17 of chapter 570, Laws of 1895, the act prohibited by the Constitution is forbidden by the legislature, and the statute provides a penalty or forfeiture for a disregard of it, the determination of the degree of puaishment or the extent of the penalty is vested in the legislature and not in the courts. People ex rel. Sturgis v. Fallon, 4 App. Div. 76, affirmed. (Argued January 18, 1897; decided March 2, 1897.) APPEAL from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 11, 1896, which affirmed an order of the Court of Oyer and Terminer for the city and county of New York sustaining writs of habeas corpus and certiorari, and discharging the relator from the custody of the appellant. The facts, so far as material, are stated in the opinion. John D. Lindsay for appellant. The evidence before the city magistrate was sufficient, prima facie, to show that Jones and the relator were, at the time of the latter's arrest, engaged in "bookmaking" within the meaning of section 351 of the Penal Code, as that section was amended by chapter 572 of the Laws of 1885. (Haley v. Cridge, Daily Reg. March 11, 1882; Murphy v. Bd. of Police, 11 Abb. [N. C.] 337 ; J. P. Co. v. Bd. of Police, 11 Abb. [N. C.] 342; Reilly v. Gray, 77 Hun, 402; L. 1877, ch. 178; L. 1887, ch. 479, 88 4, 7; L. 1893, ch. 469; People v. Cleary, 13 Misc. Rep. 546; 6 Record N. Y. Const. Conv. 1894, pp. 2581-2585, 2599-2610; Const. N. Y. art. 1, § 16; L. 1895, ch. 572.) No penalty for the offense of engaging in bookmaking, other than that prescribed by section 351 of the Penal Code, is provided by law, and the offense is, therefore, punishable in the manner there declared. (L. 1895, ch. 570, § 17.) Benjamin Steinhardt for appellant. Section 17 of chapter 570 of the Laws of 1895 is unconstitutional. (Const. N. Y. art. 1, § 9, 16; People ex rel. v. Draper, 15 N. Y. 532; People ex rel. v. Albertson, 55 N. Y. 55; People v. Cleary, 13 Misc. Rep. 546; In re Sweeley, 12 Misc. Rep. 174; 148 N. Y. 219; People ex rel. v. Fallon, 4 App. Div. 87.) Even if section 17 be constitutional, the defendant's offense was punishable under section 351 of the Penal Code. (J. P. Co. v. Bd. of Police, 11 Abb. [N. C.] 342; Const. N. Y. art. 1, § 16; People v. Cleary, 13 Misc. Rep. 546; People ex rel. v. Barber, 5 Crim. Rep. 381; Murphy v. Bd. of Police, 11 Abb. [N. C.] 337.) N. Y. Rep.] Opinion of the Court, per MARTIN, J. De Lancey Nicoll for respondent. The respondent did not commit the crime of poolselling. (Irving v. Britton, 8 Misc. Rep. 201; State v. Lovell, 10 Vroom, 458.) The respondent did not commit the crime of occupying any room, shed, tenement, tent, booth or building, float or vessel, or any part thereof, or any place or stand of any kind upon any public or private grounds within this state with books, papers, apparatus or paraphernalia for the purpose of recording bets and wagers. (Shaw v. Morley, L. R. [3 Exch.] 137; Bows v. Fenwick, L. R. [9 C. P.] 339; Gallaway v. Maries, L. R. [8 Q. B. D.] 275 ; Queen v. Cook, L. R. [13 Q. B. D.] 377; Whitehurst v. Fincher, 62 L. T. R. 433; Doggett v. Catterns, 19 C. B. [N. S.] 764; Snow v. Hill, L. R. [14 Q. B. D.] 588.) The respondent did not violate the provisions of section 351 of the Penal Code relating to bookmaking. His acts were within section 17 of chapter 570 of the Laws of 1895, and exposed him only to the penalty imposed by that section. (L. 1895, ch. 570, § 17; L. 1887, ch. 479; J. P. Co. v. Bd. of Police, 11 Abb. [N. C.] 342; Cooley's Const. Lim. 79, 80; 6 N. Y. Const. Conv. Record, 1894, pp. 2581-2585, 2599-2610.) Section 17 of chapter 570 of the Laws of 1895 is not unconstitutional. (Cooley's Const. Lim. 154; Ex parte Curtis, 106 U. S. 371; Legal Tender Case, 110 U. S. 421; State v. Shields, 4 Mo. App. 264; State v. Hitchcock, 1 Kans. 178; State v. Smith, 44 Ohio St. 349; Patterson v. Barlow, 60 Penn. St. 54; State of Missouri v. County Court of Boone Co., 50 Mo. 317; Cooley's Const. Lim. [6th ed.] 201; In re Bayard, 25 Hun, 546.) MARTIN, J. The relator was charged by an information. filed with one of the magistrates of the city of New York with a violation of section three hundred and fifty-one of the Penal Code, in that, on October 24th, 1895, at the private grounds of the Westchester Racing Association in the city of New York, he engaged in poolselling, bookmaking, and occupied and used a certain place with books, apparatus and paraphernalia for the purpose of recording and registering bets Opinion of the Court, per MARTIN, J. [Vol. 152. and wagers. Upon the examination before the magistrate it was shown that on that day he was upon the grounds of the association with one Orlando Jones, by whom he was employed as clerk. He, and Jones who attended the race for the purpose of making wagers according to his judgment, walked about the grounds together, the latter making bets on the races then in with whom he was progress with persons acquainted, and the relator, at his direction, entered such bets on sheets of paper belonging to Jones, which were conveniently ruled for that purpose. The prosecution called Jones as a witness, who testified to the distinction between bookmaking and what was done on that occasion. He was admitted to the grounds without charge as he was the owner of a horse entered for the races, but the relator paid for his admission. Neither Jones nor the relator had any desk, stand, chair, rest or support of any kind, nor did they occupy any booth, tenement, building or part thereof, or any particular spot upon the grounds. Nor did either exchange any money with any person making a wager with Jones, or exchange, deliver or transfer to any one with whom a wager was made any record, memorandum or document of any kind, or subscribe by name, initials or otherwise any record, registry or memorandum in the possession of another of any bet or wager to be retained by such other or any person as evidence of a bet or wager. No odds were posted, money exchanged or memorandum of any kind received, delivered or transferred. Upon these facts the magistrate decided that the relator had violated section three hundred and fifty-one of the Penal Code, and held him to answer therefor. A writ of habeas corpus was then obtained, and also a certiorari to review the decision of the magistrate. Upon the hearing in the Court of Oyer and Terminer, the relator was discharged. As the propriety of the decision in this case is largely, if not wholly, dependent upon the validity of section seventeen of chapter 570 of the Laws of 1895, which is claimed by the appellant to be unconstitutional and void, it may be well, at the threshold of this examination, to refer to the provision of |