Opinion of the Court, per MARTIN, J.

[Vol. 152.

or subtle discussion or consideration of the question as to what may or may not fall within the terms poolselling, bookmaking or other kinds of gambling which, under the Constitution, may not be authorized, and in relation to which the legislature is charged with the duty of passing appropriate laws to prevent, it is manifest that the legislature regarded acts of the character of those performed by the relator as falling within its condemnation. Hence, we must assume that his acts were in conflict with the spirit and purpose of the Constitution. In pursuance of its mandate, the legislature has enacted a law which forbids such acts and prescribes as a penalty that a person making a bet or record of it, at the place and in the manner named, shall forfeit an amount equal to the value of the property or sum wagered. Whatever its indirect effect may be, it certainly cannot be said that this was a statute which in terms authorized any of the forbidden acts. The most that can be said is, that when the legislature passed that section of the statute, its effect was to reduce the then existing penalty or punishment for that particular offense. The authority to prescribe the punishment for the offenses mentioned in that provision of the Constitution is expressly conferred upon the legislature, which necessarily included a delegation to it of the power and authority to increase or decrease the punishment for offenses of that character to such an extent as the legislature deemed proper.

It is not within the province of this court to declare that section seventeen is in contravention of the Constitution, for the reason that it does not deem the provision adopted appropriate or sufficient to prevent such offenses. The Constitution in express terms reposed in the legislature the power, and imposed upon it the duty of passing such laws, thus clothing it with the right to consider and determine for itself what laws were appropriate and should be passed to carry it into effect. That the law under consideration is, in a sense, appropriate to accomplish the purpose of that provision must be admitted. Whether it will prove less effective to accomplish that result than some other we are not called upon to deter

N. Y. Rep.]

Opinion of the Court, per MARTIN, J.

mine. It being in a degree appropriate, we are aware of no principle of constitutional law which would authorize this court to condemn it as invalid or unconstitutional, because, in our opinion, some more effective or more appropriate law might have been devised and enacted. So long as this legislation was in any degree appropriate to carry into effect the purpose of the Constitution, it does not fall under its condemnation.

That this provision of the Constitution was not intended to be self-executing is manifest, as it expressly delegates to the legislature the authority, and requires it to enact such laws as it shall deem appropriate to carry it into execution.

The contention of the appellant, that the purpose of the enactment of section seventeen was to evade or defeat the provisions of the Constitution, is not proved and cannot be presumed, but a contrary presumption must prevail. Presumably the purpose was laudable and proper, such as the legislature deemed best for the proper and efficient accomplishment of the purpose of the Constitution, and no contrary presumption will be indulged in by this court. In the language of ALLEN, J., in People ex rel. v. Albertson (55 N. Y. 50, 54): "Courts do not sit in review of the discretion of the legislature, or determine upon the expediency, wisdom or propriety of legislative action in matters within the power of the legislature. Every intendment is in favor of the validity of statutes; and no motive, purpose or intent can be imputed to the legislature, in the enactment of a law, other than such as are apparent upon the face, and to be gathered from the terms of the law itself." As was said by DENIO, Ch. J.: "The courts cannot impute to the legislature any other than public motives for their acts. If a given act of legislation in not forbidden by express words, or by necessary implication, the judges cannot listen to a suggestion that the professed motives for passing it are not the real ones." (People ex rel. v. Draper, 15 N. Y. 532, 545.)

While under that provision the legislature would have no power to enact laws permitting those offenses, or which in

terms protected persons guilty of them from punishment, yet where, as in this case, the act is forbidden by the legislature and the statute provides a penalty or forfeiture for a disregard of it, the determination of the degree of punishment or the extent of the penalty is vested in the legislature and not in the courts.

Without further discussion, or considering the question whether the legislation under consideration was, or not, best calculated to accomplish the design of the Constitution, we are of the opinion that section seventeen was not in conflict with section nine of article one, and, hence, is constitutional and valid.

Treating section seventeen as valid, and construing section three hundred and fifty-one of the Penal Code in connection with it, it at once becomes obvious that the relator was not guilty of any offense under that section for which he was liable to the arrest which he suffered and from which he was discharged.

The order of the Appellate Division was proper and should be affirmed.

All concur.
Order affirmed.

THE PEOPLE OF THE STATE OF NEW YORK еx rel. SAMUEL B.
LAWRENCE, Respondent, v. JOHN FALLON, Warden and
Keeper of the City Prison of the City of New York,
Appellant.

1. HORSE RACING NOT A LOTTERY-L. 1895, CH. 570. The conducting, by a racing association organized under chapter 570, Laws of 1895, of horse races for premiums or stakes consisting of a definite sum payable by the association out of its general funds, without regard to the amount of the entrance fees paid by the competitors, does not constitute a lottery, within the meaning of that term as defined by the Penal Code.

2. BOOKMAKING POOLSELLING. The conducting of horse races by a racing association for premiums or stakes, in the usual way and under the rules generally adopted by racing associations, does not render its officers guilty of either bookmaking or poolselling.

3. RACING FOR PRIZES NOT GAMBLING. The offering or paying, by a racing association, of premiums or prizes to the successful horses, out of its general funds, to which the horse owners participating in the races have contributed by payments into the general treasury of the association, constituting a part of its general assets for the time being, subject only to the obligation of the association to pay the amount of the several prizes, does not constitute gambling, within the provisions of the Constitution (Art. 1, § 9), which forbid lotteries, poolselling, bookmaking and every other kind of gambling.

4. CONSTITUTIONALITY OF L. 1895, CH. 570. Chapter 570, Laws of 1895, is not violative of the provisions of the Constitution forbidding gam bling, in that it authorizes associations organized under it to hold and conduct meetings for races for premiums or prizes to be awarded to the successful horses.

5. RACING FOR STAKES - PENAL CODE, § 352. Chapter 570, Laws of 1895, is a special law, and the conducting of races authorized by it constitutes an exception to section 352 of the Penal Code, which prohibits racing for a stake, bet or reward, "except as allowed by special law.”

People ex rel. Lawrence v. Fallon, 4 App. Div. 82, 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 relator from the custody of appellant.

The facts, so far as material, are stated in the opinion.

John D. Lindsay for appellant. A scheme for the distribution of money by chance, namely, for the distribution of money dependent upon the result of a horse race, among persons who have paid or agreed to pay a valuable consideration for such chance, is a lottery within the meaning of the Constitution, and the contriving, etc., thereof is an offense punishable under the Penal Code. (Const. N. Y. 1821, art. 7, § 11; Const. N. Y. 1846, art. 1, § 10; Const. N. Y. art. 1, $9; Governors, etc., v. A. A. Union, 7 N. Y. 228; Irving v. Britton, 8 Misc. Rep. 202; Penal Code, § 323; People v. Payne, 3 Den. 88; Hull v. Ruggles, 56 N. Y. 426; Negley v. Devlin, 12 Abb. [N. S.] 210; Wilkinson v. Gill, 74 N.

Y. 63; People v. Noelke, 94 N. Y. 137; Horner v. U. S., 147 U. S. 439; U. S. v. Ziegler, 30 Fed. Rep. 499; U. S. v. Wallis, 58 Fed. Rep. 942; State v. Lovell, 10 Vroom, 458; State v. Clark, 33 N. H. 329; Com. v. Wright, 137 Mass. 250.) The scheme set forth in the informations herein, even if not a lottery, was a gambling scheme. (Brua's Appeal, 55 Penn. St. 294; Wilkinson v. Gill, 74 N. Y. 63; Harris v. White, 81 N. Y. 533; Ruckman v. Pitcher, 1 N. Y. 392; Irving v. Britton, 8 Misc. Rep. 201; Ludington v. Dudley, 9 Misc. Rep. 700; Reilly v. Gray, 77 Hun, 402; Tollett v. Thomas, L. R. [6 Q. B.] 514; State v. Lovell, 10 Vroom, 456.) If chapter 570 of the Laws of 1895 was intended to authorize "sweepstakes" races of the character described in the information herein, it is clearly violative of section 9 of article 1 of the Constitution of 1894, and void, so far, at least, as it attempts to authorize the acts thereby prohibited. (Const. N. Y. art. 1, § 9; Story on Const. [5th ed.] § 375; Cooley's Const. Lim. [5th ed.] 55, 56; Potter's Dwarris on Stat. 111; People ex rel. v. Bd. Suprs. N. Y., 16 N. Y. 424; Salters v. Tobias, 3 Paige, 345; Jackson v. Phelps, 3 Caines, 62–69; Pardee v. Blanchard, 19 Johns. 442; People ex rel. v. Wilson, 3 Hun, 437; Reiser v. W. T. S. Assn., 39 Penn. St. 137; Governor v. Porter, 5 Humph. 165; Calhoun v. McLendon, 42 Ga. 405; Wertinghauser v. People, 44 Mich. 265; Ex parte Blanchard, 9 Nev. 101.) If the act is constitutional, and does not attempt to authorize the holding of races, which are lotteries, or any other form of gambling within the meaning of the constitutional prohibition, then the relator is shown so have been guilty of a criminal offense, and was improperly discharged from custody. (Penal Code, § 352; L. 1895, ch. 570, § 16.)

Benjamin Steinhardt for appellant. The information clearly charged the defendant with contriving a lottery. (Penal Code, § 323; Wilkinson v. Gill, 74 N. Y. 63; State v. Nates, 3 Hill [S. C.], 200; State v. Gupton, 8 Ired. [N. C.] 271; State v. Lovell, 10 Vroom [N. J.], 458; Irving v. Britton, 8 Misc. Rep. 201; Swigart v. People, 40 N. E. Rep.