N. Y. Rep.] Opinion of the Court, per MARTIN, J. the Constitution with which it is said that that section of the statute is in conflict. Section nine of article one of the Constitution of the state declares: "Nor shall any lottery or the sale of lottery tickets, poolselling, bookmaking, or any other kind of gambling hereafter be authorized or allowed within this state, and the legislature shall pass appropriate laws to prevent offenses against any of the provisions of this section." In May, 1895, the legislature, with the ostensible, if not the actual, purpose of complying with this command of the Constitution, passed several statutes relating to those subjects, being chapters 570, 571, 572 and 573 of the laws of that year. Chapter 570 is an act for the incorporation of associations for the improvement of the breed of horses, to regulate the same, and to establish a state racing commission. It provides for the incorporation of such associations, for the payment of their capital stock, and makes other provisions to which it is unnecessary to refer at this time. It then provides that such corporations, upon complying with the provisions of that act, shall have the power and right to hold one or more trotting or running race meetings in each year, and to hold, maintain and conduct trotting or running races at such meetings; that at such meetings the corporation, or the owners of horses engaged in such races, or others who are not participants therein, may contribute purses, prizes, premiums or stakes to be contested for; that no person other than the owner of a horse contesting in the race shall have any pecuniary interest in the prize, or be entitled to receive any portion thereof after the race is finished, but the whole shall be allotted in accordance with the terms and conditions of the race. It then provides for a state racing commission, defines its duties and powers, and makes other provisions which need not now be considered. Then it declares: "$ 16. All racing or trials of speed between horses or other animals for any bet, stake or reward, except such as is allowed by this act, or by special laws, is a public nuisance; and every person acting or aiding therein, or making or being interested in such bet, stake or reward is guilty of a misdemeanor; and in addition to the Opinion of the Court, per MARTIN, J. [Vol. 152. penalty prescribed therefor he forfeits to the people of this state all title or interest in any animal used with his privity in such race or trial of speed, and in any sum of money or other property betted or staked upon the result thereof." Then follows the section which the appellant claims to be unconstitutional, which reads: " 17. Any person who, upon any race course authorized by or entitled to the benefits of this act, shall make or record, directly or indirectly, any bet or wager on the result of any trial or contest of speed or power of endurance of horses taking place upon such race course, shall forfeit the value of any money or property so wagered, received or held by him, to be recovered in a civil action by the person or persons with whom such wager is made, or by whom such money or property is deposited. This penalty is exclusive of all other penalties prescribed by law for the acts in this section specified, except in case of the exchange, delivery or transfer of a record, registry, memorandum, token, paper, or document of any kind whatever as evidence of any such bet or wager, or the subscribing by name, initials or otherwise, or any record, registry or memorandum in the possession of another person of a bet or wager, intended to be retained by such other person or any other person as evidence of such bet or wager." Chapter 571 amends section 343 of the Penal Code, which makes it a misdemeanor to keep a gaming and betting estab lishment, while chapter 572 amends section 351 of the Penal Code so as to read: "351. Any person who engages in poolselling, or bookmaking, at any time or place; or any person who keeps or occupies any room, shed, tenement, tent, booth or building, float or vessel, or any part thereof, or who occupies any place, or stand of any kind, upon any public or private grounds, within this state, with books, papers, appa ratus or paraphernalia, for the purpose of recording or regis tering bets or wagers, or of selling pools, and any person who records or registers bets or wagers, or sells pools upon the result of any trial or contest of skill, speed or power of endurance, of man or beast, or upon the result of any political N. Y. Rep.] Opinion of the Court, per MARTIN, J. nomination, appointment or election; or upon the result of any lot, chance, casualty, unknown or contingent event whatsoever; or any person who receives, registers, records or forwards, or purports or pretends to receive, register, record or forward, in any manner whatsoever, any money, thing or consideration of value, bet or wagered, or offered for the purpose of being bet or wagered, by or for any other person, or sells pools, upon any such result; or any person who, being the owner, lessee or occupant of any room, shed, tenement, tent, booth or building, float or vessel, or part thereof, or of any grounds within this state, knowingly permits the same to be. used or occupied for any of these purposes, or therein keeps, exhibits or employs any device or apparatus for the purpose of recording or registering such bets or wagers, or the selling of such pools, or becomes the custodian or depositary for grain, hire or reward, of any money, property or thing of value, staked, wagered or pledged, or to be wagered or pledged upon any such result; or any person who aids, assists or abets in any manner in any of the said acts, which are hereby forbidden, is guilty of a felony, except when another penalty is provided by law, and upon conviction is punishable by imprisonment in the state prison for a period of not less than one year, nor more than two years, or by such imprisonment, together with a fine not exceeding two thousand dollars. When an exclusive penalty is provided by law for an act hereby prohibited, the permitting of the use of premises for the doing of the act in such case shall not be deemed a violation hereof, or of section three hundred and forty-three of this code." Chapter 573 has no important bearing upon the question before us. This examination of the statutes discloses that the legislature has passed laws, the obvious purpose of which is to prevent the offenses mentioned in section nine of article one of the Constitution. Under the statutes thus passed, all the offenses there named are made felonies or misdemeanors, with the single exception that a person who, upon a race course and at a race authorized by chapter 570, shall make or record a Opinion of the Court, per MARTIN, J. [Vol. 152. bet or wager on the result of a contest taking place thereon, shall forfeit the value of the money or property so wagered, to be recovered in a civil action by the person with whom such wager is made, or by whom such property is deposited, and this penalty is made exclusive of all others, unless in certain excepted cases mentioned. Under these circumstances, two questions are presented for consideration: 1. Whether the acts alleged and proved to have been performed by the relator were such as to fall only within the provisions of section 17 of chapter 570 of the Laws of 1895, and, consequently, did not constitute a crime, and, if so, 2. Whether that section is in conflict with the provisions of the Constitution. A careful study of the various statutes involved and of the evidence contained in the record leads to the conclusion that the only acts of which the relator was proved guilty were those described in section seventeen, and that he was not proved to have committed any act which would constitute any of the other offenses mentioned in those statutes. It is manifest that it was the relator's purpose to keep within the provisions of that section and to avoid any offense whereby he would incur any other penalty. Plainly he was not a keeper of a betting or gaming establishment or guilty of violating any of the provisions of section 343 of the Penal Code, which forbids the keeping of such establishments. Nor do we think he was engaged in bookmaking or poolselling, which is made a crime by section three hundred and fifty-one, unless possibly to the modified extent described in section seventeen as recording a bet or wager, for which the forfeiture of an amount equal to the value of the money or property wagered is the penalty prescribed. If the acts which he performed were only such as fell within the provisions of the latter section, whether denominated bookmaking or making a record of a bet, is of little moment. If it be held that they constitute what might perhaps be called bookmaking, yet, as they consisted only of the acts mentioned in N. Y. Rep.] Opinion of the Court, per MARTIN, J. that section, and are punishable as therein provided to the exclusion of any other penalty or punishment, they are excepted from the operation of section three hundred and fifty-one of the Penal Code, as that section expressly excepts from the punishment thereby provided for all the offenses mentioned whenever another penalty is provided by law. While the appellant scarcely contends that the relator was shown to be guilty of poolselling, yet it is insisted that he was guilty of bookmaking and punishable under the provisions of section three hundred and fifty-one. We think it is clear that there was no evidence before the magistrate upon which the relator could be properly held for the offense of poolselling. As has already been intimated, it is not of much consequence whether the acts of the relator be denominated bookmaking or called by some other name. It seems to us that the one important inquiry in relation to this branch of the case is whether the acts of the relator were punishable only in the manner prescribed by section seventeen, and, consequently, excepted from the provisions of section three hundred. and fifty-one of the Penal Code. That the relator was upon a race course authorized by, and entitled to the benefit of the provisions of chapter 570; that he made or recorded a bet on the result of the contest taking place thereon, and that he did none of the things mentioned in the last paragraph of that section are practically undenied. Therefore, that the acts performed by the relator were only those for which, by section seventeen, the penalty prescribed was a forfeiture of an amount equal to the bet, and as to which it was provided that a civil action to recover it should be the exclusive remedy, must be regarded as established. Such being the case, it follows that, by whatever name the acts of the relator may be described, the only punishment which could be inflicted was that provided by that section, if valid. It is, however, persistently urged that section seventeen is void as being in contravention of the provisions of the Constitution relating to that subject. Without indulging in any refined |