Larned v. Tiernan

110 Ill. 173

Opinion

Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was an action on the case, founded upon the last clause of section 132 of the Criminal Code, as revised by the General Assembly, approved March 27, 1874, brought by Mary Larned, suing for herself and the county of Cook, Illinois, to recover treble the sum of $2000, which it is alleged one Elliot P. Larned, by playing at cards, lost and paid to the defendant. The court below sustained a demurrer to the declaration, and plaintiff electing to stand by her declaration, judgment was rendered in favor of the defendant, and the plaintiff sued out this writ of error.

It is not denied that the declaration makes, in proper form, a good cause of action under the above section, if that be valid, and the only question presented here for decision is as to the constitutionality of this section, in the respect of its being, or not, in violation of the provision of the constitution that “no act hereafter passed shall embrace more than one subject, and that shall be expressed in the title; but if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed. ” This section provides that any person who shall lose, by playing at cards or other game, $10 or more, may sue and recover the same back of the winner by action of debt, replevin, assumpsit or trover; and in its last clause, “in case the person who shall lose such money or other thing, as aforesaid, shall not within six months, really, and Iona fide, and without covin or collusion, sue, and with effect prosecute, for such money or other thing by him lost and paid or delivered, as aforesaid, it shall be lawful for any person to sue for and recover treble the value of the money, goods, chattels, or other things, with costs of suit, by special action on the case, against such winner aforesaid, one-half to the use of the county and the other to the person suing.” Section 126 imposes a fine of not less than $10, and not more than $100, for gambling. The act in question is entitled “An act to revise the law in relation to criminal jurisprudence. ”

It is said that this section gives a civil right and a civil remedy, which is another subject than that of crimes and their punishment, and so not expressed in a title relating to criminal jurisprudence; that there can not be in such an act a combination of criminal and civil provisions without making two subjects, and so rendering the act obnoxious to the constitutional inhibition in question. But wherefore not ? There is no authority cited in support of the proposition, and it rests upon assertion attempted to be supported upon the idea of there being a difference between criminal and civil proceedings, and between what is punishment and a private recovery for private benefit.

But there is a broader view than that, which is taken by the courts, of this constitutional provision. It being a not uncommon one, it has been the subject of frequent adjudication, and has ever received a liberal construction. The decisions concur in laying down, substantially, the rule that in consistency with that provision there may be included in an act any means which are reasonably adapted to secure the object indicated by the title. O’Leary v. County of Cook, 28 Ill. 534; Fuller v. People, 92 id. 185; Kurtz v. People, 33 Mich. 282; Johnson v. Higgins, 3 Metc. (Ky.) 566; People v. Briggs, 50 N. Y. 553; The State v. Squires, 26 Iowa, 345; Thomasson v. The State, 15 Ind. 449; Reams v. City, 23 id. 111; Gunter v. Dale County, 44 Ala. 639; Blake v. People, 109 Ill. 504.

The only legitimate inquiry here, then, under the adjudications upon this subject, is, as we conceive, what is the provision of this section of the statute in its effect? That if its tendency, in effect, be to the discouragement and suppression of gambling, then it is germane to the general object of the act,—not an independent subject,—and is sufficiently expressed in the title of the act.

Criminal jurisprudence, which is the subject set forth in the title to the Criminal Code, is defined as “that part of the law which relates to crimes and their punishment. ” Subjecting the gambler to the loss of that which he wins, is obviously, in its effect, adverse to the practice of gambling, in tending to make it unprofitable, and, perhaps, might be regarded to be as effective toward the accomplishment of the object of the act as is the fine, under section 126, of not less than $10 nor more than $100. It may be said to come within the strict definition of punishment, “to afflict with pain, loss or calamity, for a crime or fault.” (Webster’s Diet.) One mode of punishment is forfeiture, and what is there, in substance, here but that,—the forfeiture of what one has got by gambling? Now, in the bearing upon the question, here, of making a different subject, which must be expressed in the title of the act, we may see the unimportance of the distinction insisted on, of criminal and civil proceeding, and of the giving of a civil remedy to the person injured, in an act relating to crimes and their punishment. Upon this question, as we have seen, it is the effect of the means provided which tells. It is not the technical designation. The effect of the provision in this section we are considering is to mulct the winner in the loss of his gains, and thereby it aids in effecting the general object of the act,—the suppression of gambling. In this respect of operative effect it matters not where the recovery of that which has been won goes,—whether into the State treasury, county treasury, school fund, into the hands of a common informer, or to the person losing; nor by what mode the recovery is had,— whether by a criminal or civil procedure; nor what the name given to the adopted means,—whether fine, penalty, forfeiture, or damages. Nothing of this is material as determinative of whether there be a difference of subject which must be expressed in the title. In that regard the only thing essential is, what is the provision in its effect, as being in aid of the purpose of the act. The giving of this action for recovery from the winner being a means, in its tendency, promotive of the object of the act as expressed in the title, it is not an independent subject, and need not have been particularized in the title. In the respect of benefit to the loser, and having the effect of reimbursement to him, that is a thing which is incidental, and not the primary object of the provision.. As showing this, the section does not stop with giving to the loser an action for the recovery, but goes on and provides that if he will not sue within six months, then a common informer may bring suit, and recover treble the amount won, thus evincing an especial purpose to make the successful gambler suffer the loss of his winnings. Answer was made to this feature of the provision in O'Leary v. County of Cook, above cited, where the question involved here arose, under “An act to amend an act entitled an act to incorporate the Northwestern University, ” in which there was prohibition of the sale of liquors within a certain distance of the university building, and it was said every provision which was intended to promote the well-being of the institution or its students was within the subject matter of the law, and such was said to be that prohibitory provision, and that “although this provision might incidentally tend to protect others residing in the vicinity, etc., yet that was not the primary object of the law, but its sole purpose was to protect the students and faculty from such influence. ” And further, that “it is not a valid objection that the prohibition designed for the benefit of the institution is guaranteed by a public penalty, or, as in this case, one going to the county. It was competent to select any mode of enforcing the prohibition which might be thought the most efficacious.”

Allusion is made to the fact that originally this section 132 was not a part of the Criminal Code, but was enacted in a separate act, and was retained in such separate act in the revisions of 1833 and 1845, but that in the revision of 1874 this section was transferred into the Criminal Code, and this is remarked upon as showing that the legislature did not regard this section as constituting any part of the criminal jurisprudence of the State. For a court to assume to pronounce a law, which was confessedly constitutional, to have become unconstitutional from the fact of its having been, in a revision of the statutes, arranged under the head of the. Criminal Code, differently from what it was before, would .seem to be not to administer the law, bnt to thwart it. But, however, the circumstance mentioned appears to favor rather the argument in favor of the section’s validity. The revision of 1874 is the latest expression of the General Assembly, and the transferring in that revision this section into the Criminal Code would seem to manifest the legislative sense to be that this provision was designed to be, and was in fact, in the nature of punishment, and that it was rearranged as it was because its most appropriate place was deemed to be under the head relating to crimes and their punishment.

We are of opinion the court below erred in sustaining the demurrer and rendering judgment in favor of the defendant, and the judgment is reversed and the cause remanded.

Judgment reversed.