In re Opinion of the Justices

• Decision Date: 13 March 1906
• Citation: 63 A. 505,73 N.H. 625
• Parties: In re OPINION OF THE JUSTICES.
• Court: New Hampshire Supreme Court

63 A. 505

73 N.H. 625

In re OPINION OF THE JUSTICES.

Supreme Court of New Hampshire.

March 13, 1906.

To the Supreme Court:

The Governor and honorable council, being convinced that certain persons intend to maintain a race track and to conduct races thereon in this state, in order to induce others to resort thereto for the purpose of engaging in pool selling, book making, and other forms of race-track gambling, and believing that unless such proceedings are already forbidden by law it will be our duty to call a special session of the Legislature attence to act on the subject, respectfully require the opinions of the justices upon the following questions, so that the Governor and council may correctly determine their duty in the premises:

(1) Whether the corporation created by chapter 232, p. 848, of the Laws of 1905, under the name of the New England Breeders' Club, is empowered to keep, or let, any house, shop, or place resorted to for the purpose of pool selling, book making, or any form of betting or gambling upon the result of such races and contests of speed, skill, and endurance as it is by said chapter authorized to conduct; or to suffer any person to sell pools, make books, or in any other way bet or gamble upon the result of such races and contests in any house, shop, or place under its care or control.

(2) Whether any such action, if not authorized, is forbidden by law.

John McLane, Governor.

F. S. Towle,

Charles M. Floyd,

Joseph W. Howard,

Edward G. Leach,

C. H. Green leaf,

Councilors.

To His Excellency, the Governor, and the Honorable Council:

The facts as to the existing situation, communicated to us in connection with the questions submitted, establish our constitutional duty to answer, although the subject-matter of the inquiry does not directly relate to the power or duty of the body making the inquiry. "The seventy-fourth article [of the Constitution] authorizes each branch of the Legislature, as well as the Governor and council, to require the advice of the justices of the Supreme Court upon important legal questions pending in the body entitled to the advice, and awaiting the consideration and action of that body in the course of its legislative or executive duty." In re School-Law Manual, 63 N. H. 574, 576, 4 Atl. 878. In giving such opinion, the justices do not act as a court, but as the constitutional advisers of the body requiring their opinion. Opinion of the Court, 60 N. H. 585. It is the duty of the Governor, with advice of council, to call the Legislature together "sooner than the time to which it may be adjourned or prorogued, if the welfare of the state should require the same." Const, art. 49. As it appears that the question whether there is occasion for such action is now before the Governor and council, and that their determination of that matter depends upon the solution of the questions submitted, the legal questions thereby presented are pending before and must be decided by them, in the performance of official duty. That the calling of the Legislature together at the present time is seriously considered establishes the existence of the solemn occasion of the Constitution; and the fact that the legal questions suggested are considered determinative of the duty of the executive renders them, whether difficult or otherwise, important questions of law.

The substance of the questions submitted is whether the New England Breeders' Club is authorized by its charter to maintain a common gambling place or permit the use of its premises as such, If the promoting or permitting of betting, book making, or pool selling upon horse races constitutes that offense. It is more convenient to consider first the second question, whether the acts described in the first question are forbidden by law. The only section of the statute directly applicable is as follows: "If any person keeps any house, shop, or place resorted to for the purpose of gambling, or lets any such place for that purpose, or suffers any person to gamble in any way in any such place, which is under his care or control, he shall be fined not exceeding two hundred dollars, or be imprisoned not exceeding one year." Pub. St. 1901, c. 270, § 6. If pool selling, book making, or betting upon horse races is gambling, within the meaning of this section, the second question must be answered in the affirmative.

Words in a statute are to be construed according to the common and approved usage of the language, unless they have acquired a peculiar and appropriate meaning in the law, or from the context or manifest purpose of the Legislature it is apparent a different meaning was Intended. Pub. St. 1901, c. 2, §§ 1, 2. It might be difficult to maintain the proposition that to bet, purchase, and sell pools, and make books upon the racing of horses was not "to gamble in any way," in the common acceptation of the term. Pool selling and book making are described as forms of gambling by writers of authority. See Const. N. Y. art. 1, § 9; People v. Fallon, 152 N. X. 1, 5, 46 N. E. 302, 37 L. R. A. 419; 9 Messages of the Presidents, 94 (veto message of President Harrison). Prom the manner in which they are repeatedly classed with gambling in sections 4 and 6, c. 232, p. 649, Laws 1905, to which our attention has been directed, it is plain these practices were understood by the draftsman of the act to be at least intimately associated with gambling. But it is not necessary to give any particular weight to this consideration to ascertain the meaning of the Legislature. That sufficiently appears from the context and the legal meaning of the terms.

"Pool selling" or "book making," in connection with the racing of horses or otherwise, are not defined or denounced in terms in the public statutes, and we think are not mentioned at all except in chapter 232, p. 648, Laws 1905. In Barker v. Mosher, 60 N. H. 73, it appeared that pool selling was a method of betting and wagering money upon a horse race. The two terms appear to be classed with betting, in the communication submitted, as race-track gambling, and are defined in the dictionaries as methods of betting or wagering money upon the result of such races or other contests. It is therefore assumed that the terms are to be understood as defining some method of betting or wagering money upon such events. A "bet or wager" is defined by section 18, c. 270, Pub. St. 1901, as "any contract or agreement for the purchase, sale, loan, payment, or use of money or property, * * * the terms of which are made to depend upon, or are to be varied or affected by, any uncertain event in which the parties have no interest except that created by such contract or agreement." By the two preceding sections, such contracts are declared void, and the losing party is given a right to recover of the winner any money or property paid on any such contract or agreement. While all wagers or bets are void, all betting is not prohibited; but certain bets are classed as gambling and prohibited. "If any person shall gamble, or bet on the sides or hands of such as are gambling or playing at any game, * * * he shall be fined not exceeding two hundred dollars, or be imprisoned not exceeding one year." Pub. St. 1901, c. 270, § 7. By the next section, a gambler is defined as "every person who plays at a game of chance or skill in a place which is resorted to for the purpose of gambling, unless it be shown the game was for amusement only, without a stake or possibility of gain or loss, and every person who is present at such a place when any game or sport is being played for money or other stake." Under these provisions, it is immaterial whether the game upon which money is risked or wagered is a game of skill or chance, or a game more properly denominated a sport; for, since all the sections are to be read together, it is plain the Legislature could not have intended to define as a gambler one who did certain acts, or who was present where certain things were done, unless such acts were understood by them to be gambling.

The terms "gaming" and "gambling" are in their criminal sense synonymous (Web. Dict; Cent. Dict; 14 Am. & Eng. Enc. Law, 666), and have been used interchangeably in our statutes (Rev. St 1842, c. 220, §§ 3, 4; Gen. St. 1867, c. 254, §§ 6, 7, 8). The distinction between "betting" and "gaming" is that gaming always includes a wager, while betting is not gaming unless the wager be laid upon a game. "It is the betting upon the game that constitutes gaining, and those game or gamble who thus bet. * * * The word 'game' is very comprehensive and embraces every contrivance or institution which has for its object to furnish sport, recreation, or amusement. Let a stake be laid upon the chances of the game, and we have gaming." Cooley, J., in People v. Weithoff, 51 Mich. 203, 16 N. W. 442, 47 Am. Rep. 557; State v. Leighton, 23 N. H. 167, 171. This is the distinction which, as has been remarked, is made by our statute. A wager is not of itself an offense against the criminal law, and is not gambling (Winchester v. Nutter, 52 N. H. 507, 13 Am. Rep. 93); but a wager on a game or sport is gambling, and is in terms declared to be an offense. In Winchester v. Nutter, the question whether a squirrel hunt was or not a game, if any ground could be found on which to base such a claim, was not suggested and was not considered. The word "sport" was not introduced into the statute until 1881, 10 years' after the events passed upon in that case. Laws 1881, p. 460, c. 36, § 1. The decision therefore does not aid upon the present question, whether betting upon a horse race is gaining. If horse races, or "contests of speed, skill, and endurance" (Laws 1905, p. 649, c. 232, § 3), are games, within the meaning of the statute, the betting or wagering of money thereon is gambling. "Game" is defined in the Century Dictionary as "a contest for success or superiority in a trial of chance, skill, or endurance." That the word "game," in a...