O'Keefe v. Weber

• Decision Date: 26 April 1886
• Citation: 14 Or. 55,12 P. 74
• Court: Oregon Supreme Court
• Parties: O'KEEFE v. WEBER and others.

12 P. 74

14 Or. 55

O'KEEFE v. WEBER and others.

Supreme Court of Oregon

April 26, 1886

(October 28, 1886.)

This action was brought under an "act to prevent and punish gambling," approved October 20, 1876, to recover money lost at gaming.

Section 1 of the act provides for the punishment, by fine, of "each and every person who shall deal, play, carry on open, or cause to be opened, or who shall conduct, either as owner, proprietor, or employe, whether for hire or not, any game of faro, monte, roulette, rouge et noir, lansquenette rondo, vingt-et-un, (or 'twenty-one'), poker, draw poker, brag, bluff, thaw, or any banking or other game played with cards, dice, or any other device, whether the same be played for money, checks, credit, or any other representative of value."

"Sec 3. All persons losing money, or anything of value, at or on any of said games, shall have a cause of action to recover from the dealer or player winning the same, or proprietor for whose benefit such game was played or dealt, or such money or thing of value won, twice the amount of the money, or double the value of the thing so lost."

F.A.E. Starr, for appellants, Emil Weber and others.

A.H. Tanner, for respondent, M. O'Keefe.

WALDO C.J.

A statute giving cumulative damages to the party aggrieved is a remedial, not a penal, statute. Reed v. Northfield, 13 Pick. 94, was an action on a statute to recover double damages for an injury to the plaintiff caused by a defect in a highway. It was argued that the action was penal; but the court said: "In the present case, we think the action is purely remedial, and has none of the characteristics of a penal prosecution. All damages for negligence or breach of duty operate, to a certain extent, as punishment; but the doctrine is that it is prosecuted for the purpose of punishment, and to deter others from offending in like manner. Here the plaintiff sets out the liability of the town to repair, and an injury to himself from a failure to perform that duty. The law gives him enhanced damages, but still they are recoverable to his own use, and in form and substance the suit calls for indemnity." And see Goodridge v. Rogers, 22 Pick. 495; Burnett v. Ward, 42 Vt. 80; Quimly v. Carter, 20 Me. 218. Where a sum is given to a stranger, as where it is given to him that shall prosecute, the action is penal. Cole v. Groves, 134 Mass. 471. "The action is remedial where the action is brought by the party injured; but penal, where brought by a common informer." Bones v. Booth, 2 W.Bl. 1227; Woodgate v. Knatchbull, 2 Term R. 148; Wilkinson v. Colley, 5 Burr. 2698. There is no difference, respecting this remedial character, between a statute giving single and one giving accumulative damages. Cases above, and see Myddleton v. Wynn, Willes, 597; Atcheson v. Everitt, Cowp. 391; Lake v. Smith, 1 Bos. & P. 179; Hardw.Cas.Temp. 412.

The action given by the third section of the act is therefore a strictly civil action. Is it without the subject expressed in the title? We had an impression at the argument that civil and criminal provisions could not be mingled under a common title, but the law is undoubtedly the other way.

The statute of 9 Anne, c. 14, referred to by COMSTOCK, J., in Meech v. Stoner, 19 N.Y. 26, was entitled "An act for the better preventing excessive and deceitful gaming," and was similar to the one before us, in containing civil and criminal provisions. The second section gave an action to recover the money lost. It is true, HOLT C.J., had said a few years before that "the title of an act of parliament is no part of the law or enacting part, no more than the title of a book is part of the book; for the title is not the law, but the name or description given to it by the makers." Mills v. Wilkins, 6 Mod. 62. We think, however, that at this period we are entitled to rely on the statement of the chief justice that the title was the work of the makers of the act; and that we may, to some extent, infer that they supposed they were carrying out the object avowed in the title when, in the second section of the act, they gave the loser an action to recover the money lost,--an action which, as Mr. Justice COMSTOCK showed in Meech v. Stoner, above, he had not at common law. In a general sense, all law is preventive. An act to prevent gambling is the same, in legal effect, as an act to prevent and punish gambling. The legislator can hardly be supposed to interest himself in the fortunes of one who loses his money at gambling. His object must be simply to repress gambling. This is one of the means by which he tries to accomplish his object. That it will have that effect, so far as it has effect at all, is certain. Then, it cannot be said that he has not expressed the subject of the act...