Larned v. Tiernan

• Decision Date: 19 May 1884
• Citation: 110 Ill. 173,1884 WL 9867
• Parties: MARY LARNEDv.FRANCIS TIERNAN.
• Court: Illinois Supreme Court

110 Ill. 173

1884 WL 9867 (Ill.)

MARY LARNED

v.FRANCIS TIERNAN.

Supreme Court of Illinois.

Filed at Ottawa May 19, 1884.

WRIT OF ERROR to the Superior Court of Cook county; the Hon. SIDNEY SMITH, Judge, presiding. Mr. A. D. CARTER, for the plaintiff in error:

It is only in a clear case that the court will pronounce an act unconstitutional. Every presumption is in favor of its validity. Bureau County v. Chicago, Burlington and Quincy R. R. Co. 44 Ill. 234; McVeagh v. City of Chicago, 49 Id. 320.

The constitutional provision must be construed liberally. It is for the legislature to determine for itself how broad and comprehensive shall be the object of a statute, and how much particularity shall be employed in the title in defining it. Cooley's Const. Lim. (5th ed.) 174, 176.

If combining civil and criminal provisions in an act is a violation of the constitution, then quite a number of our statutes are unconstitutional. In the Revenue act, in the act relating to the department of agriculture, in the act to promote medicine and surgery, and numerous others in the civil code, we find criminal provisions, while in the Criminal Code, in sections 51, 185, 201, 212, 229, and others, we find civil provisions.

In a case of doubt the argument ab inconvenienti is admissible, and has weight. People ex rel. v. Loewenthal et al. 93 Ill. 201.

This provision was not intended to prevent including in the bill or act such means as is reasonably adapted to secure or promote the object indicated by the title. Kurtz v. People, 33 Mich. 282; Johnson v. Higgins, 3 Metc. 566; Phillips v. Bridge Co. 2 Id. 221; People ex rel. v. Briggs et al. 50 N. Y. 553; O'Leary v. Cook County, 28 Ill. 538; State v. Squires, 26 Iowa, 345; Thomasson v. State, 15 Ind. 449; Indiana Central Ry. Co. v. Potts, 7 Id. 681; Reams v. City, 23 Id. 111; Blood v. Marcelliott, 53 Pa. St. 391; Fuller v. People, 92 Ill. 185; People ex rel. v. Brislin, 80 Id. 433; Gunter v. Dale County, 44 Ala. 639.

The penalty denounced is in the nature of a punishment, and has for its object the suppression of gambling. Webster v. People, 14 Ill. 365. Messrs. MOSES & NEWMAN, for the defendant in error:

It is sufficient to express generally in the title of an act the subject of legislation embraced in the act, without detail or specification as to the extent, manner or peculiarity of treatment of the general subject thus expressed; but the courts have uniformly held that no matters can be embraced in the body of the act not strictly germane to the general subject expressed in the title. Fuller v. People, 92 Ill. 182; People v. Hills, 35 N. Y. 449; People v. O'Brien, 38 Id. 193; Durkee v. Janesville, 26 Wis. 69.

If the section in question upon which this action is based is not and can not be regarded as a part of “the law in relation to criminal jurisprudence,” then it relates to a subject not expressed in the title of the act when found.

The remedy given to the loser is to all intents and purposes civil in its nature, being in no degree penal. Bones v. Booth, 2 Wm. Black, 1226; Benjamin v. Beals, 18 Maine, 337.

It arises upon an implied contract to return to the loser what the winner has no right to retain. McDugall v. Walling, 48 Barb. 364.

It constitutes a substantive claim belonging to the loser's estate. Meach v. Stoner, 19 N. Y. 26.

If this portion of this section must fall, how can the remainder of it be retained?

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 bona 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...