Miller v. Sincere

• Decision Date: 08 June 1916
• Docket Number: No. 10463.,10463.
• Citation: 112 N.E. 664,273 Ill. 194
• Parties: MILLER v. SINCERE et al.
• Court: Illinois Supreme Court

273 Ill. 194

112 N.E. 664

MILLER

v.SINCERE et al.

No. 10463.

Supreme Court of Illinois.

April 20, 1916.

Rehearing Denied June 8, 1916.

Appeal from Circuit Court, Cook County; John Gibbons, Judge.

Action by Allen P. Miller against Charles Sincere and others. Judgment for defendant on overruling plaintiff's demurrer and his refusal to plead over, and he appeals. Reversed and remanded.

Ashcraft & Ashcraft, of Chicago (E. M. Ashcraft, of Chicago, of counsel), for appellant.

Henry S. Robbins, of Chicago (Harry C. Levinson, of Chicago, of counsel), for appellees.

CRAIG, J.

Appellant, plaintiff in the court below, brought suit in assumpsit against appellees to recover moneys paid by the plaintiff to the defendants, and which it was alleged was lost to the plaintiff in different transactions conducted by the defendants, as brokers, for the plaintiff in gambling on futures in grain. The first and second counts of the declaration are similar to the counts of the declaration heretofore approved by this court in the case of Kruse v. Kennett, 181 Ill. 199, 54 N. E. 965. The defendants filed pleas of the general issue, pleas denying joint liability and special pleas, setting out in the special pleas that all the contracts and transactions sued on and mentioned in the first and second counts of the declaration were made by the defendants upon a regular board of trade or commercial exchange, to wit, the Board of Trade of the city of Chicago, and were so executed upon orders given by the plaintiff to the defendants and by them executed upon such exchange. The pleas are based upon an amendment to section 132 of the Criminal Code, enacted by the Legislature in 1913. Laws 1913, p. 256. The plaintiff filed replications to all pleas except the special pleas above referred to and filed general and special demurrers to those pleas, alleging the amendment of 1913 was unconstitutional. The demurrers were overruled, and the plaintiff electing to stand by the same, judgment was entered against him, and this appeal followed.

The section of the statute on which the declaration was based is section 132 of the Criminal Code (Hurd's Stat. 1913, p. 832), which provides, generally, that losses incurred by gaming may be recovered by the loser from the winner. In construing this statute as it existed after the revision of the Criminal Code in 1874 until the amendment of 1913 above referred to, this court held that an action would lie under section 132 to recover money lost at gaming against a broker or commission man, and that such broker or commission man who received money or property to be used in the payment of losses incurred in transactions in grain which would be gambling contracts under section 130 of the Criminal Code, which prohibits the giving of options to buy or sell at a future time grain or other commodities, stock of any railroad or other company, etc., is a ‘winner’ within the meaning of section 132, and subject to the penalty imposed thereby. Kruse v. Kennett, supra; Jamieson v. Wallace, 167 Ill. 388, 47 N. E. 762,59 Am. St. Rep. 302;Pearce v. Foote, 113 Ill. 228, 55 Am. Rep. 414.

The sole question raised by the assignments of error and presented by this appeal is as to the constitutionality of the part herein italicized of section 132 of the Criminal Code, which is as follows:

‘Any person who shall, at any time or sitting, by playing at cards, dice or any other game or games, or by betting on the side or hands of such as do game, or by any wager or bet upon any race, fight, pastime, sport, lot, chance, casualty, election or unknown or contingent event whatever, lose to any person, so playing or betting, any sum of money, or other valuable thing, amounting in the whole to the sum of $10, and shall pay or deliver the same or any part thereof, the person so losing and paying or delivering the same, shall be at liberty to sue for and recover the money, goods or other valuable thing, so lost and paid or delivered, or any part thereof, or the full value of the same, by action of debt, replevin, assumpsit, or trover, or proceeding in chancery, from the winner thereof, with costs, in any court of competent jurisdiction. In any such action at law it shall be sufficient for the plaintiff to declare generally as in actions of debt or assumpsit for money had and received by the defendant to the plaintiff's use, or as in actions of replevin or trover upon a supposed finding and the detaining or converting the property of the plaintiff to the use of the defendant, whereby an action bath accrued to the plaintiff according to the form of this act, without setting forth the special matter. 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 and other things, with costs of suit, by special action on the case, against such winner aforesaid; one-half to use of the county, and the other to the person suing. No person who accepts from another person for transmission, and transmits, either in his own name, or in the name of such other person, any order for any transaction to be made upon, or who executes any order given to him by another person on, any regular board of trade or commercial or stock exchange, shall, under any circumstances, be deemed a ‘winner’ of any moneys lost by such other person in or through any such transactions.'

The part of this section not italicized was inserted as section 132 of the ‘Act to revise the law in relation to criminal jurisprudence,’ commonly known as the Criminal Code, adopted in 1874. The part italicized was added by way of amendment in 1913.

It is contended by appellant that this amendment is in violation of the Fourteenth Amendment to the Constitution of the United States, also of section 2 of article 2, and of the following provisions of section 22 of article 4 of the Constitution of Illinois:

‘The General Assembly shall not pass local or special laws in any of the following enumerated cases, that is to say, for * * * remitting fines, penalties or forfeitures; * * * granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever. In all other cases where a general law can be made applicable, no special law shall be enacted.’

It is insisted by the appellees that the amendment in question does not violate any of the constitutional provisions referred to; also that appellant cannot attack the statute as class legislation, because he does not belong to the class discriminated against, and that there is no discrimination, because section 132 does not confer on the loser in an ordinary wager the right to recover his losses from his own agent. It is further claimed by appellees that the Legislature, in enacting section 132, was exercising its right to make criminal laws, and, if construed to create a right to recover against agents or losers in other bets, it does not discriminate in the constitutional sense.

As hereinbefore stated, section 132 of the Criminal Code, as construed by this court in connection with section 130, applies to brokers or agents who negotiated transactions in grain in the nature of options or gambling transactions in which it was agreed or understood that no grain or other commodity was to be delivered, but that settlements were to be made according to the market price or the difference between the market price when the transaction was made and when the option or trade was closed. In other words, as construed by this court in the cases before referred to, the statute can be considered as if parties acting in the capacity of appellees in this case had been expressly named in that statute. The amendment of 1913 in question does not purport in all cases to exempt an agent or broker or to exempt all agents or brokers from the provisions of section 132 as amended. It merely provides that no person who accepts from another person for transmission, and transmits either in his own name or in the name of such other person, any...