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Opinion of the Court.
a pure question of fact, upon which evidence was introduced by both parties, and the jury, by the verdict, found against appellant,—that no notice of cancellation had been given. That finding was affirmed in the Appellate Court, and the judgment of that court is conclusive here, upon that branch of the case.
There is, therefore, no necessity of entering upon the discussion of the legal effect of a notice of cancellation served on the agents, because that question does not properly arise on the record. As the case stands here no notice whatever was served.
Counsel for appellant have urged, seemingly with much confidence, that a notice of cancellation was served by appellant on Ryan & Co., and that the facts upon that question are not controverted. In this they have misapprehended the real condition of the record. There was evidence before the jury tending to prove that appellant had not notified Ryan & Co. of the cancellation of the policy,—and that testimony, in connection with the evidence introduced by appellees, although it may have been slight, rendered the facts controverted. It may be that the evidence upon that question preponderated in favor of appellant. It may be that the verdict of the jury on that point was contrary to the weight of the evidence, and should have been set aside by the trial court, and perhaps the judgment of the circuit court ought to have been reversed in the Appellate Court, on the ground that the evidence upon the question of notice preponderated in appellant's favor; but be that as it may, under the statute the judgment of the Appellate Court upon such a question is final, and not subject to review here.
As no substantial error appears in the record, the judgment will be affirmed.
110 173 178 291 Sla 05
1. STATUTE-a8 embracing more than one subject-of the Criminal Code, in providing various remedies for the suppression of gambling. The latter part of section 132 of the Criminal Code, which is entitled “An act to revise the law in relation to criminal jurisprudence," and which authorizes the party losing money by playing at cards, or other games, to recover back the money or thing lost, and on default of bringing suit for such recovery within a time limited by the statute, giving a right of action to any person to sue for and recover treble the value of the money, goods, chattels or other things lost at gaming, by special action on the case against the winner, onehalf to the use of the county and the other to the person suing, is not in contravention of the constitutional provision that “no act hereafter passed shall embrace more than one subject, and that shall be expressed in the title," etc.
2. This constitutional provision has always received a liberal construction, and the courts hold, substantially, that there may be included in an act any means which are reasonably adapted to secure the object indicated by the title, without infringing such provision.
3. For the purpose of suppressing and punishing crime, the legislature may constitutionally provide punishments other than by indictment, a public prosecution, and fine on conviction. It may, in addition, provide for a civil action in favor of the party injured, or give a penal action at the suit of any one who will prosecute for the same, in which the guilty party may be subjected to fine, penalty, forfeiture or damages. It matters not by what mode the recovery is had, --whether by a criminal or civil procedure, -nor what is the name given to the means adopted.
4. The fact that a statute confessedly constitutional is incorporated into a section of the Criminal Code, giving a right of action against the winner of money or other property at cards or other game, and inflicting a forfeiture or penalty, which for many years before had constituted a separate and independent act, will not authorize the courts to hold the same unconstitutional becanse arranged under the head of the Criminal Code, where its effect and tendency is the suppression of the crime of gambling. Such change indicates rather that such civil remedy is regarded as in the nature of a punishment, by the law-making power.
WRIT OF ERROR to the Superior Court of Cook county; the Hon. SIDNEY Smith, Judge, presiding.
Brief for the Plaintiff in Error.
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.
Brief for the Defendant in Error. Opinion of the Court.
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 s'ıbject 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
Opinion of the Court.
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 con