A certificate of the presiding judge of the state court made
after the decision to the effect that a federal question was
considered and decided, cannot confer jurisdiction on this Court
where the record does not otherwise show it to exist.
When the court makes such a certificate and orders it to be
attached to and form part of the record itself, it may be
sufficient to show that federal questions were before the state
court decided by it so that this Court may pass upon those
questions which are specified, but the statement that the plaintiff
in error made a general contention that the statute involved and
proceedings thereunder were an invasion of his private rights in
violation of the Constitution is too vague to raise any federal
question.
The suppression of gambling is within the police power of the
state, and it may make a judgment against those winning the money a
lien upon property owned by another and in which the gambling is
conducted with the knowledge and consent of the owner, and such a
statute does not deprive the owner of his property without due
process of law.
Such a statute does not deprive the owner of the property upon
which the judgment is made a lien of his property without due
process of law because it does not provide for trial by jury in the
action to enforce the lien.
The state can give the whole or any part of the amount
recoverable under such a statute to the informer.
The plaintiff in error in these cases seeks to review the
judgments of the Supreme Court of Ohio affirming judgments
recovered against him by the defendant in error in one of the
circuit courts of Ohio. The two cases involve the same question,
which relates to the validity of the sections of the statute of the
State of Ohio in regard to gambling, known as §§ 4270,
4273, and 4275 of the Revised Statutes of that state. The sections
are set forth in the margin.
*
Page 199 U. S. 213
The defendant in error commenced these actions in the Court of
Common Pleas of Hancock County, under § 4275, for the purpose
of making certain judgments, recovered by her against other
parties, a lien on the property of the plaintiff in error to the
extent of those judgments. The defendant demurred to the petition
in each case. One of the grounds of demurrer was that the petition
showed a former judgment in favor of defendant for the same cause
of action. The demurrers were sustained, and judgments to that
effect were affirmed on error by the circuit court; but the supreme
court reversed them and remanded the cases for further proceedings.
62 Ohio St. 132. The defendant then answered, and the cases went to
trial in the common pleas, where plaintiff recovered judgments in
her favor. On appeal in each case to the Circuit Court of Hancock
County, a trial was had
de novo which resulted in
judgments in favor of plaintiff, 24 Ohio C.C. 333, which were
affirmed, without any opinion, by the Supreme Court of Ohio. 70
Ohio St. 437. The defendant below has brought the cases here by
writs of error.
The following are the facts upon which the questions arise:
Page 199 U. S. 214
At the March term, 1895, of the Court of Common Pleas for
Hancock County, the defendant in error brought her action under the
above section 4273 to recover from the defendants in that suit, who
were named Clifford, Gassman, and Marvin (the last named being this
plaintiff in error), moneys alleged to have been lost by the
plaintiff's husband in gambling (and won by them) between the
twentieth day of March, 1893, and the nineteenth day of March,
1894. She subsequently brought another action at the September
term, 1896, in the same court of common pleas against the same
parties to recover moneys alleged to have been so lost and won
between March 19 and June 19, 1894. In the first action, she
recovered $3,473 and costs against all three defendants, and in the
second she recovered $1,300 and costs against the same defendants.
Those judgments were subsequently reversed on error, by the circuit
court, as to Marvin, and affirmed as to the other defendants.
The plaintiff below then commenced these actions in the Court of
Common Pleas of Hancock County against the defendant Marvin as the
owner of the premises in which the gambling was carried on, to make
the judgments theretofore obtained by her against Clifford and
Gassman a lien upon the building of which Marvin, the defendant,
was the owner, on the ground that he knowingly permitted the same
to be used by them for gambling purposes. The petition in each case
stated in substance the ownership by defendant Marvin of the
property where the gambling was carried on; that Clifford and
Gassman carried on gambling there in violation of law; that the
defendant knowingly permitted his building to be so used. The
petition then alleged the recovery of a judgment by plaintiff
against the defendants Clifford, Gassman, and Marvin for the amount
stated in the judgment; that the action was brought pursuant to
section 4273 of the Revised Statutes of Ohio to recover from the
defendants money staked and betted by plaintiff's husband, and the
judgment recovered was for the amount found by the court to have
been staked and betted
Page 199 U. S. 215
by plaintiff's husband and won by the defendant; that the
judgment was, on error, reversed as to Marvin but affirmed as to
the other defendants, and that the judgment remained in full force
as to them, and was wholly unpaid; that the said games of chance,
"on which said money was staked and betted and lost" by plaintiff's
husband to the defendants Clifford and Gassman were played at the
rooms in defendant Marvin's building and while defendant knowingly
permitted the same to be used by them for such purpose. The prayer
was to have the judgment declared a lien on the building, and that
it be sold, etc.
The defendant, in his answer in each case, admitted the
ownership of the premises at the times alleged in the petition, and
also the recovery of the judgment as stated in the petition, and
that such judgment as to the defendant Marvin was reversed, and the
defendant denied the other allegations in the petition. He
subsequently filed an amended answer setting up the Ohio statute of
limitations. The cases were tried substantially as one case in the
common pleas, and resulted in judgments in favor of the plaintiff.
Upon appeal to the circuit court, a retrial of the case was had. 24
Ohio C.C. 333. On that trial, it was admitted that, at the times
mentioned in the petition, the premises described therein were used
for gambling purposes by Clifford and Gassman, that they are the
same premises in which the money described in judgment or
represented by the judgments set up in the petition are claimed to
have been lost, but, not admitting that plaintiff's husband in fact
gambled with Clifford and Gassman between March 19, 1893, and June
20, 1894, it is admitted for the purposes of this action that, if
he did, such gambling was done in the building and upon the
premises of the defendant described in the petition. It was also
conceded that the judgments were rendered against Clifford and
Gassman and that they occupied no other premises and conducted no
gambling during the periods specified in the petition except upon
the premises described in the petition.
Page 199 U. S. 216
In the course of the trial, the judgments against Clifford and
Gassman were offered and received in evidence under a general
objection on the part of the defendant Marvin.
The plaintiff also proved, outside the record of the Clifford
and Gassman judgments, by a witness called by her, the fact of the
gambling and the amount lost and the place where it was lost. The
witness having stated that he had lost the money to the full amount
represented by the judgments in gambling, was asked to state
whether he had lost it at Clifford and Gassman's. This question was
objected to at the very moment that the witness answered that he
had, the objection being as follows:
"Counsel on behalf of defendant Marvin objected to the above
answer and moved the court to strike out so much of the answer as
relates to the fact and the extent of the loss on the ground that
it is not alleged in the petition, and is not an issue of fact in
the case. Which motion the court overruled, to which ruling of the
court the defendant then and there excepted."
The witness then again stated, under this objection, that the
moneys were lost at gaming in this building and were represented by
these judgments, and that the moneys were lost as stated in the
petition, and at Clifford and Gassman's.
There was also evidence given on the trial tending to prove that
the premises were not only used by Clifford and Gassman for
gambling purposes during the times mentioned in the petition, but
that such user was with the knowledge of the defendant Marvin, and
that he knowingly permitted the same.
Upon the trial, the defendant gave no evidence.
The circuit court, in giving judgment for the plaintiff, found
these facts, and stated, 24 Ohio C.C. 333, that, in an action under
section 4275 to subject the premises where the gaming was carried
on and the money lost to the payment of a judgment recovered
against the winner, such judgment, when not impeached for fraud or
collusion, was conclusive that the moneys lost and winnings
secured, which caused the plaintiff's injury, were lost in gaming,
and were won by the
Page 199 U. S. 217
defendant in the judgment; that the same were won and lost in
violation of law, and that the plaintiff, in consequence thereof,
sustained damages to the amount of the judgment; that such
judgments as to these facts are not open to dispute by the owner of
the premises in an action against him under that section.
The defendant Marvin then brought the cases by writs of error to
the supreme court of the state for review, where they were affirmed
without any opinion; but, some weeks after the mandate to the court
below had been issued from the supreme court, that court, on motion
of the plaintiff in error, ordered what is termed a "journal entry"
to be made, as follows:
"
Journal Entry"
"Whereupon, on motion of said plaintiff in error, William
Marvin, the court order it to be certified and made part of the
record of this case and of the judgment of affirmance heretofore
entered herein that this action is founded upon sections forty-two
hundred and seventy-three (4273) and forty-two hundred and
seventy-five (4275) of the Revised Statutes of Ohio on the subject
of gaming."
"It is further certified that said plaintiff in error set up in
his petition in error asking the reversal of the judgment of the
Circuit Court of Hancock County, Ohio, that said section of said
statutes and the proceedings of said circuit court had thereunder
were repugnant to section one, article fourteen of the amendments
to the Constitution of the United States, and repugnant to article
one, section nine, and article one, section ten, and section three
of article three of said United States Constitution. Also that said
sections of said statutes and the proceedings had thereunder were
claimed and set up by plaintiff in error to be an invasion of his
private right of property, in violation of said Constitution and
amendments. That said judgment of affirmance was in favor of the
validity of said statutes and of said proceedings had thereunder,
and
Page 199 U. S. 218
that they were not repugnant to any of the provisions of said
Constitution or of the amendments thereto. "
Page 199 U. S. 222
MR. JUSTICE PECKHAM, after making the foregoing statement,
delivered the opinion of the Court.
The plaintiff in error seeks to reverse the judgments herein,
based on the gaming statute of Ohio, because, as he insists, that
statute is unconstitutional on several different grounds: first
because it is (as he avers) an unconstitutional extension of the
police power of the state, resulting in the taking of the property
of the plaintiff in error for the benefit of the defendant in error
-- or, in other words, it results in the taking of the property of
the plaintiff in error without his consent, for a private purpose,
and that it is an invasion of his private right of property, in
violation of the federal Constitution; second, because the statute
denies or does not provide for an exercise of the right of trial by
jury, and therefore a judgment founded upon it is obtained without
due process of law; third, because the judgment first obtained
against the persons who actually won the money is made conclusive
evidence against the plaintiff in error of the amount of money thus
lost, although he was neither a party nor privy to that judgment,
as it was reversed as to him, and he was thereupon dismissed from
the case.
A reference to the record does not show that any one of these
questions was raised either by the pleadings or on the trial of the
case. The only evidence that any question was
Page 199 U. S. 223
raised in the supreme court assailing the validity of the
statute as a violation of any provision of the federal Constitution
consists of a statement in the petition in error to the supreme
court, that the statute was a violation of certain sections of the
federal Constitution, and in the certificate of the Supreme Court
of Ohio, which that court ordered to be made a part of the record
and which is above set forth. It is a certificate from the court,
as distinguished from one by an individual judge.
The petition in error does not show that any question involving
the federal Constitution was actually argued or brought to the
attention of the supreme court. It is well settled in this Court
that a certificate from a presiding judge of the state court, made
after the decision of the case in that court, to the effect that a
federal question was considered and decided by the court adversely
to the plaintiff in error, cannot confer jurisdiction on this Court
where the record does not otherwise show it to exist; that the
effect of such a certificate is to make more certain and specific
what is too general and indefinite in the record itself, but it is
incompetent to originate the federal question.
Dibble v.
Bellingham Bay Land Co., 163 U. S. 63;
Henkel v. Cincinnati, 177 U.S. 170;
Fullerton v.
Texas, 196 U. S. 192. As
the certificate in the case at bar was made by the court, and was
ordered by it to be attached to and form part of the record itself,
it is perhaps sufficient to show that some questions of a federal
nature were before that court, and decided by it. It is true the
certificate is quite loose in its statement as to what was the
nature or character of these questions. It is certified that the
plaintiff in error contended that the sections of the statute and
the proceedings of the circuit court had thereunder were repugnant
to those sections of the Constitution of the United States referred
to in the certificate. By reference to them, it will be seen that
Section 1, Article XIV, contains several provisions quite distinct
from, and having no relation to, each other, and the certificate
does not state which one of the provisions of that section was
claimed
Page 199 U. S. 224
to have been violated by the statute in question. Section 9 of
Article I has itself seven subdivisions, and it would be difficult
even to guess which particular provision the plaintiff in error
claimed was violated by the statute. Section 10 of the same article
is also referred to as having been violated by the statute; also
Article III, Section 3, which relates to the trial of all crimes by
jury. Then there is stated to have been made by the plaintiff in
error a general contention that the statute and proceedings
thereunder were an invasion of his private right of property in
violation of the federal Constitution and its amendments.
A more general statement of the presentation of the federal
questions to a state court could scarcely be made. It is almost
impossible to determine from such certificate what federal question
was decided in the case. We have heretofore held that an objection
very similar to this raised no federal question.
Clarke v.
McDade, 165 U. S. 168.
Assuming, however, that, by reference to the first section of
the Fourteenth Amendment, the question of the illegal extension of
the police power of the state may be raised under the claim that a
judgment founded upon the statute would permit the taking of the
property of the plaintiff in error without due process of law, we
are of opinion that the objection is without merit. For a great
many years past, gambling has been very generally in this country
regarded as a vice, to be prevented and suppressed in the interest
of the public morals and the public welfare. The power of the state
to enact laws to suppress gambling cannot be doubted, and, as a
means to that end, we have no doubt of its power to provide that
the owner of the building in which gambling is conducted who
knowingly looks on and permits such gambling can be made liable in
his property which is thus used, to pay a judgment against those
who won the money, as is provided in the statute in question. That
statute, or one somewhat similar to it (without the conclusive
feature of the judgment as evidence in the action to charge the
property of the owner of the building
Page 199 U. S. 225
where the gambling was carried on) has been in force in Ohio
ever since at least 1831, and similar legislation is found upon
that subject or upon that of the regulation of the sale of liquor
in most of the states of the Union. The plain object of this
legislation is to discourage and, if possible, prevent gambling.
The liability of the owner of the building to make good the loss
sustained under the circumstances set forth in the statute was
clearly part of the means resorted to by the legislature for the
purpose of suppressing the evil in the interest of the public
morals and welfare. We are aware of no provision in the federal
Constitution which prevents this kind of legislation in a state for
such a purpose. To say that it must be limited to a provision
allowing a recovery of the money by the one who lost it would be in
effect to hold invalid all legislation providing for proceedings in
the nature of
qui tam actions. Statutes providing for
actions by a common informer, who himself had no interest whatever
in the controversy other than that given by statute, have been in
existence for hundreds of years in England, and in this country
ever since the foundation of our government. The right to recover
the penalty or forfeiture granted by statute is frequently given to
the first common informer who brings the action, although he has no
interest in the matter whatever except as such informer. 3 Bl.Com.
c. 9, m.p. 161; 2 Bl.Com. c. 29, m.p. 437; 2 Hawk.P.C., 8th ed.,
368; 1 Selwyn, Law of N.P. 621;
Dozier v. Williams, 47
Miss. 605;
Beadleston v. Sprague (1810), 6 Johns. 101;
Caswell v. Allen, 10 Johns. 118;
Parker v.
Colcord (1819), 2 N.H. 36;
Pike v. Madbury (1841), 12
N.H. 262;
Commonwealth v. Churchill (1809), 5 Mass.
174.
Legislation giving an interest in the forfeiture to a common
informer has been frequent in congressional legislation relating to
revenue cases. It is referred to in the Act of March 3, 1797, 1
Stat. 506, and cases arising under its provisions are to be found
in
23 U. S. 10 Wheat.
246,
United States v. Morris, and
31 U. S. 6 Pet.
404,
McLane v. United States.
Page 199 U. S. 226
And in 1861, in 12 Stat. 292, 296, sec. 11, one moiety of the
forfeiture is given "to him who shall first sue for the same."
There can be no doubt of the right of the government to give the
whole instead of a moiety of the forfeiture to the informer.
Second. The contention on the part of the plaintiff in error
that the statute violates the federal Constitution because it does
not provide for or permit trial by jury is equally without merit.
Maxwell v. Dow, 176 U. S. 581.
Third. The contention that the statute violates the first
section of the Fourteenth Amendment because, under it, as is
averred, a judgment against those who won the money at gambling,
when not impeached for fraud or collusion, is conclusive evidence
of the amount lost in an action against the owner of the property
where the money was lost, who was neither party nor privy to such
judgment, cannot, in the state of this record, be here raised. Upon
the trial, the defendant in error offered the judgment against
Clifford and Gassman in evidence, and it was received under a
general objection made by the plaintiff in error. By reference to
the record, it appears that the plaintiff in error on the trial
conceded that the judgment was rendered against Clifford and
Gassmen. The formal putting in evidence of a judgment, the
existence of which was conceded, can raise no question whatever. At
a subsequent stage of the trial, oral evidence was given outside of
the record of the judgments (under objection by the plaintiff in
error that there was no such issue in the case) of the amount of
money that was in fact lost at play, and that it was represented
by, and was as large as, the amount stated in the judgment offered
in evidence.
One of the grounds of objection to the evidence made by the
plaintiff in error was that neither the fact nor the extent of the
loss was alleged in the petition or was an issue in the case. The
petition in substance contained both averments, and the answer
denied them. There was such an issue, although defendant, in his
objection, overlooked it. The objection
Page 199 U. S. 227
was overruled, and the evidence given. It surely cannot now be
pretended that the plaintiff in error was thereby harmed. Can he
now be heard to say that the statute is void because of the
conclusive character which he avers is therein given to the
judgment, when there was proof outside the record (given against
his own objection and averment that the fact was not in issue)
showing the amount of money lost? If the statute do mean that such
prior judgment is conclusive, what legal interest has the plaintiff
in error in the question when there is other evidence in his case,
although given against his objection that there was no issue on
that fact? The whole statute is not void, even if it mean that the
judgment is conclusive, and when other evidence is given, the
(alleged) invalid provision is eliminated in such case, and the
party who insists there is no issue as to loss, not being harmed,
cannot raise the question.
Albany County v. Stanley,
105 U. S. 305,
105 U. S. 311;
Clark v. Kansas City, 176 U. S. 114,
176 U. S. 118.
The statement of the circuit court as to the conclusive character
of a judgment was, as applied to the plaintiff in error, a mere
abstraction. It does not appear, even by the certificate of the
supreme court, that the plaintiff in error claimed the protection
of the first section of the Fourteenth Amendment on the ground of
the alleged erroneous decision of the court below on this question,
nor does it appear that the supreme court itself gave any opinion
upon or determined it. These facts must appear in the record.
Dewey v. Des Moines, 173 U. S. 193,
173 U. S. 197;
Chapin v. Fye, 179 U. S. 127. The
certificate that the plaintiff in error claimed the protection of
that section is fully satisfied by treating it as raising the
question of the invalidity of the statute on the ground of an
illegal extension of the police power, and also because it did not
permit a trial by jury, and thereby, as contended, denying due
process of law. These grounds we have already considered. We cannot
and ought not to assume that the supreme court, in this state of
the record, took cognizance of the question of the conclusiveness
of the judgment, and the certificate does not show that the court
did so.
Page 199 U. S. 228
In what has been said, we do not wish it to be understood that
this Court intimates an opinion upon the alleged invalidity of the
statute upon the above ground. We simply say that the plaintiff in
error cannot raise that question.
The judgments of the Supreme Court of Ohio are
Affirmed.
*
"SEC. 4270. If any person, by playing at any game, or by means
of any bet or wager, loses to any other person any sum of money or
other thing of value, and pays or delivers the same, or any part
thereof, to the winner, the person who so loses and pays or
delivers may, at any time within six months next after such loss
and payment or delivery, sue for and recover the money or thing of
value so lost and paid or delivered, or any part thereof, from the
winner thereof, with costs of suit, by civil action founded on this
chapter, before any court of competent jurisdiction."
"SEC. 4273. If the person losing such money or thing of value as
provided in section 4270 does not, within the time therein
specified, without collusion or deceit, sue, and with effect
prosecute, for the money or thing of value so lost and paid or
delivered, any person may sue for and recover the same, with costs
of suit, against any winner as aforesaid for the use of the person
prosecuting the same."
"SEC. 4275. The property, both real and personal, of a defendant
against whom a judgment is rendered under this chapter, either for
fines, costs, or to recover money or other thing of value lost or
paid, shall be liable therefor, without exemption, and such
judgment shall be a lien thereon until paid; if the owner of the
building in which the money was lost knowingly permits it to be
used for gaming purposes, such building and the real estate upon
which it stands shall be liable therefor in the same manner, and
the guardian or trustee of a minor, insane person, or idiot, who
permits any property under his charge to be used for gaming
purposes, and the same becomes liable on account thereof, shall be
liable to his ward for the amount thereof."
