v.

BELLE B. TROUT.

(See S. C. Reporter’s ed. 212-228.)

law— subjecting: premises to judg¬ ment for money lost there at play.—

The owner of a building which he knowingly permits to he used for gaming purposes is not deprived of his property without due process of law by Ohio Rev. Stat. § 4275, which au¬ thorizes an action to subject such building to the payment of a judgment obtained by an in¬ former for the recovery of money lost there at play.

law— necessity of jury trial.— A judg¬ ment founded upon a state statute is not wanting in due process of law because the statute does not provide for or permit a trial by jury.

law — who may raise ynestion.— The ob¬ jection that due process of law is not afforded an owner of property used for gaming pur¬ poses by Ohio Rev. Stat. § 4275, under which a judgment against those who won money there at gambling, when not impeached for fraud or collusion, is made conclusive evi¬ dence <?f the amount of money lost in an ac¬ tion to charge the property of the owner, is not open to such an owner where there is proof outside the record of the judgment, showing the amount of money lost, given against his objection that the fact was not in issue.

[Nos. 19, 20.]

Note. _ As to what constitutes due process

of law—see Kuntz v. Sumption, 2 L.R.A. 655, and note; Re Gannon, 5 L.R.A. 3d9, and note; TJlman v. Baltimore, 11 L.R.A. 224, and note , and Gilman v. Tucker, 13 L.R.A. 304, and note. And see notes to People O’Brien 2 L.R.A. 255 ; Pearson v. Yewdall, 24 L. ed. U. S. 4o6 , and Wilson v. North Carolina, 42 L. ed. U. S.

199 U. S.

Argued October 20, 23, 1905. Decided No¬ vember 13, 1905.

T N ERROR to the Supreme Court of the -*- State of Ohio to review two judgments affirming judgments of the Circuit Court of Hancock County, in that state, in favor of plaintiff in actions to subject the property of the owner of the building where gaming was carried on, with his knowledge and as¬ sent, to the payment of judgments for the recovery of money lost there at play. Af¬ firmed.

See same case below, 70 Ohio St. 437, 72 N. E. 1161, 1162; on first writ of error, 62 Ohio St. 132, 56 N. E. 655.

Statement by Mr. Justice Peckham:

The plaintiff in error in these cases seeks to review, the judgments of the supreme court of Ohio, affirming judgments recov¬ ered 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.t

“tSec. 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 § 4270 does not, within the time therein specified, without collusion or deceit, sue, and with effect prose¬ cute, 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 per¬ son prosecuting the same.

“Sec. 4275. The property, both real and per¬ sonal, 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, with¬ out exemption, and such judgment shall be a lien thereon until paid ; if the owner of the building in which the money was lost know¬ ingly 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 prop¬ erty under his charge to be used for gaming purposes, and the same becomes liable on ac¬ count thereof, shall be liable to his ward for the amount thereof.”

157

213-215

Oct. Tekm,

Supreme Court of the United States.

213] *The defendant in error commenced these actions in the court of common pleas of Hancock county, under § 4275, for the pur¬ pose of making certain judgments, recov¬ ered 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 pe¬ tition showed a former judgment in favor of defendant for the same cause of action. The demurrers -were sustained, and judg¬ ments 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, 56 N. E. 655. 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 judg¬ ments 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, 72 N. E. 1161, 1162. The de¬ fendant below has brought the cases here by writs of error.

The following are the facts upon which

the questions arise: *At the March term, 1895, of the court of common pleas for Han¬ cock county, the defendant in error brought her action under the above § 4273, to recov¬ er from the defendants in that suit, who were named Clifford, Gassman, and Marvin (the last named being this plaintiff in er¬ ror ) , moneys alleged to have been lost by the plaintiff’s husband in gambling (and won by them) between the 20th day of March, 1893, and the 19th day of March,

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 re¬ covered $1,300 and costs against the same defendants. Those judgments were subse¬ quently 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 Mar¬ vin 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 know¬ ingly permitted the same to be used by them for gambling purposes. The petition in each 158

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 viola¬ tion of law; that the defendant knowingly permitted his building to be so used. The petition then alleged the recovery of a judg¬ ment by plaintiff against the defendants Clifford, Gassman, and Marvin, for the amount stated in the judgment ; that the action 'was brought pursuant to § 4273 of the Revised Statutes of Ohio, to recover from the defendants money staked and betted by plaintiff’s husband, and the judgment re¬ covered was for the amount found by the court to have been staked and betted *bv

plaintiff’s husband and won by the defend¬ ants; that the judgment was, on error, re¬ versed as to Marvin, but affirmed as to the other defendants, and that the judgment re¬ mained in full force as to them, and was whol¬ ly unpaid ; that the said games of chance. -‘on which said money was staked and betted and lost” by plaintiff’s husband, to the defend¬ ants 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 pur¬ pose. The prayer was to have the judg¬ ment 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 stat¬ ute 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 cir¬ cuit court a retrial of the case was had. 24 Ohio C. C. 333. On that trial it was admit¬ ted that at the times mentioned in the peti¬ tion 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 Gass¬ man 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 Gass¬ man, and that they occupied no other prem- ises; and conducted no gambling during

199 U. S.

Marvin v. Trout.

215-218

the periods specified in the petition except upon the premises described in the petition.

against Clifford and Gassman were offered and received in evidence, under a general objection on the part of the defendant Mar¬ vin.

The plaintiff also proved, outside the rec¬ ord of the Clifford and Gassman judg¬ ments, 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 judg¬ ments, in gambling, was asked to state whether he had lost it at Clifford and Gass- man’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 ob¬ jected 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 faet in the case. Which motion the court over¬ ruled, to which ruling of the court the de¬ fendant then and there excepted.”

The witness then again stated, under this objection, that the moneys were lost at gam¬ ing 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 Gass¬ man 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 evi¬

dence.

The circuit court, in giving judgment for the plaintiff, found these facts, and stated (24 Ohio C. C. 333) that in an action un¬ der § 4275, to subject the premises where the gaming was carried on and the money lost, to the payment of a judgment recov¬ ered against the winner, such judgment, when not impeached for fraud or collusion, was conclusive that the moneys lost and winnings secured, which caused the plain¬ tiff’s injury, were lost in gaming, and were 17] won by the 'defendant in the judgment; that the same were won and lost in viola¬ tion of law, and that the plaintiff, in con¬ sequence thereof, sustained damages to the amount of the judgment; that such judg¬ ments 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

199 U. S.

cases by writs of error to the supreme court of the state for review, where they were af¬ firmed, 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 rec¬ ord 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 sub¬ ject of gaming.

It is further certified that said plaintiff in error set up in his petition in error, ask¬ ing the reversal of the judgment of the circuit court of Hancock county, Ohio, that said sections of said statutes and the proceedings of said circuit court had there¬ under were repugnant to section one, article fourteen of the amendments to the Consti¬ tution 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 amend¬ ments. That said judgment of affirmance was in favor of the validity of said statutes and of said proceedings had thereunder, and 'that they were not repugnant to any [218 J of the provisions of said Constitution or of the amendments thereto.

Mr. George F. Pendleton argued the cause and filed a brief for plaintiff in error :

The legislature and the courts cannot take the private property of one person and give it to another.

Chicago & E. R. Go. v. Keith, 67 Ohio St.

279, 60 L.R.A. 525, 65 N. E. 1020; Bow¬ man v. Middleton, 1 Bay, 252; Cooley, Const.

Lim. 6th ed. p. 198; Taylor v. Ross County,

23 Ohio St. 22.

Making this judgment conclusive violated Mr. Marvin’s right of property under the Constitution.

2 Tiedeman, State & Federal Control of Persons & Property, § 178, p. 871.

If a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects,

15S

Supreme Court of the United States.

Oct. Teem,

or is a palpable invasion of rights secured by the fundamental law, it is the duty of the court to so adjudge and thereby give effect to the Constitution.

1 Tiedeman, State & Federal Control of Persons & Property, p. 17; Marbury v. Madison, 1 Craneh, 137, 2 L. ed. 60; Minne¬ sota v. Barber, 136 U. S. 319, 34 L. ed. 457, 3 Tnters. Com. Rep. 185, 10 Sup. Ct. Rep.

if the crime of gambling on the real estate of the owner with his knowledge and consent is such an egregious wrong to the good morals of the state as to require rigor¬ ous measures to correct the wrong, the state has ample power to correct it, and to prevent its repetition. It can find no justi¬ fication within the 14th Amendment when it seeks to destroy or confiscate the real estate of the owner of the property where the gambling is done.

2 Tiedeman, State & Federal Control of Persons & Property, § 152, p. 763; Welch v. Stowell, 2 Dough (Mich.) 332; State ex rel. Rhodes v. Saunders, 66 N. H. 39, 18 L.R.A. 646, 25 Atl. 588.

So, the taking of the property from the owner as a punishment for allowing an il¬ legal business to be conducted in some of the rooms, and giving it as a gratuity to another person, can find no justification, in view of the protection, to the owner, of his private property, guaranteed to him by the 14th Amendment.

Cooley, Const. Lim. 6th ed. pp. 208, 707; United States v. Reese, 92 U. S. 214, 23 L. ed. 563; United States v. CruikshanJc, 92 U. S. 542, 23 L. ed. 588; Lawton v. Steele, 152 U. S. 133, 38 L. ed. 385, 14 Sup. Ct. Rep. 499; Edson v. Crangle, 62 Ohio St. 49, 56 N. E. 647.

Every exercise of the police power of the state, to be valid, must be reasonable.

State v. Marble, 72 Ohio St. 33, 70 L.R.A. 35, 106 Am. St. Rep. 570, 73 N. E.

1063 ; Freund, Pol. Powers, § 63 ; Rideout v. Knox, 148 Mass. 368, 2 L.R.A. 81, 12 Am. St. Rep. 560, 19 N. E. 390; La.wton v. Steele, supra; Plessy v. Ferguson, 163 U. S. 537, 41 L. ed. 256, 16 Sup. Ct. Rep. 1138; Wisconsin, M. t£ P. R. Go. v. Jacobson, 179 U. S. 287, 45 L. ed. 194, 21 Sup. Ct. Rep. 115; Dobbins v. Los Angeles, 195 U. S. 223, 49 L. ed. 169, 25 Sup. Ct.' Rep. 18; Chicago & E. R. Co. v. Keith, supra; Booth v. Illinois, 184 U. S. 425, 428, 429, 46 L. ed. 623, 625, 626, 22 Sup. Ct. Rep. 425; Allgeyer v. Louisiana, 165 U. S. 578, 579, 591, 41 L. ed. 832, 836, 17 Sup. Ct. Rep. 427; Minnesota v. Barber, 136 U. S. 319, 34 L. ed. 457, 3 Inters. Com. Rep. 185, 10 Sup. Ct. Rep. 862; Holden v. Hardy, 169 U. S. 366, 398, 42 L. ed. 780, 793, 18 Sup. Ct. Rep. 383; Yiclc Wo v. Hopkins, 118 U. S. 160

356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064; Connolly v. Union Sewer Pipe Co. 184 U. S. 540, 558-560, 563, 46 L. ed. 679, 689-691, 22 Sup. Ct. Rep. 431.

William Marvin is not bound by the judg¬ ment obtained by Belle B. Trout against Clifford and Gassman.' He, not being a party thereto, is not personally bound by it; and neither could it be made the basis of a claim against his real estate in the peti¬ tion described.

Iron Cliffs Co. v. Negaunee Iron Co. 197 U. S. 463, 471, 49 L. ed. 836, 840, 25 Sup. Ct. Rep. 474; New Orleans Waterworks Co. v. New Orleans, 164 U. S. 471, 480, 41 L. ed. 518, 523, 17 Sup. Ct. Rep. 161; Scott v. McNeal, 154 U. S. 34, 46, 38 L. ed. 896, 901, 14 Sup. Ct. Rep. 1108; Pennoyer v. Neff, 95 U. S. 714, 733, 24 L. ed. 565, 572; Wind¬ sor v. McVeigh, 93 U. S. 274, 277, 23 L. ed. 914, '915; Finley v. Bank of United States, 11 Wheat. 304, 307, 6 L. ed. ,480.

Mr. John Poe argued the cause and filed a brief for defendant in error:

This court would not assume jurisdiction of these cases because of the complaint here, that the holding of the Ohio courts deprives Mr. Marvin of any rights guaranteed to him by the 5th, 6th, 7th, 8th, or 9th Amend¬ ment referred to, for these were not intend¬ ed to limit the powers of the states in re¬ spect to their own people, but to operate on the national government only.

Spies v. Illinois (Ex parte Spies) 123 U. S. 131, 132, 166, 31 L. ed. 80, 86, 8 Sup. Ct. Rep. 21.

The claim here sought to be made is that the statutes of Ohio, referred to, are repug¬ nant to the Constitution of the United States; but, as no such claim was set up or made in the trial courts of Ohio, it fol¬ lows that this court would have no juris¬ diction to entertain these cases for that rea¬ son.

Spies v. Illinois {Ex parte Spies ) 123 U. S. 131, 132, 181, 31 L. ed. 80, 91,. 8 Sup. Ct. Rep. 21; Brooks v. Missouri, 124 U. S. 394, 395, 31 L. ed. 454, 456, 8 Sup. Ct. Rep. 443; French v. Hopkins, 124 U. S. 524, 31 L. ed. 536, 8 Sup. Ct. Rep. 589 ; Powell v. Brunswick County, 150 U. S. 433', 439, 37 L. ed. 1134, 1136, 14 Sup. Ct. Rep. 166; Morrison v. Watson, 154 U. S. 111-115, 38 L. ed. 928, 929, 14 Sup. Ct. Rep. 995 ; Miller v. Texas, 153 U. S. 535, 538, 539, 38 L. ed. 812-814, 14 Sup. Ct. Rep. 874; Sayward v. Denny, 158 U. S. 180-184, 39 L. ed. 941, 942, 15 Sup. Ct. Rep. 777 ; Giles v. Teasley, 193 U. S. 146-160, 48 L. ed. 655-658, 24 Sup. Ct. Rep. 359.

Ohio is not the only state where like statutes are sustained by the highest courts.

Polk County v. Hierb, 37 Iowa, 301 ; La France v. Krayer, 42 Iowa, 147 ; Bertholf v.

199 U. S.

Marvin v. Trout.

222-224

O’Reilly, 74 N. Y. 509, 30 Am. Rep. 323; Bell v. Cassem, 158 Ill. 45, 29 L.R.A. 571, 41 N. E. 1089; Booth v. People, 186 Ill. 43, 50 L.R.A. 762, 57 N. E. 798.

The liability to seizure attaches to the thing. If a man uses his property for the purposes of the violation of the laws, he loses his right to have it at all.

Dobbins’s Distillery v. United States, 96 U. S. 395, 400, 401, 24 L. ed. 637-639; The Palmyra, 12 Wheat. 1, 6 L. ed. 531 ; United States v. The Malek Adhel, 2 How. 210, 11 L. ed. 239; Munn v. Illinois, 94 U. S. 114, 24 L. ed. 77; The Ann, 9 Cranch, 289, 3 L. ed. 734; United States v. The Little Charles, 1 Brock. 380, Fed. Cas. No. 15,612; United States v. A Distillery, 2 Abb. (tL S.) 192, Fed. Cas. No. 14.965.

Due process of law does not imply or re¬ quire a jury trial.

Adler v. Whitbeck, 44 Ohio St. 568, 9 N. E. 672.

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 differ¬ ent 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 pur¬ pose, and that it is an invasion of his pri¬ vate right of property, in violation of the Federal Constitution ; second, because the statute denies or does not provide for an ex¬ ercise 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 plain¬ tiff 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 ease. The only evidence that any ques-

tion was ^raised in the supreme court, as¬ sailing the validity of the statute as a viola¬ tion of any provision of the Federal Con¬ stitution, consists of a statement in the peti¬ tion in error to the supreme court, that the statute was a violation of certain sections of the Federal Constitution, and in the certifi- 199 U. S. U. S.. Book 50.

cate 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 dis¬ tinguished from one by an individual judge.

The petition in error does not show that any question involving the Federal Consti¬ tution 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 Fed¬ eral question. Dibble v. Bellingham Bay Land Co. 163 U. S. 63, 41 L. ed. 72, 16 Sup. Ct. Rep. 939; Henkel v. Cincinnati,

177 U. S. 170, 44 L. ed. 720, 20 Sup. Ct.

Rep. 573 ; Fullerton v. Texas, 190 U. S. 192,

49 L. ed. 443, 25 Sup. Ct. Rep. 221. 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 it¬ self, it is perhaps sufficient to show that some questions of a Federal nature were be¬ fore that court, and decided by it. It is true the certificate is quite loose in its state¬ ment 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 cir¬ cuit 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 § 1, article 14, 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 sec¬ tion was claimed *to have been violated by

the statute in question. Section 9 of article 1 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 3,

§ 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 con¬ tention 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 presen¬ tation of the Federal questions to a state court could scarcely be made. It is almost ■ 161

224-226

Supreme Court of the United States.

Oct. Teem,

impossible to determine from such certificate what Federal question was decided in the case. We have heretofore held that an ob¬ jection very similar to this raised no Federal question. Clarice v. McDade, 165 U. S. 168, 41 L. ed. 673, 17 Sup. Ct. Rep. 284.

Assuming, however, that by reference to the 1st section of the 14th 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 prop¬ erty 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 in¬ terest 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 gam¬ bling 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 ques¬ tion. 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

*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 legis¬ lation is to discourage and, if possible, pre¬ vent gambling. The liability of the owner of the building to make good the loss sus¬ tained 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 Consti¬ tution which prevents this kind of legisla¬ tion in a state for such a purpose. To say that it must be limited to a provision allow¬ ing a recovery of the money by tbe one who lost it, would be in effect to hold invalid all legislation providing for pro¬ ceedings in the nature of qui tarn actions. Statutes providing for actions by a common informer, who himself had no interest what¬ ever in the controversy other than that given by statute, have been in existence for hun¬ dreds of years in England, arid in this coun¬ try ever since the foundation of our govern¬ ment. The right to recover the penalty or forfeiture granted by statute is frequently given to the first common informer who 162

brings the action, although he has no inter¬ est in the matter whatever except as such informer. 3 Bl. Com. chap. 9, m. p. 161 ; 2 Bl. Com. chap. 29, m. p.,437 ; 2 Hawk. P. C.

Sth ed. 368; 1 Sehvyn, 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; Com. v. Churchill (1809) 5 Mass. 180.

Legislation giving an interest in the for¬ feiture to a common informer has been fre¬ quent in congressional legislation relating to revenue cases. It is referred to in the act of March 3, 1797 (1 Stat. at L. 506, chap. 13,

U. S. Comp. Stat. 1901, p. 3604), and cases arising tinder its provisions are to be found in 10 Wheat. 246, 6 L. ed. 314, United States v. Morris, and 6 Pet. 404, 8 L. ed. 44-3, M’Lane v. United States.

*And in 1861, in 12 Stat. at L. 292, 296,

chap. 45, § 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 equal¬ ly without merit. Maxwell v. Dow, 176 U.

S. 581, 44 L. ed. 597, 20 Sup. Ct. Rep. 448,

Third. The contention that the statute violates the 1st section of the 14th Amend¬ ment, because under it, as is averred, a judg¬ ment 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 rec¬ ord, 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 judg¬ ment was rendered against Clifford and Gassman. 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 judg¬ ments (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 represent¬ ed by, and was as large as, the amount stat¬ ed in the judgment offered in evidence.

199 U. S.

Rankin v. Barton.

226-228

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, al¬ though defendant, in his objection, over-

looked it. The objection *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 there¬ in 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 le¬ gal 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) inval¬ id 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, 311, 26 L. ed. 1044, 1049; Clark v. Kansas City, 176 U. S. 114, 118, 44 L. ed. 392, 396, 20 Sup. Ct. Rep. 284. The state¬ ment of the circuit court as to the con¬ clusive character of a judgment was, as ap¬ plied to the plaintiff in error, a mere ab¬ straction. It does not appear, even by the certificate of the supreme court, that the plaintiff in error claimed the protec¬ tion of the 1st section of the 14th Amend¬ ment on the ground of the alleged erroneous decision of the court below on this question, nor does it appear that the supreme court it¬ self gave any opinion upon or determined it. These facts must appear in the record. Dewey v. Des Moines, 173 U. S. 193, 197, 43 L. ed. 665, 666, 19 Sup. Ct. Rep. 379; Chapin v. Fye, 179 U. S. 127, 45 L. ed. 119, 21 Sup. Ct. Rep. 71. The certificate that the plaintiff in error claimed the pro¬ tection of that section is fully satisfied by treating it as raising the question of the in¬ validity 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 al¬ ready 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 conelusiveness of the judg¬ ment, and the certificate does not show that the court did so.

199 U. S.

*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 can¬ not raise that question.

The judgments of the Supreme Court of Ohio are affirmed.