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GOVERNOR HUGHES REMARKABLE COURSE Convincing Evidence that He Attempts to Coerce Coordinate Branches of State Government The antiracing campaign of Governor Hughes of New York lias been waged with such an obstinate determination and bitterness as to excite wonder on th part of even bis friends and admirers Report lias it that the governor plays a good game of poker so it must follow that be has no moral repugnance to betting Yet lie is carrying on a crusade against wagering on race tracks that is not only remarkable but Imrdering on an insulting attitude towards the legislative and judicial departments of his state This latter phase is powerfully and illuminatingly set forth in the following recent editorial in the Sew York Sun It is more than wortn careful reading readingThe The defeat of the antiracing bill at Albany last Wednesday must in a large measure be ascribed to a protest on the part of the State Senators against dictation and the sting of tin Executive lash The question is still an active one and the issue is still vital because the Governor is not willing to submit to defeat The morning after the vote in the Senate he sent a special message to the Legislature saying I again urge you to enact appropriate legisla ¬ tion to abolish the existing discrimination in favor of race track gambling It is not a question for the Legislature whether this vice should be permitted or regulated Under the Constitution the Legislature has no right to per ¬ mit It or to regulate it Respect for law is the security of our Govern ¬ ment and the guarantees of the rights of liberty and prcporty will not long avail ICtjH poople un ¬ taught to view tlie Constitution with contempt I therefore urge you to discharge a manifest duty and to end tlie discriminations in favor of race track gambling which cupidity inspired and now seeks to maintain maintainAgain Again later in the week in a speech before the Lawyers Club at Buffalo lie returned to the attack in these words As Governor I shall throughout my term insist that the test be met It is rarely that we ara pre ¬ sented with a proposition so fundamental I say to all who are interested in upholding our institutions whatever their views on particular questions may e whatever their personal inclinations may be you cannot afford to have an issue between the Consti ¬ tution of the State and unscrupulous money power and allow the Constitution to be defeated defeatedGovernor Governor Hughes thus wagers and stakes iiis political future on the test of his power not to curl but absolutely to dominate and control a noncom ¬ pliant branch of thei Legislature There is another aspect to this question which perhaps the Governor good lawyer as be is lias not sullieiently considered Let us see whether notwithstanding his good faith tlie Governor is not in reality violating the guarantee of the right of personal liberty and the guarantee of the right of property Is he not at ¬ tempting to override the Legislature and to sup ¬ plant the Court of Appeals Is he not attempting to take from the Legislature through his ex ¬ ecutive power tlie discretion which tlie Constitution itself vests in the Legislature or in other words is lie not seeking to substitute his personal view for the judgment given by the Constitution to a co ¬ ordinate branch of the Government GovernmentThe The new Constitution which took effect on Jan nary 1 1S95 contained a provision which had never before been part of the organic law of the State the provision contained in Section 9 of Article I and reading Nor shall any lottery or the sale of lottery tickets pool selling bookmaking or any other kind of gambling hereafter be authorized or allowed within this State and the Legislature shall piss appropriate laws to prevent offenses against any of the provisions of this section sectionIn In the first place It should be noted that the Constitution does not provide that bookmaking or any other kind of gambling shall be made a crime and yet Governor Hughes insists that unless betting at a race track be made a crime the Constitution is violated Even the framcrs of the new Consti ¬ tution recognized the fact that any organic law which attempted to make every form of gambling a crime would be absolutely incapable of enforce ¬ ment Under the Governors theory of constitutional construction he does not venture to ask that every form of gambling shall be made a crime but desires that one particular form of gambling that Is to say bookmaking or betting at the race tracks shall be made a crime crimeIn In the same year 1S95 which saw the new Constitution go Into operation the Legislature passed a number of acts controlling the whole rac ¬ ing system and in an act which is known as the PercyGray law the forfeiture of the value of any money wagered was made an exclusive penalty for betting at a race course while the Penal Code made betting at any other place than a race track a crime and It Is this discrimination which excites the ire of the Governor Of the PercyGray law the Court of Appeals said The obvious purpose of the act of 1895 was to permit honest and legitimate racing and prevent tlie evils which had previously attended that Class of amusements Although It authorized horse rac ¬ ing It was Intended to guard and respect It so as to prohibit the abuses that bad hitherto existed To accomplish that end a State Racing Commission was created and the Jockey Club was practically made the supervisor of all running races and run 1 i Continaed oa ecoud page GOVERNOR HUGHES EEMARKABLE COURSE Continued from first page nhig race meetings with power to make such rea ¬ sonable rules and regulations as It might from time to time deem proper for their control controlTime Time went on and each year from 1S95 to 1907 Inclusive saw marked and steady improvement in racing in this state conducted under due super ¬ vision and control Racing in itself a healthy amusement had become a cleanly sport dear to the people and popular with hundreds of thousands whose voices have been sileut during all this contro ¬ versy versyHow How much is there of substance in the consti ¬ tutional argument of the Governor Is it real and genuine or is it plausible and specious only Mr Hughes protests against the discrimination between betting in a poolroom and betting at a race track and he argues that neither circumstance nor place should make any difference in the determination of what Is a crime and what Is not a crime There Is no great force in such an argument because there are many acts which when done In one place are offenses and yet when committed In another place are not Illegal such for Instance as getting drunk which Is a misdemeanor when Indulged in io public and yet Is not the subject of magisterial correctioa wiieh within the walls of ones own bouse 6Yefnor Hughes bej yes th t p lsv a i question which he lias discovered but he has over ¬ looked the fact that the question has been decided over and over again by our highest courts courtsOn On the ground of alleged discrimination in in ¬ flicting an exclusive penalty for betting at the race tracks different from the pcnalty provided by the Penal Code the PercyGray act of 1895 has been repeatedly assailed but it has been uniformly upheld as constitutional by the Court of Appeals The special plea which would override and nullifv the decisions of our court of last resort would not seem to bq entitled to much weight with lawyers or with the public In the Sturgig case the Appel ¬ late Division of this department In its opinion by Judge Rumsey said It is for that body the Legislature always to prescribe the extent to which they will go in punishing any particular act or whether or not a particular act shall be prescribed as a crime In doing that of course they may take into consideration the gravity of the particular offense and it would be perfectly proper also to consider the circumstances under which the act was done for an act done under one set of circumstances may constitute a serious offense while under other circumstances it might be no offense at all or at most a very venial ouc This was evidently the view of the Legislature But as anyone can see there are circumstances under which a bet may be recorded without any very serious harm coming from It and so the Legis ¬ lature evidently thought and therefore they provided that the acts which were forbidden by Section 351 should be punished as therein prcscrilwd except when another penalty was provided by law This of course they had the right to do because the par ¬ ticular penalty which should be provided for any act must be clearly within the discretion of the Legislature LegislatureOn On appeal this decision was affirmed affirmedThe The Constitution says that bookmaklng or any other kind of gambling shall not be authorized or allowed within this Stale anil that the Legislature shall pass appropriate laws to prevent such offenses But the Constitution does not say that bookmaking or any other kind of gambling shall be made a crime and the Court of Appeals said of the act of 1S95 Whatever its indirect effect may be it cer ¬ tainly cannot be said that this was a statute which in terms authorized any of the forbidden acts Here we have it decided by the court of last resort that the existing law docs not authorize or permit bookmaking or betting on a race track trackThe The Constitution does not give Governor Hughes of this state the right to determine what laws arc appropriate under this section Appropriate is that which is suitable for the purpose and cir ¬ cumstances The determination of what laws are appropriate is vested in the Legislature alone and on this question the opinion of the Court of Appeals rendered by Judge Martin in this same Sturgis case is conclusive The Constitution in express terms reposed in the Legislature the power and imposed upon it the duty of passing such laws thus clothing it with the right to consider and determine for itself what laws were appropriate and should be passed to carry into effect That the law under consideration is in a sense appropriate to accomplish the puriwse of that provision must be admitted Whethcr it will prove less effective to accomplish that result than some other we are not called upon to determine It being in a degree appropriate we are aware of no principle of constitutional law which would authorize this court to condemn it as invalid or unconstitutional because In our opinion some more effective or more appropriate law might have been devised and en ¬ acted So long as this legislation was in any de ¬ gree appropriate io carry into effect the purpose of the Constitution it docs not fall under its condem ¬ nation That this provision of the Constitution was not intended to be selfexecuting is manifest as it expressly delegates to the Legislature the authority and requires it to enact such laws as it shall deem appropriate to carry it into execution executionIn In view of this decision of a great court our court of last resort that the existing law is ap ¬ propriate and that the Legislature has complied with the constitutional mandate how idle is the argument that the Constitution has not been obeyed One great department of government the Legisla ¬ ture has determined that an act is appropriate Another great department the judiciary has de ¬ termined that the Legislature was right in its action and in Its judgment Is it for the Executive to compel a rescission or repeal of the existing law solely by the argument that the Constitution has not been complied with withThe The basic principle of all constitutional govern ¬ ment is the independence one of another of the three coordinate branches
