view raw text
N r t. to ■ ] ii j ■ , ,. I, i 1 i a „ v | j I I ■ v a J i t I I " J ] j I . I I ! , i , , , j -. . i 1 1 | , [ . , . i I • MAKES PLEA FOR PERSONAL LIBERTY. New York Assemblyman Protests Against Enactment of Perkins Anti-Betting Bills. New York. April 7.— Joseph S. Auerbach. repn -senting the jockey Club. apiH-are.l before the Senate Code* Committee at Albany yesterday in opposition the Agn.w Perkins bills aimed against oral betting. He declared that the Hart-Agnew law was •ot worth the paper it was written on. and urged the committee to wait until the courts had liualiy determined as i its constitutionality before taking further action inimical to racing, lie asked for a further hearing in order that brooders of horse, from various sections of the country might express tlnMr impaallblB SO the bill. The committte has taken the reiiu.-st under ad isometit. When the Perkins anti-betting hills were .1. -bated before the lower brancu of the legislature earlier in tin- week a strong argument was made against them by Mitchell E. Friend, assemblyman from th-tiiirty-Brst district, which is located in New York City. Mr. Friend warm d his colleagues that the action contemplated was without precedent and would be the greatest limitation ever placed upon the liberty of person or property, speech or press. by commonwealth or municipality. "In otlnr words." he said, "we are aksst to padlock the mouths of the people, to g.-.g them, ill order to pn -vent the expression of se.itiment or judgment, unaccompanied by as overt act in a matter which may interest them. Ir is my psraeee," he continued, "in argument here before you. to attack the pr-. Based amendment to the Hart -Anew law upon three grounds, viz.: Its constitutionality, the futility of its enforcemcnl and the immateriality of its object. "The object of government is to Iiuikksx- uikiii its Bseasbera that degree of restraint upon human action which is seersaary to the conservation an.L enjoy inent of the rights and privileges of others. Such restraint as will prevent the iulliction of injury anon others in the enjoyment of their rights. •In the furtherance of sudi an object of govern incut there was enacti-d into the Constitution of this slate Article 1. Section N the following: " Kviry citizen may freely speak, write and pub lish his scitlinionts on all subjects, lieing responsible for the abuse of that right, and no law shall be passed to ii strain or abridge the liberty of aSeeeh or of the press.- "Such an act as is here sought to lie passed, which curtails the inherent rights of liN-rty of speech, can only be rendered constitutional if it is within tke scop,- ,,f the police Bower of a state. And it is under this idea that I am seeking to at-Isrk ir. "No act can lie called a crime unless it be I violation of aaSM right, and. with the exception of limes against the public, such as treason. LI tail a are nothing mote than the violation of private rights. Ihaasjk the prosecution therefor is brought iu the name of the Staple. "Ill determining the scope of jxiliee power we must realize tliat it is confined to the imposition of hind, ns and restrictions upon the rights of iiuiivhl umIs. iu order to prevent injury to the rights and privileges of others, and not for the banishment of sin or lee, or for the enforcement of the law of morality and religion. It cannot lie disputed that it is«the prevention of the violation of the rights of others which is the object sought within the conlines of Bailee power. Where can lie found an act held constitutional whereby the pure right of speech, tin-pure expression of sentiment and judgment, can be attacked upon the ground of its injuring others, when uncoupled with any overt act. such as tbe passing of money, the recording of a l»et. or the handing over of Ii voucher or receipt 1 •Shall the proper exercise of the |K liee power of the state overburden the rights of lihertv of speech, inherent iu man. and guaranteed and assured to Unpeople of ths free country by the provisions of the Fourteenth Amendment to the Constitution of these Inited States; I cannot but say. gentlemen, that to me this is an improper exercise of the nolice power. It is imposing ii|sin the people individually an undue restraint, and thai the achievement which mav he gained will be in the end a derogation of the rights un.kr which we have felt ourselves fnje agents to sjteak our minds and judgments. "Is it not clear that tbe enforcement of this provision is futile, and should not the futility of its enforcement lie a consideration against its enactment? It is ■ BBCBJCSkSM] principle in the law of eajsio that courts of njuity will never decree such acts to lie done over which thev cannot have supervision. Will it Ih- paasMe to enforce Ibis provision? Will it lie paeaaale to have such a BBSSher af officers of this state in and alxuit the stn-ets and homes, the nieeling places and the highways, to detect whether a man ways to another. I bet it rains. and the other saying. I liet it wont. or one BBSS. I will In-t I can beat yon to the corner. and other wagers as to |M-tty matters? Will not. I ask you. the enactment of so foolish ■ provision .all down Spaa osr heads not only the ridicule, but Hie distrust of our onstitucnts? "No law .an be enforced, particularly in a conn try governed by the popular will, which dm-s not receive tbe moral and active support of a huge ma jority of the people, and a law which violates reason and offends against the prevalent conceptions of right, justice and lihertv. will be dcorivod of the Bearer accessary to secure its enforcement. "The |«issage of such statutes will not only fail to attain the particular end in view, but tend. ...i the one hand, to create in those who are most likely to violate them a contempt for the whole lxidy of restrictive laws: and on the other hand, to inspire in those from whom the necessary moral supnorf is to lie expect, d and looked for. a fear ami distrust of l.-.-al restraint, a fear and distrust of the wisdom of the b irislalors. all of which is eery destructive of their legal value. "And yet it is sought by this act to make an oral wager, whether at miv tone or place, in ones house or Barter, on the golf links, on the tennis court or on the street, a misdemeanor. Anil, gentlemeu. I need not continue BSV further in laying the futilitv of such an enactment before you. but I l eg to uuole to you the following words spoken by Mr. Justice iavnor in another case befan him: " No law can lie enforced except by public opinion, and wise legislators never pass a law which lacks public opinion in its favor. Such laws are dead letters, except as they are stirred up from time t . time by tin- few among ns who delight in mod dling with the conduct of olhei-s or 1o lew black Stall. The law has never descended to thrusting its nose into the personal conduct of men and women to ilia | extent, and those who try to make out that it has enlv tend to create a disrespect for it." "Will this bill attain the object which it is sought to attain? Iu fact, is there a n.-eessary object to be achieved? "Since the pasaafBt af the Hart-Agnew bills. Is PM»s. horse racing has so diminished in importance that the rights and iati rests of the proprietors of ra.e eaaraea have a predated icanv times in raise, p. the end that th-v have ln-on but few horse races. Th- iioolrooin may lie considered a thing of the past. and tl faker forme; of wagering and betting have never BBseed worry to those who felt themselves the conservators of trie morals of the community. "The only object that the aeaaaSBBB] of this bill could possibly have in mind is to do awav with the harmless laying of wagers on the weather, or Hie out. le of a rwaSiSK race, or a football game, when such wag.r is made lietwoen friends. Shall the a-bievi ment of an object so harmless, so ineonsi.hr Bale, be sufficient to override the considerations of lOBllllStlnsalltT and futilitv of nceoiinilis.iuient C -|t I have set forth? Th - answer is self-evident: No. "Shall we. with the risk of i.assing a law which mav "lie unconstitutional, which is clearly ineffectual. road such a provision which will aci-omplish so siiirht and ini on-idevabh- an obj.- r. and thus call saaa oar own heads not onlv the ridicule of our eas- stitiients. but the distrust of all those who have Be- li.-v. d in the power of this honorable liody and its wise discretion and judgment I "And so. in an effort to preserve the respect and treat at ear constituents and af the Bessie of this state at lr-.rge. to avoid the Basaaee of some act futile iii its leeem.lshineiit — I might even sav in» Possible iu its a. •eoniiilishnionl — and to avoid tke enietiii.iit of any provision dcrogatorv of the rights of human nature, and those rfcekts assured to us bv the Fourteenth Amendment of the Constitution of these Patted States, pass an act such as this, so iii.-onsid.-rable. as immaterial?"
