O'Keefe v. Weber

[Filed Oct. 28, 1886, on rehearing.] Lord, C. J., Concurring.—The opinion of the court, as delivered by the chief justice, in effect holds and decides that a statute may include both civil and penal provisions, and that section 3 of the act in question is not penal, but remedial. Nor do we understand that the correctness of the law as applied is impugned or denied. It is only claimed that one point [58] suggested at the former hearing, and which seems to be regarded as of vital importance, has been overlooked. This is, that the title of the act does not indicate the subject matter of the statute as contained in the third section. The act is entitled, “ An act to prevent and punish gambling ” ; and section 3 of the act provides that the loser shall have a cause of action against the dealer or proprietor, etc., for the recovery of twice the amount of money, or double the value of the thing lost. The argument is, that the enforcement of this section by civil action cannot have the effect to prevent gambling, any more than the enforcement of any other civil action will have a preventive effect, in x-espect to the matter or cause out of which it arose, as this result can only be accomplished through the agency of penal clauses with which this statute is provided, and consequently the subject matter of the section is not within the title of the act. Evidently, the legislature thought otherwise, for their intention seems manifest. What could be the object of giving to a party injured a right -of action against him by whom it was committed, where it did not before exist, and allowing him to recover twice the amount, or double the value, in compensation for such injux-y, unless it be to max’k with legislative condemnation the creation of such liabilities, and to warn and deter others from incurring them ? Is not the object in such case mox-e manifest than in actions for bx-each of promise of marriage, where the jury are authorized by law to give exemplary or punitive damages, to warn and deter others from the violation of their promise ? It seems to us there can be but one answer as to the object of such legislation—that it is designed to be preventive, and that it is such in effect. The section, therefore, is germane to the title, and the title of the act fairly attracts attention to the subject xnatter of the statute, including the third section. A court will never resort to a forced construction to declare a statute void on the ground that .the subject is not expressed in the title. There was no error.