Marvin v. Trout/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 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, 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, 196 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 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 § 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 section 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 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, 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 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 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. chap. 9, m. p. 161; 2 Bl. Com. chap. 29, m. p. 437; 2 Hawk. P. C. 8th ed. 368; 1 Selwyn, 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 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. at L. 506, chap. 13, U.S.C.omp. Stat. 1901, p. 3604), and cases arising under 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. 443, 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 equally without merit. Maxwell v. Dow, 176 U.S. 581, 44 L. ed. 597, 20 Sup.Ct.Rep. 448, 494.

Third. The contention that the statute violates the 1st section of the 14th 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 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, 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 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 1st section of the 14th 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, 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 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.

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. 

Notes