For the prosecutors, Nathan L. Goodman.
For the defendant, Charles A. Rooney and James A. Hamill.
Before Justices Case, Bodine and Donges.
The opinion of the court was delivered by
BODINE, J. The prosecutors seek to review a summary conviction under the Disorderly Persons act, as amended. Pamph. L. 1933, p. 216. The act, so far as pertinent, provides as follows: "Any person who shall possess, give, barter, sell, or otherwise dispose of, or order to give, barter, sell, or otherwise dispose of any ticket, tickets, slip, paper or other memoranda
or any share or interest in any ticket, tickets, slip or memoranda in any number game or who shall hold, conduct or have any interest in any number game or who shall receive any money, goods or thing in action in connection with any number game shall be deemed and adjudged to be a disorderly person."
If we could entertain any doubt as to the meaning of the term "number game," a subsequent declaration by the legislature is illuminating if not dispositive. It is as follows: "Number game, as set forth in this act, is defined as any betting on any number or numbers, or arrangement of numbers, on or according to any plan or method whatsoever." Act of August 30th, 1933.
In 1897, the constitution of the state was amended by the following provisions, article 4, section 7, subdivision 2 (1 Comp. Stat., p. lxix): "No lottery shall be authorized by the legislature or otherwise in this state, and no ticket in any lottery shall be bought or sold within this state, nor shall pool-selling, bookmaking or gambling of any kind be authorized or allowed within this state, nor shall any gambling device, practice or game of chance now prohibited by law be legalized, or the remedy, penalty or punishment now provided therefor be in anyway diminished." The purpose of the amendment was to forever bar gambling from the state.
Sections 57, 58 and 59 of the Crimes act (Pamph. L. 1898, p. 810; 2 Comp. Stat., p. 1764), treat as high misdemeanors offenses connected with a lottery or lottery policy game. Like provisions of the law were in existence when the constitutional amendment was adopted. Gaming, betting generally, horse racing for money and so on are mere misdemeanors. See sections 60 to 64, inclusive, of the Crimes act. Bookmaking or pool-selling is more severely dealt with by section 65, while other provisions of the act relate to slot machines. Obviously, gambling may be carried on in as many different ways as human ingenuity can devise. The common law of England upheld wagering contracts. Betting and the playing of games of chance were not always prohibited in colonial times. In fact, lotteries were used as a means of raising funds for the College of New Jersey, now Princeton University, and tickets
were freely offered for sale and advertised in the public press. In fact, after the Declaration of Independence an act was passed to prevent the counterfeiting or forging of the lottery tickets of the United States. Pamph. L. 1777, p. 13. Anyone convicted thereunder was to be punished with death. Those participating in the United States lottery were, however, not subject to the penalties provided in a Colonial act of 1774 designed to suppress lotteries. The trustees of the Presbyterian churches at Elizabethtown, New Brunswick, Princeton, Newton, Bridgeton and Middletown after the Revolution were authorized to conduct lotteries in order to raise money to build edifices. The Episcopal church was not slow in securing like privileges. The school man saw his opportunity and by this means the inhabitants of Newark furnished their academy. By 1797, the lottery scheme must have been too much of a good thing because the legislature ...