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turbance of the public peace by three or more persons assembled together of their own authority, mutually assisting each other against all who oppose them, and engaged in executing some design in a violent or turbulent manner, to the terror and alarm of bystanders or the neighborhood.” People v. Judson (1849) 11 Daly, 1, 82, General Sessions.
"Courts will not restrain and prohibit a citizen from petitioning the legislature, or any public body, or asking action by either in his behalf, whether with or without the authority of law, unless to do so would be a violation of some covenant or agreement with others.” People v. Canal Board (1874) 55 N. Y. 390.
Lotteries. A sketch of the history of lotteries, including the addition in 1894 of the provision relating to pool-selling, will be found in the third volume.
The word "lottery” indicates "a scheme for the distribution of prizes for the obtaining of money or goods by chance.” People v. Noelke (1883) 94 N. Y. 137, 40 Am. Rep. 128, in which it was also held that the New York lottery statutes did not violate the interstate commerce provision of the Federal Constitution.
In Charles v. People (1848) 1 N. Y. 180, the publication of a foreign lottery was held to be a criminal offense under our statutes.
The distribution of pictures by lot among members of the American Art Union, under specified conditions, was held to be a lottery in Almshouse v. American Art-Union (1852) 7 N. Y. 228, and to subject the Union to the penalty prescribed by 1 Rev, Stat. 664, $ 22. “The intention of the scheme is to sell them (the pictures] for more than they can be sold for at private sale, and this was to be brought about by an appeal to the universal passion for playing at games of chance. The indulgence of this passion was precisely what the Constitution intended to repress and prohibit.” The scheme "is a distribution by lot of a small number of prizes among a great number of persons."
A gift concert was held to be a lottery, where the holder of a ticket was entitled to admission and to whatever sum might be awarded to the number of his ticket. Negley v. Devlin (1872) 12 Abb. Pr. N. S. 210; Rolfe v. Delmar (1868) 7 Robt. 80.
A scheme for the sale of packages of candy, some of which conlained tickets for silverware, was held to be a lottery in Hull v. Ruggles (1874) 56 N. Y. 424.
**Playing policy,” so-called, was declared to be a lottery in Wilkinson v. Gill (1878) 74 N. Y. 63, 30 Am. Rep. 264. Where bonds were issued by the Austrian government according
VOL. IV. Const. Hist.–10.
to a plan by which the holder purchased the bonds either at their face or their market value, with the further provision that, on a specified contingency, the holder, besides receiving the principal and interest on the bond, might, by lot or chance, receive an additional sum, to be determined according to a prescribed scheme, it was held that the bonds were not lottery tickets. “In loaning money upon these bonds the holder thereof ran no risk of loss, if the principal and interest were paid, and he took the chance which might arise in case it should be determined by lot that his bond was entitled to a larger sum than the principal, interest, and premium, which he was sure to get in any event." This was not a lottery. Kohn v. Koehler (1884) 96 N. Y. 362, 48 Am. Rep. 628.
Pool-selling.-In Reilly v. Gray (1894) 77 Hun, 402, 28 N. Y. Supp. 811, the court, in sustaining the act of 1887, chap. 479, relating to pool-selling, cited Com. v. Ferry (1888) 146 Mass. 203, 15 N. E. 484, in which a pool “is defined to be a combination of stakes, the money derived from which is to go to the winner;" and in which it is said that "registering bets and selling pools are not distinct kinds of unlawful business, but different parts of one transaction, representing different stages of it.” The principal case explains the practice relating to the auction pool, French pool, and book-making. Betting on horse races was not deemed a lottery at the time of the adoption of the Constitution, and it was therefore not intended to be included in the constitutional prohibition. Pool-selling was said to be a development of betting,—a combination in the same line.
The New York common pleas reached a different conclusion concerning the act of 1887, and in Irving v. Britton (1894) 8 Misc. 201, 28 N. Y. Supp. 529, held the act unconstitutional so far as it purported to authorize pool-selling at a horse race; that a pool on a horse race is a lottery, and that book-making is illegal. The opinion of Justice McLennan at special term, in the Reilly Case, was cited as authority for the decision, but it will be observed that the order of the special term had already been reversed by the general term, as above stated. The decision by the general term in the Reilly Case was rendered in April, 1894; the constitutional convention held that year added pool-selling and book-making to the prohibition against lotteries.
Following the adoption of the new Constitution, the legislature of 1895 passed chap. 570, providing for a state racing commission, and authorizing associations for the improvement of the breed of horses. This statute was considered by the New York common pleas at special term in Dudley v. Flushing Jockey Club (1895) 14 Misc. 58,
36 N. Y. Supp. 128, which held the statute unconstitutional so far as it authorizes and allows a recovery for "sweepstakes” won upon a horse race.
The same statute was considered without passing upon its constitutionality in People ex rel. Weaver v. Van De Carr (1896) 150 N. Y. 439, 44 N. E. 1040, construing $ 351 of the Penal Code as amended in 1895.
The racing act of 1895 was before the court of appeals in People ex rel. Sturgis v. Fallon (1897) 152 N. Y. I, 37 L. R. A. 419, 46 N. E. 302, where $ 17, which fixes the penalty for recording bets or wagers: on horse races, was declared to be constitutional. It reduced the penalty for the commission of the prohibited acts, but that subject was said to be within the exclusive jurisdiction of the legislature.
The same statute was also sustained in People ex rel. Lawrence v. Fallon (1897) 152 N. Y. 12, 37 L. R. A. 227, 57 Am. St. Rep. 492, 46 N. E. 296, and it was there held that the act is a special law, and within the exception specified in 8 352 of the Penal Code. The legislature had power to enact 88 344a and 3446 of the Penal Code relating to certain forms of gambling. People v. Adams (1903) 176 N. Y. 351, 63 L. R. A. 406, 98 Am. St. Rep. 675, 68 N. E. 636, affirmed (1904) 192 U. S. 585, 48 L. ed. 575, 24 Sup. Ct. Rep. 372
$ 10. (Sovereignty in real property; escheats. ]—The people of this state, in their right of sovereignty, are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of the state; and all lands the title to which shall fail, from a defect of heirs, shall revert, or escheat, to the people.
(Const. 1846, art. 1, $ 11.)
In the chapter on the Constitution of 1846 I have given a sketch of various discussions relating to the title to real property, resulting in the adoption of this and other sections intended to state certain general principles, and in some respects to modify the common law. The status of property and the ultimate title and authority concerning it which the people possess in their sovereign capacity were considered in People v. Trinity Church (1860) 22 N. Y. 44, where the court took occasion to say that this section does not "declare a mere
presumption of a present title which can be repelled by proving a grant from the state, but an absolute rule of political sovereignty, incapable of yielding to any circumstances whatever. The people ‘are deemed, not presumed, to possess the original and ultimate property, etc.; in other words, all private titles are held from them as the political sovereignty, as in England all lands are held under the Crown in the same sense. When, by the Revolution, the colony of New York became separated from the Crown of Great Britain, and a republican government was formed, the people succeeded the King in the ownership of all lands within the state which had not already been granted away, and they became from thenceforth the source of all private titles. To the same source, also, titles return by reverter or escheat when the person last seised dies, without heirs capable of inheriting. The Constitution is simply declaratory of these principles as the fixed and unalterable rules of public law.
The ownership or right of property therein mentioned is fixed and unchangeable. It can never pass away from the people by grant or otherwise, because it is the original and ultimate ownership of the political sovereign which is referred to, and not the title or estate which a private person can acquire to himself and his heirs, to be holden of the state, and subject to escheat. By whatever name we may call the highest estate of an individual known to our laws, there is a theoretical title in the state of a still higher nature, to which the right of possession and enjoyment becomes annexed on the failure of the inheritance. This is the original and ultimate property' spoken of in the Constitution."
In Jackson ex dem. Winthrop v. Ingraham (1809) 4 Johns. 163, the supreme court said it could not "take notice of any title to land not derived from our own government, and verified by a patent under the great seal of the state or the province of New York. Whether claimants to lands within this state, founded on French grants, might not have had an equitable claim on the government under the capitulation of Montreal in 1760, or the treaty of 1763, is a question with which this court has no concern. Such a claim might have been presented and urged to the government, but it does not afford that evidence of legal title which can be recognized by this court. We can look no further than to the titles derived under our own grants. This has been the uniform sense of our courts from the first establishment of the English government in the colony of New York.” It appears that by an order of the privy council in England on the 12th of August, 1768, no Canadian claim to lands south of the 45th degree of north latitude was to operate, un
less such claim was consummated and confirmed by a grant under the seal of New York. The colonial assembly declined to recognize these claims, and in 1773 declared them to be "extravagant and destitute of all foundation."
The supreme court in O'Meara v. Allegany (1874) 3 Thomp. & C. 235, said that land in an Indian reservation was embraced in the right of sovereignty as defined by this section; that the state might therefore provide for the construction of a bridge on such reservation, and that the statute authorizing such a bridge was, in effect, an assertion of the right of eminent domain. The decision was reversed in the court of appeals (1874) 59 N. Y. 316, on the construction of the statute, and without considering the Indian titles.
Naturalization under the Federal statutes has no retroactive effect. Heney v. Brooklyn Benev. Soc. (1868) 39 N. Y. 333.
Johnston v. Spicer (1887) 107 N. Y. 185, 198, 13 N. E. 753, contains a sketch of the history of legislation relating to escheats.
The courts have had frequent occasion to consider subjects relating to escheats and the rights of aliens, but the cases for the most part involve questions of procedure or evidence and determine the status of persons or property under particular circumstances without special reference to the Constitution. These decisions may be found in the digests, but are not of special interest here.
§ 11. (Feudal tenures abolished ]— All feudal tenures of every description, with all their incidents, are declared to be abolished, saving, however, all rents and services Certain which at any time heretofore have been lawfully created or reserved.
(Const. 1846, art. 1, $ 12.]
The abolition of feudal tenures, first by statute and then by the Constitution, has been considered in the chapter on the Convention of 1846, in connection with the subject of agricultural leases and other topics relating to real property.
This subject is considered in Tyler v. Heidorn (1866) 46 Barb. 439.
§ 12. (Absolute ownership of estates.]— All lands within this state are declared to be allodial, so that, sub