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
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; Henkel v. Cincinnati, 177 U.S. 170; Fullerton v. Texas, 196 U.S. 192. 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 section 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
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.
Assuming, however, that by reference to the first section of the Fourteenth 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
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. 506, and cases arising under its provisions are to be found in 10 Wheat. 246, United States v. Morris, and 6 Pet. 404, McLane v. United States.
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.
Third. The contention that the statute violates the first section of the Fourteenth 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 Gassman. 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
The judgments of the Supreme Court of Ohio are