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Subject Area: Law
Topic: The American Revolution and Constitution

§ 121.: Prohibition of trade in vice—Social evil, gambling, horse-racing.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


§ 121.

Prohibition of trade in vice—Social evil, gambling, horse-racing.—

It has been maintained in a previous section,2 that the police power does not extend to the punishment of vice. No law can make vice a crime, unless it becomes by its consequence a trespass upon the rights of the public. But while this may be true, no man can claim the right to make a trade of vice. A business that panders to vice may and should be strenuously prohibited, if possible. Fornication is a most grievous and common vice. Under this view of the limitations of police power, it could not be made a punishable offense, although it would be commendable as well as permissible to prohibit the keeping of houses of ill-fame.1 Gambling of every kind is an evil, a vice, which cannot consistently be punished, except indirectly by a refusal of the courts to enforce gambling contracts;2 but the State may prohibit and punish the keeping of gambling houses, and lotteries, and the sale of lottery tickets.3 And it is the same in respect to every vice. Vice, as vice, is not subject to police regulation; but a business may always be prohibited, whose object is to furnish means for the indulgence of a vicious propensity or desire.

I have left unchanged the foregoing text of this section which appeared in the first edition on page 291 as a part of section 102, notwithstanding the fact that this distinction between crime and vice as the proper subjects of police regulation has not been indorsed by the courts, as I have fully set it forth in a preceding section of the present edition.1 And I do so because the adverse decisions have not convinced me that the distinction is unsound. The position of the text has been fully sustained, however, as to the right of the State to prohibit all trades which pander to vice. And I have added a number of cases, which illustrate the power of the legislature to prohibit the vicious trades, which has been mentioned above. Some new phases of such prohibitions deserve special mention. For example, in the effort to stamp out the vice of gambling, not only have book-making and pool-selling been included within the list of prohibited occupations;2 but even horse-racing has been prohibited, except as allowed by the act; and the prohibition has been sustained as a constitutional exercise of the police power.3 And in many of the States the keeping of what are known as bucket-shops, wherein people of small means are provided with the means of engaging in option dealing, has been declared to be a criminal misdemeanor, without any successful attack upon the constitutionality of the statute.4

[2]See ante, § 60.

[1]State v. Williams, 11 S. C. 288; Childers v. Mayor, 3 Sneed, 356; Stone v. State, 22 Tex. App. 185; State v. Schaffer, 74 Iowa, 704; Heizinger v. State, 70 Md. 278; People v. Hanrahan, 75 Mich. 611; Com. v. Shea, 150 Mass. 314; Freman v. State, 119 Ind. 501; People v. Slater, 119 Cal. 620 (one woman is sufficient to make it a house of ill-fame). Keeping a disorderly house is generally held to be unlawful. In State v. Haberle, 72 Iowa, 138, it was held not unconstitutional for a statute to allow conviction on the proof of general reputation of the place. In Thatcher v. State, 48 Ark. 60, it was held that noise and boisterous conduct are not essential to the offense. Beard v. State, 71 Md. 275 (do.). In Huffman v. State, 23 Tex. App. 491; Sara v. State, 22 Tex. App. 639, it was held that general reputation is sufficient as to the character of house; but the defendant must be proved to be keeper by direct evidence.

[2]See ante, § 116.

[3]Freleigh v. State, 8 Mo. 606; State v. Sterling, Ib. 797; Terry v. Olcott, 4 Conn. 442; Ex parte Blanchard, 9 Nev. 101; Kohn v. Koehler, 21 Hun, 466; Hart v. People, 26 Hun, 396. See State v. Phalen, 3 Harr. 441, in which it is held that an act, prohibiting lotteries, cannot act retrospectively, so as to affect a lottery which is carried on under special grant of the legislature. In Nevada, a law was sustained, as not being local legislation, which prohibited gambling in only one county, the act prohibiting gambling in any county, in which more than 1,500 votes had been cast at the preceding general election. State ex rel. Patterson v. Donovan, 20 Nev. 75; 15 P. 783. See, generally, Downey v. State, 115 Ala. 108; Bibb. v. State, 84 Ala. 13; Copeland v. State, 36 Tex. Cr. Rep. 576; 38 S. W. 189; Haring v. State, 51 N. J. L. 386; People v. Fallon, 152 N. Y. 12; People v. Van DeCarr, 150 N. Y. 439; Vowells v. Commonwealth, 84 Ky. 52; Newman v. People, 23 Colo. 300; Wooten v. State, 23 Fla. 335; Dunbar v. State, 34 Tex. Cr. R. 596; Emmons v. State, 34 Tex. Cr. R. 98, 118; Humphreys v. State, 34 Tex. Cr. R. 434; McBride v. State, 39 Fla. 442; State v. Gilmore, 98 Mo. 206; Commonwealth v. Blankinship, 165 Mass. 40 (in this case, it was a gambling club).

[1]§ 60.

[2]State v. Burgdoerfer, 107 Mo. 1; State v. Thomas, 138 Mo. 95; Irving v. Britton, 28 N. Y. S. 529.

[3]State v. Roby, 142 Ind. 168.

[4]Soby v. People, 134 Ill. 66; Caldwell v. People, 67 Ill. App. 367; Fortenbury v. State, 47 Ark. 188.