THE LICENSING ACT.

Star (Christchurch), Issue 8314, 12 May 1905, Page 3

THE LICENSING ACT.

"GAMBLING" IN HOTELS. THE INWARDNESS OF A CUSTOM. APPEAL TO THE SUPREME COURT. At the Supreme Court this morning, his Honor Mr Justice Cooper heard the appeal case of Fuller v. Fouhy, an appeal from the decision of the Stipendiary Magistrate, Mr Haselden, in a case brought before him under the L'censing Act of 1904. Mr Russell, with him' Mr Solomon, appeared for the appellant, and Mr Stringer for the respondent, Sergeant Fouhy. Mr Russell said that the Magistrate had convicted Fuller, licensee of the Lyttelton Hotel, under section 44 of the Licensing Act, 1904, which provided that every licensee who permitted or connived at gambling, or the playing or an unlawful game, on his premises should be liable to a penalty not exceeding £10. Counsel appeared really on behalf of .the licensed victuallers of the colony, for the question at issue was one affecting them all, and they desired a rule on it. For fifty years it had been the custom in hotels for customers to play some lawful game of cards to decide who should pay for refreshments, but the Magistrate had held this to be gambling under ,the section. The licensed victuallers desired only to ascertain the strict definition of the law and to abide by it. The facts ad. nutted for the purpose of obtaining a judgment in the lower court were that the defendant was the licensee of the Lyttelton Hotel, that on December 5 four men played a game of euchre in the hotel, that the losers were to pay for drinks, and that the defendant was aware of the playing. Thqse were «"6 facts admitted for the purpose of a decision, and he submitted that the alleged offence was not within the words or the spirit of the Act. Section 44 of the Act of 1904 was pretty well copied from section 17 of the English Act of 1872, which provided for penalising any licensee " who suffers any gaming or unlawful game to be carried on in his house." The New Zealand Act had gone a little further and the word "gaming" became "gam bling." He submitted that where in the re-enactment of a law changes of wording were made they were made deliberately and advisedly and for some purpose. If section 44 had been worded as the English Act the English decisions would apply, and there were undoubted authorities to show that playing a game of cards on the understanding that the loser was to pay for something was gaming. He maintained that these authorities would not apply where the word "gambling" was substituted for "gaming." His Honor : May not " gambling " have a more extended meaning? Mr Russell replied that gaming was any transaction for a stake, but gambling meant doing something where the results involved were of great magnitude. His Honor: Then whist for penny points would be gaming and for pound points gambling P Mr Russell submitted that the Court was not dealing with matters outside the Act, but merely with the Aot as worded, an Act held to have made an offence of t a custom which had been good for fifty years. His Honor remarked that the Act of 1904 went further than that of 1881, for it provided that there might be gambling at a lawful game. Mr Russell submitted that the word " gambling " was probably used designedly so that a game- of cards might not be an offence unless it amounted to a gambling transaction. According to Murray's New English Dictionary "gambling" was a term of reproach. The instances given showed that the term " gambler " was properly used to denote a man. who indulged in such transactions as. cut intorhis resources and,; eVen. into his fortune. /Miirray .de-. ? fined "gamble " as " to.^ play games of chance, especially for high stakes." His Honor: Then is bridge, with ordinary, stakes, not gambling? Mr Russell: Suppose two men played chess in a licensed house, the loser to pay Is for the use of the board, would that be gambling? His Honor: No. Chess is a game of skill purely. Mi* Russell: Well, your Honor, I submit that even a game of cards is a game of skill. His Honor : It is a game of chance. Of course, skill often comes in, as with the "Heathen Chinee," whose skill was presumably keeping the right bower up his sleeve. Mi> Russell, continuing, said that the best writers used the word "gambler " as a term of reproach, and spoke of "gambling" as playing for large amounts. His Honor said that a man who played whist occasionally for penny points could hardly be called a gamb- i ler in the colloquial sense — but was he not gambling? Mr Russell said that he took it that a man who could not be called a gambler was not gambling. . " Therefore," replied his Honor, " a man who drinks without getting drunk is not drinking." After quoting uses of the word "gambling" by well-known writers, Mr Russell went- on to say that the true meaning of the Act of 1904 was not to penalise an insignificant custom half a century old, but to prevent play for high stakes. The use of the word "gambling" as distinct from "gaming" made it dear that th© Courfwaß to inquire into the nature of any transaction before it. The Court, he submitted, certainly had a right to inquire into the details of a transaction such a* that in question.' If two person^ went to an hotel to play cards for high stakes, and merely for the sake of passing money to and fro, they were gambling; but if they played really to eniov the game and the stake was so infinitesimal that it did not matter who won, they were not gaming. The Court must consider the distinction. „ , His Honor: Where would you draw the line? „ > " .'• i Mr Russell : To play bridge for high stakes would be gambling. His Honor: Bridge may be an unlawful game, but euchre has been held to be a. lawful game. What would you StringerfYdur Honor is showing a wide familiarity with games of Ch Mr C Russell: Poker with would clearly be gambling. In the case of this game of euchre object was not the passing of money. The question of chance does not come in. His Honor: It seems to me that euchre depends on the cards you hold as well aion skill. I think Bill Nye" found that out. , Ttfr Rusaell said that, there must be an element of chance m every gameIn pool, for instance, the PPrW r depended somewhat on the placing of the balls by another person. His Honor said that in pool Jhere was a known quantity, but m euchre, there was an unknown q»f nt «£ . fg pool a "Roberts" could make the balls go pretty well where he liKea. Mr Russell maintained that if the passing of money constituted gamming, any game of skill must become gambling, ifplayed for money. . , His Honor said that his <*P 6 ™ ne6 ?i euchre was that it depended a good deal on chance. Gambling was, perhaps, playing for money at a game or chance. „ . Mr Russell said that the term "gambling" could be applied on the Stock Exchange only to operations ; ot considerable magnitude. The English case of Dyson v. Mason seemed to es-

tablish t !;:>'• playing a game of skill for money w arning, but not gambling. His 13 said that that was so. Mr I? !1 asked whether two men would Sibling if they attempted to eolv arithmetical problem, on conditio .at the loser paid for drinks. "Suppose," said his Honor, " it was a case of ' a shilling in, and the winner i shouts,' would not that be. gambling?" Mr Solomon expressed the opinion that it would be both gambling and gaming. Mr Russell said, in conclusion, that there could be no gambling unless the stake or money passed from one person to another, and he submitted that " gambling " involved recklessness, and the idea of serious loss to one side. His 1 Honor said that a man might play for small stakes and not be " a gambler," in the accepted sense of the term, but it did not follow that he would not be gambling. Mr Stringer submitted that the test suggested by Mr Russell was unworkable and impracticable, and never intended by the Legislature. He had contended that the only meaning of the Act was that a person should noij go into a publichouse and game for stakes greater than his means. He had quoted . literary uses of the word "gambling" to show that it meant playing for excessive stakes. His Honor: That is not necessarily sound law. Mr Stringer said that the amount of the stake and its proportion to a man's means could only be ascertained by exhaustive inquiry, such as the Legislature had certainly never intended. Ine Magistrate had put the application of the case very fairly when ac asked whether if playing for drinks worth two or three shillings was not gambling, was playing for bottles of champagne gambling, and, if not, was it gambling to play for cases of champagne? The real question was one of the possibility of continual playing. To play one game of cards ,for drinks might not be gambling, but 'what if a man went on playing all day? It might mean ruin to him or it might mean nothing, but that could not affect the point. He thought it probable that the English Act was not before the draughtsman of the New Zealand Act. It was not a matter of the substitution of "gambling" for " gaming," bui the New Zealand Act contained an altogether independent section. If the language of a previous Act was departed from deliberately in a new Act change of intention might reasonably be argued, but the argument must be accepted cautiously. The principle had been enunciated recently by Mr Justice Denniston in a case under the Licensing Acts. He contended that the intention of the Legislature was to prevent the playing "of games for money or something worth money in licensed houses. It was to regulate the conduct of the licensed house, and to prevent excessive drinking or quarrelling arising" from games. In the case quoted of Dyson v. Mason the Lord Chief Justices had held these to be very good reasons for not allowing games to be played for money in licensed houses. The object of the Legislature was most probably that he bad mentioned. The very faot that the practice of playing had prevailed might be the reason of the Legislature for stopping it. In the English case of Danford v. Taylor it was held by the Lord Chief Justice that there "was no question of the amount of the stakes nor the position of the parties. Playing oards for drinks might encourage drinking and one game might lead to twenty. The terms " gamine" and "gambling" were practically synonymous and the distinctions drawn by Mr Russell were purely literary and rhetorical. Webster's definition of " gamble " was "to play or game for money or other stake." > Mr Solomon replied, recapitulating the chief points raised by Mr Russell, and contending that if the position was., -the same as in England the wording of the Act would be the same as that of -the English Act. His Honor said that he would reserve his decision.