Not Blind but Naive

Five years ago Paul Bonynge, New York lawyer, first cousin of onetime Congressman Robert William Bonynge from Colorado, ran for the post of county judge in Long Island's suburban Nassau County. Suave, patrician Paul Bonynge candidly told his constituents even in those Prohibition days that now and then, when he wanted a drink, he took it. He was beaten. Campaigning again on a platform "never to put a man in jail for things I do myself," he was elected in 1932 a justice of New York's Supreme Court (equivalent to a superior court of original jurisdiction). On the bench he made a record as a notable debunker of legal folderol.

Last week before Justice Bonynge came the case of Percy C. Reed, owner of the Nassau Kennel Club, operator of dog races at the Mineola fairgrounds. Year ago Mr. Reed was accused of gambling, but the case was dismissed for want of evidence. Mr. Reed now appealed to Justice Bonynge for a declaratory judgment approving his business. Justice Bonynge wrote a decision which made brisk reading. Excerpts: "The plaintiff operates under an ingeniously devised scheme, deliberately contrived to avoid the pitfalls of the Penal Law. In a word, he sells purchase options upon each dog in a race and, if these are not exercised, buys back such as he may elect at prices determined by him. Strange as it may seem, a considerable number of these options are actually exercised and result in authentic changes of ownership of dogs. The district attorney urges that these purchase options are a mere subterfuge and that the man who buys one of them for $2 merely intends, in truth and in fact, to lay a bet of that amount. Very possibly this is true. . . .

"Here the uncontradicted evidence shows that the plaintiff is actuated by the bona fide intent to give each and every patron a valid option to buy a particular dog. If such patrons choose to flaunt [sic] his good intentions and buy options to line their pockets with unholy gains they cannot thereby make a criminal out of him. Were the rule otherwise, every cotton and commodity broker or dealer in the land would be in jail before nightfall. Does anyone suppose that the delicatessen dealer who buys an option on 500 bales of cotton ever intends to take delivery of it or that the salesgirl who acquires a future in 1,000 bushels of wheat will ultimately bake bread or make pancakes with the resultant flour?* Let the vendor of an option establish that he is pure in heart and the law takes no account of the base motives of those who may deal with him. . . .

". . . [Is not] a certain amount of naivete ... an essential adjunct to judicial office? Does not the Supreme Court grind out thousands of divorces annually upon the stereotyped sin of the same big blonde attired in the same black silk pajamas? Is not access to the chamber of love quite uniformly obtained by announcing that it is a maid bringing towels or a messenger boy with an urgent telegram? . . .

"P. T. Barnum recorded the fact that the American people delight in being humbugged, and such is still the national mood. Nowhere is this trait more clearly shown than in the field of gambling. A church fair or bazaar would scarcely be complete without a bevy of winsome damsels selling chances on bed quilts, radios, electric irons and a host of other things. If the proceeds are to be devoted to the ladies' sewing circle or the dominie's vacation, no sin is perceived and the local prosecutor, whoever or wherever he may be. stays his hand. But if a couple of dusky youths are apprehended rolling bones to a state of moderate warmth, blind Justice perceives the infamy of the performance and the law takes its course.

"Sweepstakes and lotteries are unspeakably vile and yet through them we have contributed so many millions to the Irish hospitals that it is rumored patriotic Irishmen cheerfully volunteer to have their tonsils and appendixes removed just to keep the hospital beds occupied and the nurses employed. For a generation or more betting at horse races was unlawful. After this prolonged burst of morality the Legislature suddenly discovered the need of 'improving the breed of horses' . . . restored race track betting by removing the criminal penalties. But let no one suspect that our best citizens repair to Belmont Park and other nearby tracks for the purpose of betting or gambling. Perish the thought, for their minds rest on higher things. Improving the breed of horses is their aim, and their conversation, aside from formal greetings, deals solely with sires and dams, foals and fillies, blood lines, consanguinity and inherited characteristics. These things a judge must believe, even at the risk of being chided as naive, because they are contemporary America. Judgment for plaintiff, without costs."

*In St. Paul last week, the Minnesota Supreme Court ruled that a speculating farmer did not have to pay a Minneapolis broker the $1,637.76 he lost in grain-trading transactions. Because the farmer had clearly indicated he would not take delivery on the grain, ruled the Court, the debt was merely an uncollectable one for "gambling."

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