Ex parte Farrant

• Decision Date: 24 May 1960
• Docket Number: Cr. 3781
• Citation: 5 Cal.Rptr. 171,181 Cal.App.2d 231
• Court: California Court of Appeals Court of Appeals
• Parties: In re James A. FARRANT on Habeas Corpus.

Page 171

5 Cal.Rptr. 171

181 Cal.App.2d 231

In re James A. FARRANT on Habeas Corpus.

Cr. 3781.

District Court of Appeal, First District, Division 1, California.

May 24, 1960.

Marcus & Bradbard, Pleasant Hill, for petitioner.

Stanley Mosk, Atty. Gen., Arlo E. Smith, Albert W. Harris, Jr., Deputy Attys. Gen., John A. Nejedly, Dist. Atty., Contra Costa County, R. H. Betzenderfer, Deputy Dist. Atty., Contra Costa County, Martinez, for respondent.

TOBRINER, Justice.

We deal here in a problem of state presumption of local regulatory power: does Penal Code Section 330, prohibiting certain specified gambling bames, so occupy the field of the regulation of gambling as to exclude a county ordinance forbidding all gambling? Petitioner also presents a subsidiary question as to the vague and indefinite character of the ordinance. As we shall point out, we have concluded that no statewide scheme of legislation as to gambling preempts the total field and that there thus remains to the county the right of local regulation. Furthermore, we do not find the ordinance too vague and uncertain for enforcement.

Petitioner brought this proceeding in habeas corpus upon the ground that the Sheriff of Contra Costa County unlawfully restrained him on the basis of a criminal complaint issued by the Municipal Court of the Concord Judicial District in that county. The complaint charged petitioner with the violation of Contra Costa Ordinance No. 142; in substance, it alleged that petitioner and others did unlawfully 'play and carry on a game played with dice for money and other representatives of value' within the county.

Since petitioner claims the ordinance unconstitutionally caused 'conflict in jurisdiction' with State Penal Code Section 330 we must determine the interrelationship of the juxtaposed enactments. ¹ Article 11, section 11, of the California Constitution sets forth the basic chart of preemption: 'Any county, city, town, or township may make and enforce within its limits all such local, police, sanitary and other regulations as are not in conflict with general laws' (emphasis added) and the cases have defined and applied this precept.

The recent decision of the Supreme Court in Abbott v. City of Los Angeles, 1960, 53 Cal.2d 674, 3 Cal.Rptr. 158, summarizes the criterion by which we examine whether or not the Legislature has occupied a particular field to the exclusion of a local body. Basically, the court states that the 'rules * * * prevent any legislation by a local body (other than the furtherance of the state law) when the entire field, that is the subject matter of the ordinance, has already been fully occupied by the state.' 53 Cal.2d 682, 3 Cal.Rptr. at page 163. Further elaborating the principle, the court quotes Pipoly v. Benson, 1942, 20 Cal.2d 366, at page 371, 125 P.2d 482, 485, 147 A.L.R. 515, which points out the obvious conflict if the 'statute and an ordinance are identical'; that '[w]here the statute contains language indicating that the legislature did not intend its regulations to be exclusive, the general rule permitting additional supplementary local regulations has been applied'; that '[c]onversely where the statute contains express provisions indicating that the legislature intends its regulations to be exclusive within a certain field, the courts have given effect to this intention' provided that the Legislature effectuates such intention by an 'affirmative act * * * occupying that field * * *.' 53 Cal.2d at page 683, 3 Cal.Rptr. at page 164. The Supreme Court likewise relies upon Tolman v. Underhill, 1952, 39 Cal.2d 708, at page 712, 249 P.2d 280, 283, which explains that the test lies not alone in the 'language used but by the whole purpose and scope of the legislative scheme.'

The very nature of the test discloses that its application must be sui generis to the particular field involved. Thus an expression of the legislative scheme may be so detailed and extensive that it discloses a legislative purpose to exclude all local regulation; on the other hand, the enactment may be so confined as to demonstrate a legislative purpose to leave room for local action. The courts then look not only for that vague abstraction known as legislative intent but for the concrete provisions of the statute to see if they embody the design either to occupy the whole field or only part of it, leaving to local bodies an implied freedom to supplement such state legislation.

The impact of preemption finds illustration in a variety of fields. There are the areas in which the courts have held the state to have assumed full occupancy. Thus in Abbott the court points out, '* * * the fields of licensing certain types of business activities (Agnew v. City of Culver City, supra), regulating traffic on public highways (Pipoly v. Benson, supra ), presentation of claims for damages against local bodies (Eastlick v. City of Los Angeles, 29 Cal.2d 661, 177 P.2d 558, 170 A.L.R. 225), tests for loyalty as prerequisite to public employment (Tolman v. Underhill, 39 Cal.2d 708, 249 P.2d 280; Bowen v. County of Los Angeles, 39 Cal.2d 714, 249 P.2d 285), and labor's 'right to work' (Chavez v. Sargent,

Page 52

Cal.2d 162, 339 P.2d 801), have all been held to have been preempted by the state * * *.' 53 Cal.2d at page 682, 3 Cal.Rptr. at page 164.

In the Abbott case itself the Supreme Court invalidated sections 52.38-52.53 of the Los Angeles Municipal Code, 'which constitute a 'criminal registration act." 53 Cal.2d at page 676, 3 Cal.Rptr. at page 159. The court found that the statewide 'registration as a means of the apprehension of criminals' appeared from the fact that '(1) that prevention of crime and apprehension of criminals is of statewide concern * * *, (2) that criminal identification together with maintenance and dissemination of criminal statistics is best handled at state level, (3) that all persons who commit three or more felonies are personally recidivistic in character, (4) that arson, narcotics and sex offenses are types of crime apt to be recidivistic * * *, and (5) that of the three, sex offenders only require registration for public protection.' 53 Cal.2d at page 685, 3 Cal.Rptr. at page 167. The court further found conflicts between the ordinance and the state laws 'in the conventional and strictest sense of the word 'conflict." 53 Cal.2d 385, 3 Cal.Rptr. at page 167.

On the other hand, in different situations the state legislation has been held not to preempt the field. In the area of police regulation, for example, the courts have decided that a city may prohibit the possession of slot machines although the state law forbade operation and use of such machines. Sternall v. Strand, 1946, 76 Cal.App.2d 432, 172 P.2d 921. A state law regulating the sale of opium 'by requiring the seller to make certain inquiries and keep a record of certain facts' (Ex parte Hong Shen, 1893, 98 Cal. 681, 683, 33 P. 799, 800) did not occupy the field to such an extent as to invalidate a local ordinance forbidding the sale of opium 'except upon prescription of a physician furnished by the purchaser' 98 Cal. at page 684, 33 P. at page 800.

When we examine the field of state, as opposed to county, regulation of gambling, which is involved here, we find the early case of In re Murphy, 1900, 128 Cal. 29, 60 P. 465, dispositive. Petitioner there sought a writ of habeas corpus upon the ground that the applicable Vallejo ordinance conflicted with section 330 of the Penal Code. As the court states, 'The ordinance mentioned no particular game, but provides that 'every person who, within the city of Vallejo, deals, plays, or carries on, opens or causes to be opened, or who conducts, either as owner or employee, whether for hire or not, any game played with cards, dice or any divice for money,' etc., is punishable as described.' 128 Cal. at page 30, 60 P. at page 465. The language of this ordinance parallels that of Contra Costs County. As in the instant case, petitioner contended that the ordinance could not withstand the force of the statute. The Supreme Court denied the petition, holding that 'the ordinance includes all that is denounced in the statute, and it may also be that it includes much more' (128 Cal. at page 30, 60 P. at page 465), but that petitioner, charged with playing of the game of 'keno,' failed to show that this was the proscribed 'percentage game' included in the code provision. The court extracts from the overall county ordinance those specific games prohibited by state statute. The ordinance 'condemns all games of chance played for money. From this comprehensive description we must exclude those condemned by the statute.' 128 Cal. at page 31, 60 P. at page 466. The court states, 'Since it was competent for the city, by ordinance, to prohibit all games not denounced by the statute, lack of jurisdiction is not made to appear.' 128 Cal. at page 30, 60 P. at page 465.

The Murphy case has been followed in numerous instances involving gambling operations. In re Portnoy, 1942, 21 Cal.2d 237, 131 P.2d 1, concerned an ordinance which prohibited the owner or lessee from establishing a house in which gambling activities were conducted and to the extent duplicated the state law. The ordinance, however, applied to a "principal, agent, employee, servant, clerk, waiter, cashier or dealer' as well as to an owner or lessee,' (21 Cal.2d at page 241, 131 P.2d at page 3) so that respondents contended that the ordinance should be sustained because of a wider coverage than the Penal Code. Although the court found the invalid portions of the ordinance inseparably connected with the valid ones and struck down the whole of it, the court cites Murphy for the proposition that '[t]he control of gambling activities is a matter concerning which local governments possess power to enact and enforce local regulations not in conflict with general laws, for the purpose of supplementing those laws.' 21 Cal.2d at page 239, 131 P.2d at page 2.

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