Ex parte Kameta

• Decision Date: 13 March 1900
• Citation: 36 Or. 251,60 P. 394
• Parties: Ex parte KAMETA.
• Court: Oregon Supreme Court

60 P. 394

36 Or. 251

Ex parte KAMETA.

Supreme Court of Oregon

March 13, 1900

Appeal from circuit court, Multnomah county; M.C. George, Judge.

Habeas corpus by M.K. Kameta against D.M. McLauchlan. From a judgment discharging petitioner, defendant appeals. Affirmed.

R.R Duniway, for appellant.

Alex Bernstein, for respondent.

BEAN J.

This is an appeal from a judgment in a habeas corpus proceeding. In May, 1895, the common council of the city of Portland passed Ordinance No. 10,259, "to prohibit the sale of or having in possession lottery tickets or tools or instruments used or intended to be used in making lottery tickets," which provides as follows:

"Section 1. That it shall be unlawful for any person within the corporate limits of the city of Portland to sell or offer for sale any lottery ticket, certificate paper or instrument purporting, or representing, or understood to be, or to represent, any ticket, chance share, or interest in, or depending upon the event of, any lottery. That it shall be unlawful for any person to have in his or her possession, unless it be shown that such possession is innocent, or for a lawful purpose, any lottery ticket, certificate, or paper as aforesaid, or any tool, instrument, stamp, or device used or intended to be used in or for contriving, setting up, preparing, or drawing any lottery, or preparing for sale or distribution any lottery ticket or tickets.

"Sec 2. Any person violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor, and on conviction thereof before the municipal court shall be punished by a fine of not less than twenty dollars, and not more than two hundred dollars, or by imprisonment not less than ten days nor more than ninety days."

The petitioner was arrested under the ordinance in September, 1899, on a complaint charging that within the corporate limits of the city he "did willfully and unlawfully have in his possession, for an unlawful purpose, a lottery ticket and tickets, tools, instruments, stamps, and devices used and intended to be used in contriving, preparing for sale, and distribution of said lottery tickets, *** whereby the peace and quiet of said city was disturbed; contrary to the ordinance in such case made and provided." Upon his trial he was convicted, and sentenced to pay a fine of $75, in default of which he was committed to the city jail until payment thereof, not to exceed 37 1/2 days. He was thereafter discharged in a proceeding on habeas corpus, and hence this appeal.

The claim for the petitioner is that the ordinance is void, because (1) of a want of power in the city to enact it; and (2) the particular provision which he is charged with violating puts upon a defendant the burden of showing his innocence, and is, therefore, in violation of his constitutional rights. By the charter in force at the time of the passage of the ordinance it is provided that "the council has power and authority," within the city, "to prevent and suppress gaming and gambling houses, or places where any game in which chance predominates is played for anything of value, and to punish any person who engages in such game or keeps or frequents such houses." Laws 1893, p. 820, § 36, subd. 5. It is contended that this provision of the charter does not authorize or empower the city to prevent and suppress gaming as a substantive offense, but only gaming or gambling houses; but, if it is held otherwise, the ordinance nevertheless is void, because a lottery is not gaming, within the meaning of the charter. We are quite well satisfied the word "gaming" is used in the charter as a substantive, and not as an adjective, and that the city is vested with power to punish and suppress gaming as a substantive offense. In the construction of the charter the court ought not to lose sight of its object and purpose, and the evil it was intended to authorize the city to suppress. As said by Judge Deady, in construing the same charter provision in Re Lee Tong (D.C.) 18 F. 253, 257: "It is evident that there is as much propriety and necessity for giving the council power to suppress 'gaming' as a 'gambling house.' They are simply different phases of the same evil; the one being an end, and the other a means." So that we think the first objection is not well taken.

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