Hubbard, In re

• Decision Date: 30 November 1964
• Docket Number: Cr. 7824
• Citation: 41 Cal.Rptr. 393,396 P.2d 809,62 Cal.2d 119
• Court: California Supreme Court
• Parties: , 396 P.2d 809 In re Horace H. HUBBARD et al. on Habeas Corpus.

Page 393

41 Cal.Rptr. 393

62 Cal.2d 119, 396 P.2d 809

In re Horace H. HUBBARD et al. on Habeas Corpus.

Cr. 7824.

Supreme Court of California, In Bank.

Nov. 30, 1964.

Rehearing Denied Dec. 23, 1964.

Burton Marks, Beverly Hills, for petitioners.

James T. Starr, City Pros., Carl T. Zeiger, Chief Deputy Pros., and Leonard Putnam, City Atty., for respondent.

M. Tellefson, Culver City, as amicus curiae on behalf of respondent.

PETERS, Justice.

Horace H. Hubbard, Jack J. Gerard, Jack Soglofsky, Tillie Oberman, Floyd D. Thogmartin, and Hal Miller (hereinafter referred to as 'defendants') were arrested on a charge of violating section 4140.7 of the Long Beach Municipal Code. ¹ The specifications of the charge were that defendants had been playing, for money, and within the city limits of Long Beach, a game of chance played with cards, and known as panguingui. Assuming, without deciding, that panguingui is a game of chance, it is one of the games prohibited by the terms of the ordinance, but is not a 'banking or percentage game,' as that phrase is used in section 330 of the Penal Code. ²

Defendants, who pleaded not guilty, are free on bail awaiting trial. ³ The present petition has been filed for the purpose of testing the validity of the ordinance under which they were arrested and charged. They attack the ordinance on the dual grounds that: (1) the phrase 'game of chance' as used therein is so vague as to render the ordinance invalid, and (2) it is unconstitutional and void because the state Legislature has preempted the field of gambling.

The ordinance is not vague:

Defendants contend that the phrase 'game of chance' is insufficient to advise a person of common and ordinary intelligence what games are prohibited and what games are permitted under the ordinance. If this were so, the ordinance would be void for uncertainty. (In re Newbern, 53 Cal.2d 786, 3 Cal.Rptr. 364, 350 P.2d 116; People v. McCaughan, 49 Cal.2d 409, 317 P.2d 974; In re Blaney, 30 Cal.2d 643, 184 P.2d 892.) However, the quoted phrase is not of the character claimed. This was impliedly recognized in the case of In re Allen, 59 Cal.2d 5, 27 Cal.Rptr. 168, 377 P.2d 280, 97 A.L.R.2d 1415. There the propriety of an arrest under a Los Angeles County gambling ordinance similar in its language to the one here involved, was considered. There, also, th ordinance purported to prohibit certain activities in connection with a 'game of chance.' It is true that the ordinance was not attacked on the ground of lack of clarity, so that the precise point here involved was not passed upon expressly. The contention there was that the game of bridge (the activity for which the defendant was arrested) was not a game of chance, and therefore not prohibited by the ordinance. In approving defendant's contention in that respect the court stated (p. 6, 27 Cal.Rptr. p. 169, 377 P.2d p. 281):

'The term 'game of chance' has an accepted meaning established by numerous adjudications. Although different language is used in some of the cases in defining the term, the definitions are substantially the same. It is the character of the game rather than a particular player's skill or lack of it that determines whether the game is one of chance or skill. The test is not whether the game contains an element of chance or an element of skill but which of them is the dominating factor in determining the result of the game. (Citations.)'

The opinion also pointed out that although in every card game there is an element of chance resulting from the deal or the cards, the play of each hand of bridge is predominantly a test of skill. From this discussion it would seem quite apparent that persons of ordinary intelligence should know what is and what is not a 'game of chance.' One who intends to play any given game must be presumed to know the basic rules and character thereof. He is thus able to determine in advance whether chance or skill is the 'dominating factor in determining the result of the game.' If the former dominates, the ordinance prohibits playing such game for 'money, checks, or other representative of value.' In all other cases the ordinance does not purport to prohibit play.

In the present case, we are not called upon to determine whether panguingui is a game of chance or one of skill. That question has not been made an issue herein. It will be decided at the trial. The controlling point is that the ordinance sets forth in clear terms just what type of game is prohibited, and under what circumstances. It is not, therefore, void for uncertainty or vagueness.

The issue of preemption:

Defendants' principal contention is that the entire field of gambling has been preempted by state law, leaving no room for further legislation by local authorities. That preemption, they argue, is to be found in Penal Code, section 330, supra, footnote 2. ⁴ That statute forbids playing, 'for money, checks, credit, or other representative of value,' as well as betting at or against any of 12 expressly enumerated games together with any banking or percentage game. Panguingui is not one of the 12 games expressly prohibited and, as stated above, is not a banking or percentage game. The parties agree that playing or gambling at panguingui is not expressly within the prohibitions of section 330. But, of course, that fact alone does not determine the claim of state preemption. Defendants' argument, fundamentally, is that Penal Code, section 330 should be interpreted as containing a legislative finding that only those forms of gaming expressly prohibited are inherently dangerous to public morals, and that those which are not enumerated have been found by the Legislature to constitute no evil, and beyond the scope of local regulation. On the other hand, respondent contends that the specific enumeration of several games, types of gaming, and other forms of gambling, excludes the possibility of an intent to legislate on any other, thus leaving those forms not prohibited to be dealt with under the provisions of section 11 of article XI of the California Constitution. That section provides:

'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.'

Respondent, the Chief of Police of Long Beach, also relies on section 6 of article XI (and also section 8 containing a similar provision) which provides that chartered cities, such as the City of Long Beach, may 'make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in their several charters, and in respect to other matters they shall be subject to and controlled by general laws.'

In view of these constitutional provisions, defendants' claim of state preemption must be tested against two separate concepts. The first involves the question whether there is a 'conflict' between the city ordinance and the general laws, as that term is used in section 11 of article XI. The second arises from the allegedly exclusive power of a charter city to 'make and enforce all laws and regulations in respect to municipal affairs,' as that phrase is used in section 6.

So far as the first problem is concerned, it is clear that the regulation of gambling in any form is within the purview of local police power. Defendants do not challenge this. The ordinance, therefore, is valid if not in 'conflict' with general law. Obviously, there is no grammatical conflict, since the ordinance does not purport to prohibit or regulate the listed games prohibited by Penal Code, section 330. The general terms of the ordinance may include some of the forms of gaming enumerated in the code section, but its obvious intent is to prohibit an entire class of gaming (games of chance) not mentioned in the state regulation. It is simply an attempted use of the police power in regard to a subject on which the state has enacted some legislation. There are many situations wherein municipal police power may operate on the same subject matter embraced in state legislation. This is particularly true when the local regulations purport only to supplement the general by additional reasonable requirements, or are in aid and furtherance thereof (Pipoly v. Benson, 20 Cal.2d 366, 370, 125 P.2d 482, 147 A.L.R. 515 and cases cited therein). The courts of this state have held on many occasions that local ordinances similar to the one now under review, insofar as they applied to games not enumerated in Penal Code, section 330, were not in conflict with state law. (In re Murphy, 128 Cal. 29, 60 P. 465; In re Portnoy, 21 Cal.2d 237, 131 P.2d 1; Remmer v. Municipal Court, 90 Cal.App.2d 854, 204 P.2d 92; In re Farrant, 181 Cal.App.2d 231, 5 Cal.Rptr. 171.) However, the rule on which those authorities are predicated is subject to the exception that local government may not enact additional requirements in regard to a subject matter which has been fully occupied by general state law (Pipoly v. Benson, supra, 20 Cal.2d 366, 370, 125 P.2d 482; Agnew v. City of Los Angeles, 51 Cal.2d 1, 330 P.2d 385; Abbott v. City of Los Angeles, 53 Cal.2d 674 68s et seq., 3 Cal.Rptr. 158, 349 P.2d 974, 82 A.L.R.2d 385). We must, therefore, hold (insofar as the first question is concerned) that section 4140.7 of the Long Beach Municipal Code is a valid exercise of local police power unless the state has fully occupied (i. e., preempted) the field in which it purports to operate.

In order to determine this question the 'field' involved should first be defined. As shown above (fn. 4), the general law consists of a series of prohibitory enactments covering many aspects of gambling. Do those many statutes constitute a full occupation of the entire subject matter of gambling, in its varied forms? Or is the 'field' which we are asked to find preempted by the state limited to the subject of 'gaming'; i. e., participation in games played with...