Leach v. State
| Decision Date | 23 March 1920 |
| Docket Number | A--3260. |
| Citation | 188 P. 118,17 Okla.Crim. 322 |
| Parties | LEACH v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
No one clause of the Constitution should be construed by itself, and to the exclusion of other portions of the same instrument but all portions of the Constitution relating to the same question should be construed together, and, as far as possible, harmonized with each other.
It is well established that no enactment of the Legislature should be held to be in contravention of the Constitution, unless its unconstitutionality is made to appear beyond any reasonable doubt.
For reasons holding Chapter 26, Session Laws 1916, a valid and constitutional enactment, and not a fraud upon the power of the referendum reserved to the people in Article 5 Constitution, see body of opinion.
Appeal from District Court, Oklahoma County; Edward Dewes Oldfield Judge.
J. D Leach was convicted of the crime of maintaining a public nuisance, and his punishment fixed at a fine of $500. Motion in arrest of judgment overruled, and he appeals. Affirmed.
Turner & McAdams, of Oklahoma City, for plaintiff in error.
S. P Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
MATSON, J. (after stating the facts as above).
For reversal, appellant contends that such part of the act, for the alleged violation of which he was convicted (chapter 26, Session Laws Oklahoma 1916), was not in force at the time of the filing of said information.
On April 4, 1893, there was approved the general act on the subject of "gaming" set forth in General Statutes of Oklahoma 1893, § 2519 et seq. With the exception of sections 2531, 2532, 2533, and 2534, and sections 2536 and 2537, which were dropped, this act was carried into the revision of 1910 and is set forth in section 2498 et seq., Revised Laws 1910, with a few slight and immaterial changes in the verbiage. As thus enacted the law denouncing "gaming" contained no provisions declaring the place where gaming is carried on to be a nuisance or the keeping or managing thereof a felony.
Then there was passed a general law upon the subject of "gaming," approved April 14, 1913 (Session Laws Oklahoma 1913, page 281), entitled:
"An act to amend sections 2519, 2520 and 2528 of the General Statutes of 1893 of the state of Oklahoma, relating to gambling; and providing penalties for running slot machines; and providing for civil penalty against owners of premises permitting same to be used in violation of section one of this act."
Amending section 2519 the first section of this act, in effect, provides that every person who opens, causes to be opened or conducts or carries on "any gambling game * * * played with any device for money" or "any representative of value," or who deals for any of those engaged in any of such games shall be guilty of a felony and upon conviction shall be fined not less than $500 nor more than $2,000 and imprisoned in the penitentiary for not less than one year nor more than ten.
Amending section 2520, section 2 of said act provides that every person who bets at any of said games or "at any game whatsoever, for money, * * * or other representatives, * * * shall be guilty of a misdemeanor, * * * punishable by a fine of not less than $25 nor more than $100, or by imprisonment in the county jail for * * * not less than one day nor more than thirty days, or by both."
Amending section 2528, section 3 of said act makes it the duty of the magistrate to whom anything is delivered suitable for use in gambling and used in violation of the act, either before or after the accused is examined by him, to determine the character of the thing delivered, and if he finds it was used or intended to be used by the accused or others in violation of the act, commands him to deliver it to the sheriff to await the order of the district court: Provided, etc.
By way of new and additional legislation, section 4, in effect, provides that any person who sets up, operates, or conducts, in or about his place of business, any slot machine for the purpose of having it played by others for money or any representative of value shall be guilty of a misdemeanor punishable by a fine of not less than $25 nor more than $100, or by imprisonment in the county jail not more than 30 days, or by both such fine and imprisonment.
Also, by way of new and additional legislation, section 5, in effect, provides, that it shall be unlawful for the owner of any real estate to use, rent, or lease or permit it to be used for the purpose of violating section 1 of the act, and that any person who shall violate the provisions of section 5 shall be liable to a penalty of not less than $1,000 to be recovered at the suit of the state; also that the penalty so recovered shall be a lien on the property so used and providing for its sale, etc.: Provided, etc.
Also, as new and additional legislation, section 6, in effect, provides that any owner, proprietor, or person in charge of any cigar stand or place where articles are kept for sale, who shall suffer, allow, or permit any person to play dice or any other game or device of chance at or in such cigar stand or place, shall be guilty of a misdemeanor punishable by a fine of not less than $25 nor more than $100.
The people by proper petition, filed in due time with the secretary of state, demanded the referendum on the act approved April 14, 1913, whereupon the Governor issued his proclamation calling an election upon said petition, being state question No. 62, to be held August 4, 1914, which was done, and the validity of said election, being subsequently assailed, it was held by the Supreme Court to have been invalid in Ex parte Smith, 49 Okl. 716, 154 P. 521, for the reason that there was not a substantial compliance with the law regulating elections under the initiative and referendum in submitting said question to the people. In said opinion it was further held:
"The filing of a petition referring to the people an act passed by the Legislature suspends the operation thereof until the same shall have been approved by a majority of the votes cast at an election held thereon."
Before any subsequent submission was ever made of state question No. 62 (), the Legislature again met in session and passed an act, declaring an emergency, approved January 29, 1916 (chapter 26, Session Laws 1916, page 54), entitled:
"An act relating to gambling; providing penalties for running slot machines; providing civil penalties against owners of premises permitting same to be used in violation of this act; declaring places where persons congregate to play at games prohibited in section 1, a public nuisance; providing penalties against peace officers for gambling or encouraging gambling; prescribing the duty of peace officers relating to the enforcement of this act, and prescribing penalties for the violation thereof; repealing sections 2498, 2499 and 2507 of the Revised Laws of Oklahoma 1910; and declaring an emergency."
Section 1 of this act is a re-enactment, in hæc verba, of section 1 of the act approved April 14, 1913 (Session Laws of Oklahoma 1913, page 281), referred to the people as stated. Section 2 of this act is a re-enactment of section 2 of the act approved April 14, 1913, with the exception that the first word in the section is changed from "every" to "any," and "is punishable," is changed to "upon conviction thereof shall be punished," and the word "dollars" inserted in the next line. In section 3 of this act, after the word "magistrate" is inserted "or justice of the peace," and in the fourth line, instead of "pursuant to the foregoing section," is inserted "as provided by law," and later in the proviso to this section is inserted "of the." Section 4 of the act of April 14, 1913, is re-enacted by section 4 of this act, in hæc verba, except the proviso at the end of the section, which is dropped.
Section 5 of this act re-enacts, in hæc verba, section 5 of the act of April 14, 1913, except that "to be" is substituted for the word "so" in the tenth line, "county clerk" is substituted for "register" in the thirteenth, and in the nineteenth line, after "administrator," is inserted "appointed by a court of competent jurisdiction."
Section 6 of this act, upon which this prosecution is based, is a new section. Section 7 of this act is a re-enactment of section 6 of the act of April 14, 1913, and sections from 8 to 15, both inclusive, of the act of January 29, 1916, are new.
Counsel for appellant contend that the Legislature, by the act of January 29, 1916 (chapter 26, Session Laws 1916, page 54), on which this prosecution is based, intended to repeal the act of April 14, 1913, by re-enacting the same with additional new sections, thus substituting the latter for the former act, and by this means defeating the referendum.
By chapter 26, Session Laws 1916, sections 2498, 2499, and 2507 of the Revised Laws of Oklahoma of 1910, were expressly repealed. These were the identical sections attempted to be amended by the act of April 14, 1913, and as the Legislature of 1916 expressly repealed these sections, it left nothing for the act of 1913, which had been suspended by the referendum, to operate upon, so that as to those particular sections the effect of the enactment of chapter 26, Session Laws 1916, was to defeat and render inoperative for all future time, if said act be held to be constitutional, the referendum demanded upon said act of April 14, 1913. This conclusion may also apply with equal force to those sections of the act of April 14, 1913, which were new legislation, and which were afterwards incorporated in substance in the act of 1916 (chapter 26, supra).
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