People v. McGennis

• Decision Date: 30 August 1966
• Docket Number: Cr. 12368
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Elmo McGENNIS, Clarence Stone, John Goodwin, Elidge Anderson, Zeno Alexander, Asberry Nelson et al., Defendants and Respondents.

Page 215

53 Cal.Rptr. 215

244 Cal.App.2d 527

The PEOPLE of the State of California, Plaintiff and Appellant, v. Elmo McGENNIS, Clarence Stone, John Goodwin, Elidge Anderson, Zeno Alexander, Asberry Nelson et al., Defendants and Respondents.

Cr. 12368.

District Court of Appeal, Second District,

Division 1, California.

Aug. 30, 1966.

Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., and Richard G. Kolostian, Deputy City Atty., for appellant.

Walter L. Gordon, Jr., Los Angeles, for respondents.

McCOY, Justice pro tem.

Each of the twenty-six defendants was charged with a violation of sections 43.13.1 (count I) and 43.13.2 (count II) of the Los Angeles Municipal Code, sometimes called the 'visiting ordinances.' On their respective motions, each of the complaints was dismissed by the Municipal Court for the Los Angeles Judicial District. The People appealed to the Appellate Department of the Superior Court for Los Angeles County which, by a divided court, affirmed the judgments of dismissal. Upon affirmance of the judgments, all the judges of the appellate department joined in certifying the cases to us under rule 63, subdivision (a), California Rules of Court. We accepted the transfer as necessary to settle an important question of law.

The complaints against the several defendants are identical. Each is charged as follows: Count I, that on November 13, 1965, he 'did wilfully and unlawfully resort to, attend, and be in a house, room, and other place where there was a gambling device, gambling equipment and gambling paraphernalia, which place was barred, barricaded, built, and protected in such a manner as to make ingress and access difficult to police officers,' in violation of section 43.13.1 of the Los Angeles Municipal Code; and, count II, that on the same day he 'did wilfully and unlawfully and knowingly visit, frequent, and be present at and within a house, room, apartment, stand and place used in whole and in part as a gambling house, and at a place where a game was being played, conducted, dealt and carried on with cards, dice and other device for money, checks, chips, credit, pennants, cigars, candy, merchandise and other valuable thing, an representative of value,' in violation of section 43.13.2 of the Los Angeles Municipal Code.

All the complaints were dismissed by the municipal court on February 10, 1966, on the ground of unconstitutionality of the two sections of the municipal code on the authority of People v. Franks, 226 Cal.App.2d 123, 37 Cal.Rptr. 800.

In People v. Franks, 226 Cal.App.2d 123, p. 124, 37 Cal.Rptr. 800, p. 801, decided in April 1964, the court held 'the subject of gambling has been preempted by the state to the extent that sections 43.13.1 and 43.13.2 of the Los Angeles Municipal Code are invalid.' In In re Hubbard, 62 Cal.2d 119, 41 Cal.Rptr. 393, 396 P.2d 809, decided in November 1964, the Supreme Court sustained the validity of section 4140.7 of the Long Beach Municipal Code proscribing the playing of certain 'games of chance.'

On its appeal in the cases before us the People contended that Franks was impliedly overruled by Hubbard. In affirming the judgments of dismissal, the majority of the court said that they believed it was the duty of the municipal court and of the appellate department 'to follow the specific ruling of the District Court of Appeal in the Franks case until either higher court expressly overrules Franks, unless it is clear that Franks is necessarily overruled, by implication, by Hubbard,' and that they 'cannot see that the two decisions are necessarily incompatible.' Judge Aiso, dissenting, did not feel that the two sections here at issue 'are invalid because of being within an area preempted by the general law of the state,' saying that, in his opinion, Franks is not dispositive of these cases in view of Hubbard, 'holding that differing from the field of illegal sexual activity, the state has not completely preempted the field of gambling.'

The issue here, as it was in Franks, is whether the subject of gambling has been preempted by the state to the extent that sections 43.13.1 and 43.13.2 of the Los Angeles Municipal Code are constitutionally invalid. We have concluded that that question must be answered in the negative.

The issue of preemption arises by reasons of sections 6 and 11 of article XI of the California Constitution. Section 6 provides that chartered cities 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 * * *' Section 11 reads: '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.'

The question of preemption has been before the appellate courts on innumerable occasions. The general rules in such case were recently summed up in In re Lane, 58 Cal.2d 99, at page 102, 22 Cal.Rptr. 857, at page 859, 372 P.2d 897, at page 899: 'A local municipal ordinance is invalid if it attempts to impose additional requirements in a field that is preempted by the general law. (Cal.Const., art. XI, § 11; Abbott v. City of Los Angeles, 53 Cal.2d 674, 682, 3 Cal.Rptr. 158, 349 P.2d 974, 82 A.L.R.2d 385; Agnew v. City of Los Angeles, 51 Cal.2d 1, 5(2), 330 P.2d 385; Tolman v. Underhill, 39 Cal.2d 708, 712(4), 249 P.2d 280; Pipoly v. Benson, 20 Cal.2d 366, 370(5), 125 P.2d 482, 147 A.L.R. 515; Nat. Milk etc. Assn. v. City, etc. of S.F., 20 Cal.2d 101, 108(1), 124 P.2d 25.)

'Whenever the Legislature has seen fit to adopt a general scheme for the regulation of a particular subject, the entire control over whatever phases of the subject are covered by state legislation ceases as far as local legislation is concerned. (Pipoly v. Benson, supra, 20 Cal.2d 366, 371, 125 P.2d 482, 147 A.L.R. 515.)

'In determining whether the Legislature intended to occupy a particular field to the exclusion of all local regulation we may look to the 'whole purpose and scope of the legislative scheme' and are not required to find such an intent solely in the language used in the statute. (Tolman v. Underhill, supra, 39 Cal.2d at p. 712(6), 249 P.2d at p. 283; Abbott v. City of Los Angeles, supra, (53 Cal.2d) at pp. 682(9), 684, 3 Cal.Rptr. 158.)'

In applying these rules we are not limited, as was the appellate department, to a determination of the compatibility of the Franks and Hubbard cases. We are bound, however, by the rule 'that a later decision overrules prior decisions which conflict with it, whether such prior decisions are mentioned and commented upon or not. Mr. Chief Justice Gibson, in Sei Fujii v. State of California, 38 Cal.2d 718, 728, 242 P.2d 617, thus aptly states the correct rule: '* * * it is settled that the authority of an older case may be as effectively dissipated by a later trend of decision as by a statement expressly overruling it. " (In re Lane, 58 Cal.2d 99, 105, 22 Cal.Rptr. 857, 860, 372 P.2d 897, 900.)

The latest and certainly the most definitive case relating to state preemption in the field of gambling is, of course, In re Hubbard, 62 Cal.2d 119, 41 Cal.Rptr. 393, 396 P.2d 809. The court there sustained the validity of a section of the Municipal Code of Long Beach forbidding the playing of certain games of chance for money. In our opinion Hubbard overrules Franks, and the rules stated by the court in Hubbard as the grounds for its decision are controlling here.

The discussion of the issue of preemption in Hubbard is prefaced with the statement (p. 124, 41 Cal.Rptr. p. 396, 396 P.2d p. 812) that, in view of the controlling constitutional provisions, defendants' claim '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.'

As to the first problem, the court said 'it is clear that the regulation of gambling in any form is within the purview of local police power. * * * The ordinance, therefore, is valid if not in 'conflict' with general law. * * * 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 determinative factor in all such ca...