State ex rel. v. Myers

• Decision Date: 08 June 1940
• Docket Number: 34649.
• Citation: 102 P.2d 1028,152 Kan. 52
• Parties: STATE ex rel. v. MYERS.
• Court: Kansas Supreme Court

102 P.2d 1028

152 Kan. 52

STATE ex rel. v. MYERS.

No. 34649.

Supreme Court of Kansas

June 8, 1940

Rehearing Denied July 6, 1940.

Syllabus by the Court.

Repeals of statutes by implication are not favored, and a former act will be held to have been repealed by implication by a later act only where the later enactment is so repugnant to the provisions of the first act that both cannot be given force and effect.

A slot machine is a "gambling device" within meaning of statute providing a penalty for every person settling up or keeping a "gambling device" or gaming house. Gen St.1935, 21-915.

The enactment in 1903 of statutes dealing with slot machines did not by implication repeal the statute of 1895 providing a penalty for every person setting up or keeping a gambling device or gaming house in so far as that statute applied to slot machines, but it was the intention of the lawmakers in 1907 in enactment of statute declaring gambling places a nuisance and providing for abatement and injunction, to retain and expand existing remedy of injunction in civil actions to abate the common nuisance resulting from the maintenance and operation of gambling devices including slot machines, in places specified in statute providing penalty for every person who shall set up or keep a gambling device or gaming house. Gen.St.1935, 21-915, 21-918, 21-1507 to 21-1509.

G.S.1935 21-918 (Laws 1907, ch. 263, § 1), and G.S.1935, 21-915 (Laws 1895, ch. 151, § 1), and G.S.1935, 21-1507, 21-1508 and 21-1509 (Laws 903, ch. 223, §§ 1, 2, 3), interpreted and held: It was the intention of the lawmakers in 1907 notwithstanding laws of 1903, touching particularly slot machines, to retain and expand the existing remedy of injunction in civil actions brought for the purpose of abating the common nuisance resulting from the maintenance and operation of gambling devices, including slot machines in places specified in G.S.1935, 21-915 (Laws 1895, ch. 151, § 1).

Appeal from District Court, Nemaha County; C. W. Ryan, Judge.

Action by the State, against H. A. Myers to abate and enjoin a nuisance which consisted in the maintenance and operation of a slot machine in defendant's restaurant. The defendant's demurrer to the state's evidence was sustained, and the State appeals.

Judgment reversed, and cause remanded with directions to overrule the demurrer.

WEDELL, J., dissenting.

Jay Parker, Atty. Gen., A. B. Mitchell, Asst. Atty. Gen., and Harry A. Lanning, Co. Atty., of Seneca, for appellant.

Charles Rooney, John W. Lewis, and Fred Rooney, all of Topeka, for appellee.

WEDELL Justice.

This was an action to abate and enjoin a common nuisance which consisted in the maintenance and operation of a slot machine in defendant's restaurant. Defendant's demurrer to the state's evidence was sustained and from that ruling the state has appealed.

The action was instituted under the provisions of G.S.1935, 21-918 (Laws 1907, ch. 263, § 1), the pertinent part of which reads: "All places used for any of the unlawful purposes as mentioned in Laws 1895, chapter 151, section 1 (21-915), are hereby declared to be common nuisances, and, upon the judgment of a court having jurisdiction finding such place to be a nuisance under this act, the sheriff, his deputy, or undersheriff, or any constable of the proper county, or marshal or chief of police of any city where the same is located, shall be directed to abate and shut up such places by taking possession of all devices and all other property used in keeping and maintaining such nuisance, and such personal property so taken shall be forthwith publicly destroyed by such officer. The attorney general, county attorney, or any citizen of the county where such nuisance exists or is kept or is maintained, may maintain an action in the name of the state to abate and perpetually enjoin the same. ***"

G.S.1935, 21-915 provides: "Every person who shall set up or keep any table or gambling device commonly called ABC, faro bank, EO, roulette, equality, keno, wheel of fortune, or any kind of gambling table or gambling device, adapted, devised and designed for the purpose of playing any game of chance for money or property, or shall induce, entice or permit any person to bet or play at or upon any such gaming table or gambling device, or at or upon any game played at or by means of such table or gambling device, either on the side of or against the keeper thereof, or shall keep a place or room to be used as a place for playing any game of cards for money or property, or keep a common gaming house, or keep a house, room or place to which persons are accustomed to resort for the purpose of gambling, shall on conviction be adjudged guilty of a felony, and punished by imprisonment and hard labor for a term not less than one year nor more than five years." (L. 1895, Ch. 151, § 1).

G.S.1935, 21-935 provides: "Every person appearing or acting as master or mistress, or having the care, use or management for the time of any prohibited gaming table, bank or device, shall be deemed the keeper thereof; and every person who shall appear or act as master or mistress, or having the care or management of any house or building in which any gaming table, bank or device is set up or kept, or of any gaming house, brothel or bawdyhouse, shall be deemed the keeper thereof."

The state's testimony was substantially the same in the instant action as in the criminal action subsequently filed against the defendant. State v. Myers, Kan., 102 P.2d 1023, this day decided. Defendant's demurrer to the state's evidence in the instant case was based in part upon the contention the evidence failed to show the slot machine was used for gambling purposes. That contention, however, is not now argued by defendant (appellee) in support of the order sustaining the demurrer. The particular ground upon which defendant based his demurrer was that slot machines were not mentioned in the act of 1895, and if ever intended to be included in G.S.1935, 21-915 (Laws 1895, ch. 151, § 1), they were in the year 1903, by implication, carved out of that statute by G.S.1935, 21-1507, 21-1508 and 21-1509 (Laws 1903, ch. 223, §§ 1, 2 and 3). Those statutes provide:

"The operation of any machine or mechanism for gambling purposes, and particularly those machines commonly known and designated as 'slot machines,' in the operation of which cash prizes or other valuable things are given, shall be deemed a misdemeanor." (G.S.1935, 21-1507).

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