State ex rel. Woodahl v. District Court of Second Judicial Dist. In and For Silver Bow County

• Decision Date: 19 June 1973
• Docket Number: No. 12517,12517
• Citation: 511 P.2d 318,162 Mont. 283
• Parties: STATE ex rel. Robert WOODAHL, Attorney General of the Stat of Montana, and Lawrence G. Stimatz, County Attorney of Silver Bow County, Montana, Petitioners, v. The DISTRICT COURT OF the SECOND JUDICIAL DISTRICT of the State of Montana, IN AND FOR the COUNTY OF SILVER BOW, and the Honorable James D. Freebourn et al., Respondents.
• Court: Montana Supreme Court

Page 318

511 P.2d 318

162 Mont. 283

STATE ex rel. Robert WOODAHL, Attorney General of the Stat of Montana, and Lawrence G. Stimatz, County Attorney of Silver Bow County, Montana Petitioners, v. The DISTRICT COURT OF the SECOND JUDICIAL DISTRICT of the State of Montana, IN AND FOR the COUNTY OF SILVER BOW, and the Honorable James D Freebourn et al., Respondents.

No. 12517.

Supreme Court of Montana.

Submitted June 1, 1973.

Decided June 19, 1973.

Robert L. Woodahl, Atty, Gen., Helena, Edward Laws (argued), Asst. Atty. Gen., Helena, Lawrence G. Stimatz, County Atty., William M. Kirkpatrick, Butte, for petitioners.

James D. Freebourn (argued), Butte, Maurice F. Hennessey (argued), Butte, for respondent.

CASTLES, Justice.

This is an original proceeding seeking a writ of supervisory control over the district court of the second judicial district, the Honorable James D. Freebourn presiding. Petitioners are the Montana Attorney General and the County Attorney of Silver Bow County. On ex parte application this Court issued an order which stated in part:

'Petitioners in this original proceeding seek a writ of supervisory control or other appropriate writ to reverse the action of the district judge in quashing an information and dismissing the action filed therein and infinding that gambling and lotteries are now authorized in the state of Montana. Counsel was heard ex parte and the matter taken under advisement.

'The Court now being advised in the premises, it desires that an adversary hearing be held herein to ascertain whether or not this Court should assume jurisdiction and decide this controversy and the respondent district judge through counsel and applicant, be and appear before this Court at the hour of 9:30 a. m. on June 1, 1973, to orally argue and present briefs in typewritten from on the issues involved.

'That the parties herein be prepared to argue the force, effect and validity of sections 94-2401 through 94-2403, R.C.M.1947, under the provisions of Article XIX, section 2, Constitution of Montana, 1889, and Article III. section 9, Constitution of Montana, 1972.

'That the actions of the respondent district judge in Cause Number 9033 be and are stayed pending the determination of the matters in the cause of action.'

Return and answer was made, briefs filed and the matter agrued.

On May 14, 1973, petitioner County Attorney Stimatz filed an Information in respondent district court charging one Nick Elakovich with possession of gambling equipment under the provisions of section 94-2401, R.C.M.1947. Immediately upon the Information being filed, defendant's attorney moved to quash the Information. The motion and ruling by respondent court were:

'MR. HENNESSEY: At this time, Your honor, I would move to quash the information on the grounds and for the reasons that the information taken together with the request for leave of information, does not constitute a public offense under the laws of the State of Montana. It being my position that when the Constitutional Convention presented to the people of the State of Montana a referendum vote on whether or not gambling should be allowed in the State of Montana, the people of the State of Montana voted one hundred thirty-nine thousand three hundred eighty-two (139,382) to eighty-eight thousand seven hundred forty-three (88,743) in favor of allowing gambling in the State of Montana. I would like to have marked as an exhibit for my motion the certification of the Secretary of the State as a result of the vote. It is my position, that because of the expression of the opinion of the people of the State of Montana, that we have in effect a referendum and that there are no laws on the books which prohibits gambling in the State of Montana. I have a second position that the information does not state a cause of action or a criminal offense against the defendant, in that Section 94-2401, Revised Codes of Montana, 1947 as amended, allows a limited form of gambling within the State of Montana and the Constitution specifically provided, the new Constitution specifically provided, irrespect of the referendum that all laws that are on the statutes, that are on the books, that are not contrary to the new Constitution shall be in full force and effect unless otherwise changed or allowed to expire. My position, the Legislature having met and having not repealed that section of the law, that the information charging the defendant is insufficient and should be quashed. I feel we are in the position where there are either no laws as a result of the referendum, or that the most or the least affect would be that there are laws on the books allowing gambling which have not been repealed, and the referendum at least proves these laws and the new Constitution by its saving clause or affirmment clause.

'THE COURT: Let the records show that appearing to the Court that the Constitutional Convention by its action and by the act of the people with their vote and by the Legislature of its proceedings, that there appears to the Court to be laws authorizing gambling in Montana with no laws prohibiting gambling in Montana. Therefore, the motion of counsel for the defendant is granted and the information is ordered quashed as prayed for by and moved by counsel.'

Thus, respondent court's order is based upon the reasoning that the vote of the people on June 6, 1972, on the 1972 Constitution in favor of contingent proposition number 3 and the action of the 1973 Legislative Assembly in not repealing section 94-2401, R.C.M.1947, left Montana with no laws prohibiting gambling, and particularly no law prohibiting possession of gambling equipment.

Petitioners contend the trial judge acted under a mistake of law in quashing the Information. They set forth these three issues:

1. Whether the 1937 amendment of what is now section 94-2401, Revised Codes of Montana, 1947, is invalid and of no force and effect under the provisions of Article XIX, section 2, Constitution of Montana, 1889?

,2. Whether jthe passage of the Constitution of Montana, 1972, and specifically Article III, section 9, Constitution of Montana, 1972, and the actions of the Fortythird Legislative Assembly made valid now or in the future the 1937 amendment ot what is now section 94-2401, R.C.M.1947, and invalidated all laws of the state of Montana probhibiting gambling?

3. Whether this Court has jurisdiction to issue a writ of supervisory control or other appropriate writ in this matter?

Respondent court, appearing pro se by brief and oral argument, expands its ruling quoted above by asserting that (a) possession of punchboards in themselves is not a violation of section 94-2401; (b) that section 94-2401 is made inoperative by the vote of the people at the constitutional election; and (c) that, in any event, as of July 1, 1973 when the new Constitution becomes operative, section 94-2401 was repealed by the vote of the electorate on the new Constitution. As to petitioners' issue No. 3, set forth heretofore, on the availability of the writ of supervisory control, respondent court asserts that the remedy by appeal is adequate. we shall deem this assertion to be a motion to quash and hereby deny that motion.

We will first discuss issue No. 3. Petitioners assert that remedy by appeal is not adequate since the ruling of the district court creates grave uncertainty as to the status of Montana law regarding gambling and thus imposes an impossible burden on law enforcement officials. We agree with this assertion and under the authority of State ex rel. Whiteside v. First Judicial District Court, 24 Mont. 539, 63 P. 395, and State ex rel. Harrison v. District Court, 135 Mont. 365, 340 P.2d 544, we exercse our discretion to invoke original jurisdiction.

We next consider petitioners' issue No. 1, the validity or invalidity of section 94-2401, R.C.M.1947, particularly as to the 1937 amendment to what was then section 11159, R.C.M.1935, (now 94-2401, R.C.M.1947), the so-called 'Hickey Law' passed as Chapter 153, Laws of 1937.

In the 1947 Revised Codes of Montana, the compiler's note following section 94-2401, states:

'The second proviso of this section (shown in brackets) was rendered void by the decision of the supreme court in State ex rel. Harrison v. Deniff; the validity of the first proviso was cast into serious doubt by that decision. See annotation on 'Constitutionality' below.'

Indeed, the entire 1937 amendment was unconstitutional and void. In State ex rel. Harrison v. Deniff, 126 Mont. 109, 113, 245 P.2d 140, 142, this Court said flatly:

'Sections 94-2401 et seq. and 84-5701 et seq. authorizing and licensing so-called trade stimulators, are void and invalid as violative of the constitutional prohibition.' (Art. XIX, sec. 2, Montana Constitution).

This Court, in speaking of Article XIX, sec. 2, Constitution of Montana, 1889, in State ex rel. Steen v. Murray, 144 Mont. 61, 65, 66 394 P.2d 761, 763, to make it even more clear said:

'The provisions of Article XIX, § 2, are both mandatory and prohibitory. Proposed Initiative Measure No. 63 is directly opposed to Article XIX, § 2. Measure No. 63 would repeal sections 94-3001 through 94-3011 which sections deal with lotteries in so many words as required by Article XIX, § 2, supra.

'The proposed Initiative Measure No 63 refers only to 'gambling'; it does not mention 'lotteries' specifically but does so by code section reference. Even so, that lotteries are gambling has been determined by this court. In State ex rel. Leahy v. O'Rourke, 115 Mont. 502, 504, 146 P.2d 168, 169, this court said:

'Gambling is a generic term, embracing within its meaning all forms of play or game for stakes wherein one or the other participating stands to win or lose as a matter of chance. Play at lottery is gambling.'

'This court has ruled in a number of cases, always consistently. In State v. Cox, 136 Mont. 507, 511, 512 349 P.2d 104, 106, the court said:

"To our mind, the framers of the Montana...