It is сontended that petitioner was committed by the committing magistrate on a criminal charge without reasonable or probable cause. (Sec. 1487, Pen. Code.)
The petition sets forth, in part, that petitioner was charged with a violation of subdivisions 1, 2, 3, 4 and 6, of section 337a of the Penal Code. It is further alleged in the petition that the evidence adduced at the preliminary examination, a copy of which is attached to the petition and made a part thereof, discloses the following facts to be true, and which the petitioner herein admits to be true, to wit:
“That on or about the 9th day of December, 1937, the defendant went to the City of Arcadia with the intention and for the purpose of opening and conducting therein a place of business for the purpose of accepting wagers, for a commission, and then having said wagers placed by an-employee of petitioner inside the enclosure at the pari-mutuel windows of the Tanforan Track at the City of San Bruno, County of San Mateo, Statе of California.
“That for the purpose of conducting said business said petitioner herein rented a store room at 124 East Huntington Drive, Arcadia, California, and placed thereon a large sign setting forth his character of business, a true and correct copy of which sign is set forth in the preliminary proceeding's record. That the said petitioner then and there purchased advertising in the Pasadena Independent to advertise publicly his conduct of said business. The receipt for said advertisement was introduced in evidence in the said preliminary hearing proceedings.
“That the said petitioner at the time of the commencement and opening of his place of business, until the time of árrest, kept said business open during the racing at said Tanforan Track, and accepted wagers as agent and for a commission of 10% for various persons, and during said time persons did • so make said wagers, which were accepted by the defendant in the conducting of his said business. That it was the custom and practice of рetitioner to, and he did accept all wagers taken by him, a sufficient time prior to the running of the race'at said Tanforan race track, for the petitioner to, and he did telephone to his representative who was then and there located in the near vicinity of said track, as to the amount, nature and character of said wagers, and thereupon the said representative would and did immediately go inside the enclosure at said Tanforan race track and buy pari mutuel tickets, said рurchase being made inside the enclosure,—for each and every one of said bets. That said petitioner would and did get a report of said race and races and the results thereof and would and did immediately pay to the bettors at his place of business their winnings from money which said petitioner had at his said place of business. That said winnings were paid within a few minutes after the ending of each race. That thereafter the said representative inside said enclosure would and did cash the winning pari mutuel tickets so purchased and it was the intention to forward the proceeds thereof to petitioner.
‘ ‘ In the conduct of said business, your petitioner, as to each and every wager taken by him, at said place of business, charged a commission of 10%, and no other cost, expense or service charge. That while the petitioner was conducting a place of business such as above described, the complaining witness entered said place of business on the 10th day of December, 1937, at about the hour of 1:46 o’clock p. m.,and shortly thereafter paid to defendant the sum of $4.40 and instructed defendant to deduct therefrom 40e as commission (being 10% of the amount to be bet) and that the balance thereof was a wager to be transmitted to the Tanforan track and to be wagered as follows: $2.00 for a show ticket on the horse known as ‘Naseby’ in the third race on the program on said day, and $2.00 likewise for a show ticket on the horse known as ‘Pan Full’ in the same race. That the petitioner in the course of the business being conducted by him as aforesaid, accepted said money for said purposes and then and there did deduct said commissions above set forth, and telephoned from said place of business to the representative of-petitioner who, at the time of said telephoning was located near the said Tanforan track at San Bruno, San Mateo County, California. That said telephone call from your petitioner to his said representative was made prior to the running of said rаce upon which said wagers were made. That with money then in his possession the said representative of petitioner immediately went inside the enclosure of the Tanforan race track and purchased two separate pari mutuel tickets, one in the sum of $2.00 being a show bet upon the horse known as ‘Naseby’ in the third race on said date, and the other likewise being a show bet ticket in the amount of $2.00 upon the horse known as ‘Pan Full’ in the same race.
‘ ‘ That both of said tickets for said wagers were madе within said enclosure at pari mutuel betting windows of said track prior to the running of said race.
“That immediately following the running of said race the results thereof were obtained by petitioner, and said results showed that the said complaining witness had won upon the show ticket wagered upon the horse known as ‘Naseby’ and that said ticket paid the sum of $2.80. Thereupon your petitioner, out of moneys at his place of business, paid immediately the said winnings in the sum of $2.80 to the complaining witness.
“That upon the evidence summarizеd above (and more particularly set forth in the transcript of the proceedings attached hereto and made a part hereof) the said Ardene D. Boiler, Judge of the City Court, at said preliminary hearing found against the contentions raised by the defendant and ordered the said defendant committed, a copy of which said commitment is attached hereto, made a part hereof andmarked ‘Exhibit B\ That by reason of such proceedings, and the findings and commitment at said preliminary hearing by the said Arcаdia City Court, the defendant is now imprisoned, confined and restrained of his liberty, all as heretofore alleged. ’ ’
It was also established at the preliminary hearing that petitioner entered a record of said bets in a book kept for such purpose and also furnished a ticket or receipt to each customer as evidence of each bet made as hereinbefore recited.
The decisive question involves the construction and interpretation of chapter 769, Statutes of 1933, pagе 2046, which is, as the title of the act in part recites, “An act to provide for the regulation and licensing of horse racing, horse race meetings, and the wagering on the results thereof . . . ”; approved by the 'governor June 5, 1933, in effect June 27, 1933, commonly known and hereafter referred to as the “Horse Racing Act”. At the outset and in order to avoid confusion, it should be noted that another act, to wit, chapter 436, Statutes of 1933, page 1127, bearing the identical title, was approved by the governor May 18, 1933, in effect Junе 27, 1933. Said chapter 436 is identical with chapter 769, except in the following particulars: Chapter 436 provides for 66 racing days in counties of the first class, and provides for a racing board of five members, to be appointed by the governor and approved by the senate, whereas chapter 769 provides for 100 racing days in counties of the first class and for a horse racing board of three members, to be appointed by the governor, with no approval by the senate required. Without going into detаil, it is sufficient to state that an examination of the legislative history of these two acts will reveal that chapter 769 is the effective chapter of the two and may be regarded as the law of the state on the subject-matter thereof.
The Horse Racing Act creates and establishes the “California Horse Racing Board” and fixes the powers and duties of such board. Among other things the act provides that, ‘ ‘ Said board shall make rules governing, permitting and regulating mutual wagering on horse races under the system knоwn as pari mutuel method of wagering, which shall be conducted only by such licensee and only within the enclosure and only on the dates for which such horse racing has been licensed by the board. All other forms of wagering or betting
The Horse Racing Act, by its terms, is declared to be for the purpose of the encouragement of agriculture and the breeding of horses in the state of California, and provides for a percentage of the money of every purse won by an animal bred in the state of California to be paid to the breeder of such animal.
Section 3 of the Horse Racing Act was amended by the legislature in 1935 by the addition of one sentence. Section 3 now reads as follows (the sentence added by said amendment is in italics) : “Said racing board shall have full power to prescribe rules, regulations and conditions consistent with
It is contended by petitioner that section 3 of the act, as amended, repeals by implication section 337a of the Penal Code, and that therefore the business as conducted by petitioner, as well аs the acts alleged to be a violation of section 337a of the Penal Code, are lawful and constitute no violation of said section 337a. It is further contended that the amendment, although it refers only to the conduct of a “principal” necessarily incorporates in its contemplation an agent as well. Furthermore, it is contended that the amendment adds, for the benefit of the state, a ’ revenue-producing plan to the purpose of the act.
The ultimate determination of these quеstions depends upon the meaning to be given to the sentence added by the amendment hereinbefore quoted, which meaning manifestly can be determined only by a consideration and application of certain well-known and long-established rules of construction and interpretation. In that connection, it is well settled that, “It is a cardinal rule in the interpretation of a statute that all its provisions shall be given effect, if possible, and if, by proper construction of the language used in different sections, provisions which are apparently conflicting can be harmonized, it is the duty of courts to so interpret the statute that all its provisions will be allowed to stand. It is not to be assumed that the legislature intended by the same statute to enact two inconsistent provisions.”
(Hale
v.
Mc
The rule, that an exception to a statute general in its terms, to be effectual must be specific, is approved in
Los Angeles Railway Corp.
v.
Los Angeles Flood Control Dist.,
With respect to the purpose of a statute, the courts have uniformly held that, “The language of the statute is to be so construed, when it reasonably can be, as to promote, rather than defeat the obvious purposes of the legislature”.
(People
v.
Arthur,
1 Cal. App. (2d) 768, 771 [
The policy of the state toward commercial gambling is clear and unequivocal. A mere superficial reference to the Penal Code reveals that commercial gambling in all of its phases has been uniformly condemned for many years. Indeed, this well-established policy of the state is reflected, in a measure, in connection with the manner of adoption of the Horse Racing Act. After adopting the measure, it was provided that it should not become the law until approved by the people, according to the terms of the act, in the following manner, to wit, “Section 19. This act shall take effect upon the adoption of a constitutional amendment ratifying its provisions. ’ ’
The policy of the state in this connection is again reflected in the argument in favor of the adoption of the Horse Racing Act, which was contained in the official copy of the pro
Division Two of the District Court of Appeal for the Second Appellate District and the District Court of Appeal for the Fourth Appellate District have apparently reached the same conclusion, although the identical question was not raised in the cases therein decided.
(In re William A. McKelvey and Ray Hawley for Writs of Habeas Corpus,
19 Cal. App. (2d) 94 [
To conclude, -in the light of the foregoing, that section 3 of the Horse Racing Act, as amended, is intended to repeal section 337a of the Penal Code and to repeal the other provisions of the Horse Racing Act above referred to, would be to attribute to the legislature a degree of perfidy of which even those most prejudiced would disapprove.
The argument that there is no difference in principle between the act of placing a bet in a poolroom or with a bookmaker and placing a bet in a pari mntuel machine at the races, is without merit. It is a matter of common knowledge, (and obviously the reason for the adоption in the act of such method of wagering), that all of the money deposited with the pari mutuel machines by the wagering public at the races is divided, less the commissions provided by law, among those who happen to purchase tickets on the winning horses. Those who wager under the pari mutuel system are not contending with each other, or with someone else. Moreover, it is quite evident, and was doubtless contemplated at the time the Horse Racing Act was approved by the people, that hоrse racing, as conducted under and according to the terms of the act, is quite different in many respects from
The foregoing reasoning, which disposes of petitioner’s contention that the amended act repeals by implication section 337a of the Penal Code applies with equal force to the two further contentions: namely, that although the act refers only to the conduct of a “principal”, it necessarily contemplates an “agent”; and that the amendment adds a revenue-producing plan to the purpose of the act.
Section 3 of the Horse Racing Act, as amended, affords no defense for one who maintains and operates, as petitioner herein maintained and operated, an establishment outside the track enclosure for the purpose of aiding, soliciting, encouraging and promoting commercialized gambling upon the results of races at which neither he nor his so-called “principal” are spectators. The claim, therefore, that such conduct and acts are within the purview of the Horse Racing Act is a mere subterfuge and an attempt to circumvent the established policy of the state against commercial gambling, and is without legal sanction either in the Horse Racing Act as originally adopted or as subsequently amended.
It follows from the foregoing reasoning that the writ of habeas corpus heretofore issued in this cause should be, and it is, discharged, and the petitioner is remanded to the custody of the sheriff of Los Angeles County.