BURCH PALMER, Individuаlly and as Representative of and on behalf of himself et al., Plaintiff and Appellant, v. THE STATE OF MONTANA, Defendant and Respondent.
No. 80-354.
Supreme Court of Montana
March 24, 1981.
Rehearing Denied April 8, 1981.
625 P.2d 550
Karen S. Townsend, County Pros. Services Bureau, Helena, amicus curiae.
MR. CHIEF JUSTICE HASWELL delivered the opiniоn of the Court.
Burch Palmer brought declaratory judgment action in the Sixteenth Judicial District Court, Custer County, for the purpose of determining thе constitutionality of
On appeal Palmer raises the following issues:
- Does
section 23-5-311, MCA , unconstitutionally deny equal protection of the laws. - Is
section 23-5-311, MCA , special legislation which violates1972 Mont.Const., Art. V, § 12 ? - Is
section 23-5-311, MCA , void for vagueness?
Palmer is the owner and operator of the Alta Saloon in Miles City, Montana. On August 8, 1979, the State filed an information charging Palmer with conducting an unauthorized card game, specifically a blackjack game, in violation of
“Authorized card games: (1) It is unlawful for any person to conduct or participate in any card game or make any tables available for the playing of card games except those card games authorized by this part.
“(2) The card games authorized by this part are and are limited to the card games known as bridgе, cribbage, hearts, panguingue, pinochle, pitch, rummy, whist, solo, and poker.”
Palmer argues the section must be declared invalid as a denial of equal protection because it distinguishes between different activities within the same generic class of cаrd games absent any rational basis or compelling state interest to support the distinction. Palmer insists this statutory classification discriminates not only against certain card games, but also against gamblers who desire to conduct and participate in thosе unauthorized card games.
Nevertheless we find the statute applies uniformly across-the-board to all persons within the State of Montana. There is consequently no classification whatever. Accordingly the equal protection argument is not proрerly before us, and we need not engage in equal protection analysis as set forth in State v. Jack (1975), 167 Mont. 456, 539 P.2d 726. Instead, we need go no further than State, Etc. v. District Court, Etc. (1979), 180 Mont. 548, 591 P.2d 656, 36 St.Rep. 489, (hereinafter Zander), in disposing of this issue.
In Zander we held:
“Criminal statutes need not apply to all areas that may be injurious to public health and failure of the legislature to do so does not constitute denial of equal protection of the laws. (Citing case.) Determination or classification of the subjects of legislation does not deny equal рrotection. (Citing cases.) If all persons in the same class are treated alike, there is no violation of equal protection. (Citing cases.) Here there is but one class and all persons within
that class are treated equally satisfying constitutional equal protection requirements.” 591 P.2d at 661, 36 St.Rep. at 494, 495.
We do not reach a determination of whether any, some or all card games should be authоrized. This is patently a question of state law for determination by the legislature. The legislature has spoken in this instance through its enactment of the Card Games Act,
Palmer‘s second argument is a corollary to his first: that
In Arps v. State Highway Commission (1931), 90 Mont. 152, 164-5, 300 P. 549, 554, overruled on other grounds, Burgan & Walker v. State Highway Comm‘n (1943), 114 Mont. 459, 137 P.2d 663, this Cоurt articulated the following distinction between special and general legislation:
“The object of the prohibition of special or local laws is to prevent a diversity of laws relating to the same subject. (Citations.) A law is not local or special in a constitutional sense that operates in the same manner upon all persons in like circumstances. ‘General laws аre those which relate to or bind all within the jurisdiction of the law-making power, and if a law is general and operates uniformly and equally upon all brought within the relation and
circumstances for which it provides it is not a local or special law in the constitutional sense.‘”
As we have already noted,
Palmer lastly attacks
We need not address the merits of this issue. The word “poker“, which Palmer is here attacking аs unconstitutionally vague, is of ancient and common understanding. Palmer is apparently knowledgeable of the meaning of poker, at least to the extent that blackjack is not encompassed within that meaning. At no time has Palmer contended the blaсkjack game he conducted at the Alta Saloon was a variation of poker. Palmer‘s counsel admitted at oral argument that Palmer and others in his position in fact realize that blackjack definitely is not a variation of poker. Since Palmer was neither injured nor jeopardized by the alleged vagueness of the word “poker“, hence by the operation of the statute, he lacks understanding to challenge its constitutionality on that basis. State v. Kirkland (1979), 184 Mont. 229, 602 P.2d 586, 590, 36 St.Rep. 1963, 1966; State v. McFarlan (1927), 78 Mont. 156, 252 P. 805.
Affirmed.
MR. JUSTICES DALY, HARRISON, SHEA, MORRISON and WEBER concur.
MR. JUSTICE SHEEHY dissenting:
I dissent. I would find the Card games Act invidiously discriminatory and strike it down.