2 Cal. 243 | Cal. | 1852
delivered the opinion of the Court. The only question in this case necessary for our examination is, whether the State can maintain an action of debt, under the Act to license gaming, passed March' 14th, 1851, against persons keeping gaming houses, without having procured a license as provided by the act. The act referred to makes the keeping a gaming table, without a license, a misdemeanor; and the party, on conviction, punishable by a fine of not less than $100, nor more than $1000, or imprisonment in the county jail for not less than three, nor more than six months. There is no other penalty provided; nor any provision in the Statute authorizing a civil action to recover the amount of the license. Where a right is given, and a remedy provided, by statute, the remedy so provided must be pursued. It is true, if the right existed at common law, the plaintiff might pursue either remedy, the statutory one being regarded merely as cumulative. Here a new and independent obligation has been created; and the statute must be strictly followed. An action of debt will not lie against the. defendant, as upon a penal statute. The penalty is not certain; and the law has made no provision for the mode of prosecuting such an action. The only remedy is by indictment.
Judgment reversed.