State Ex Rel. Replogle v. Joyland Club

ranging lations prohibition from absolute advertising of such upon limitations its use. Labelling

See “Controls over & Advertising of Alcoholic Bev- erages” by in 7 & Contemporary Russell Law Problems 645.

The cause is reversed and remanded with directions to dismiss complaint. MR. CHIEF JUSTICE ADAIR and ASSOCIATE JUS- TICES ANGSTMAN and BOTTOMLY concur.

MR. JUSTICE (dissenting) FREEBOURN : I judgment believe the lower court should be sustained. my opinion 4-170, R. M. 1947, C. prohibits which ad- vertising legal of a business is unreasonable and unconstitutional unduly because private interferes with a lawful business. As Adjustment said in Freeman ah, v. Board of et 97 Mont. (2d) 534, Pac. guise 538: “Under protecting or advancing interest, may unduly its the state not interfere with private prohibit business or occupations, lawful un- impose unnecessary reasonable or upon Any restrictions them. law or regulation imposes unjust which upon limitations the full use enjoyment property, destroys property use, value or deprives property the owner rights.”

Rehearing July 24, denied 1950. STATE County Respondent ex rel. REPLOGLE, Attorney,

JOYLAND Appellants. CLUB et al., No. 8962 May 5, Submitted 1950. Decided June 1950. (2d) 220 Pac. (cid:127) appellants. Messrs. Manion, Falls, Greenan and Great Mr. argued orally. Howard T. Manion Olsen, Atty. Gen., Mr. Arnold H. Jones, Mr. Willis B. Mr. Holt, Philip O’Donnell, Attys. Harold L. Gen., Mr. Asst. Miss O. County Louise Replogle, Attorney, Mr. E. Mr. McKenna, J. Weymouth Symmes, Deputy County Lewistown, D. Attys., all of respondent. Symmes Miss Replogle, Mr. Olsen and Mr. argued orally.

Mr. Thomas Marrón, County Atty., Glasgow, R. Mr. W. Bert Kronmiller, County County Atty., Hardin, Allen, Mr. Nat. A. Atty., Ryegate, amici curiae.

THE COMER, HONORABLE C. E. Judge, sitting District place MR. BOTTOMLY, JUSTICE disqualified: appeal

This is an from a Fergus of the district court of decree comity, the Holt, judge ordering Hon. presiding, C.F. district coin-operated confiscation of five slot machines loaded with money abating, nuisance, and premises as a on which the being operated. were premises of parcel one-story

The consist a of land with a building by frame owned W. Shepherd thereon the defendants S. LaMere, and Ann and situate city near outskirts of the Lewistown, in Fergus county, Montana. Shepherd

In beginning op- and Mrs. owned LaMere and erated premises a bar and restaurant on the so owned them. they organized April 1947, incorporated

In and caused to be Club, Joyland “nonprofit organiza- the defendant a so-called Shepherd president secretary- tion” of which and Mrs. LaMere incorporator Medvee, The third treasurer. Andrew who was being vice-president, he the son-in-law the made defendant Ann LaMere. agree- Joyland Club, by

Following incorporation written its Mrs. ment, building Shepherd from portion leased a space occupied and LaMere, reserving the lessors therefrom continued to own used them for the bar which the two lessors room with operate capacity. the same their individual installed, kept adjacent immediately bar and thereto the club coin-operated machines. Mill-O-Matic maintained two Both machine, quarter One a a machine. was nickel other —the May 27, On purchased were from the Lewistown Elks Club. by the licenses for each of the machines were issued two equalization state board under

Session B. M. 84-3601 84-3610. Laws of C. secs. club housing In the and slot same room the bar meals, provided served card tables and an maintained orchestra space dancing. and floor

Shepherd charge manager operation 'was the actively participated club and Mrs. LaMere therein. The lease agreement provided pay Shepherd that the club should and to salary per month, each, Mrs. $200 LaMere a that it should pay space per $300 also to them a rental of month for the which occupied. the club

Shepherd profits testified that the to be earned the club charity Home, were to be donated to Montana Children’s a Helena, located in Montana. also testified that the He club’s operations covering period a more than three months were money paying in; the “red” out more than took that the club any profits had never made and hence had made no donation of designated charity charity. sort to nor to other September 11, 1947, On the club obtained and installed in the machines, being quarter, establishment three additional slot dime, a nickel machine. These additional slot machines were Novelty Company, represented obtained from the Helena to be a headquarters partnership, operating Helena, with and out of Montana. These three additional slot machines were delivered to county by Fergus Mitchell, a Mr. deceased, defendants since who, agent employee Novelty Company, as an of the Helena brought up them to Lewistown them truck and there set place understanding defendants’ of business with the that the Novelty pay Company, club was to Helena out of the earn- ings, an month. paid unstated amount to be accounted for or each No licenses were issued or obtained the three additional slot pay machines nor did the club for the machines nor were ever property such machines the club when seized. September 13,1947, placed, On the defendants maintained and kept management place under their in their control of busi- ness machines, the two licensed slot the three unlicensed slot machines, games played as well as certain with cards known as blackjack twenty-one, played by of which numer- all were during ous and persons evening September divers 1947. night September 13, 1947, At about eleven o’clock on deputy county, sheriff of the armed with a warrant 'of arrest for defendants and premises, a search warrant for the and accom- panied police police the chief of and assistant chief of Lewistown, county attorney Fergus county, and the raided the establishment, defendants, Shepherd "W. S. —arrested LaMere, custody, Ann and seized and took into their the five money. slot machines then loaded with appropriate proceedings instituted in the dis- Thereafter on judge, sitting trict court and trial had before district without jury, against decree was rendered and entered defendants. Enjoins (1) operating from on the The decree: defendants machines or other device of kind premises year; (2) im- period the sheriff nature for a of one orders mediately possession together take into the five slot his provided by machines as law their contents and to sell the with money in ma- proceeds together with the and to deliver county paid proper treasurer to be into the fund as chines to by law; (3) premises provided orders that the be vacated all persons; (4) directs that the sheriff forthwith lock and seal the property keep under lock building same and sealed judgment year; (5) adjudges plaintiffs have one and plaintiff’s against defendants for costs. Joyland Club, Shep-

From such decree the defendants W. S. appealed. Ann herd and LaMere have findings and

The district court made and filed written of fact operating conclusions of Therein it found that in and law. maintaining conducting a the slot defendants were public in nuisance. The decree form and substance entered Bottomly the same as that in ex entered the case of State rel. Johnson, 483, (2d) 262. Mont. Pac.

Defendants assert it was error for the trial court to so find determine, contending and accorded the that defendants were legal right use, operate, keep and maintain slot machines provisions Chapter 142, virtue of the 1945, Session Laws of particularly they and pose question: thereof and using, operating, maintaining Does the keeping use, and for slot machines, subject a constitute nuisance that is to abatement under the laws of Montana ?

Chapter 24, 94, 1947, of Title R. C. M. sections 94-2401 to 94-2428, is “Gambling.” entitled provides: “Any article,

Section 94-2409 apparatus machine or kept maintained or in violation of of this nuisance, punishment act is maintaining but the keeping provided of the same shall be in "as this act.” long This court operating maintaining since held that coin-operated slot machines constitutes under the laws of this state. century

Almost half a ago court, speaking this through Mr. Brantly, Chief in Woodman, 1902, Justice State v. 26 Mont.

67 Pac. sustained a conviction for the offense of “unlaw fully running conducting, permitting run to be and con ducted, a certain cigars nickel the slot machine for in his cigar city Helena,” store as a violation of [defendant’s] page entitled, the Laws of “An Act to Prohibit Gambling Montana, Within the State of etc. (2d) 454, 169 Pac. Hovland, 1946, 118 Mont.

In State v. for the offense judgment of conviction this sustained court running, wrongfully operating “willfully, unlawfully, and money” held the slot machine ‘as owner’ a [certain] finding- jury in to warrant sufficient evidence the record contrary Chapter running machine guilty of the slot defendant 153, Laws of 1937. 445, in- 250 Pac. 1926, 77 Mont. Sloan,

Marvin v. “prize” in trade vending paying machine a mint volved county attorney had and sheriff money. The instead of cheeks operator arrest and to the the machine to confiscate threatened by injunction issued out of the doing an enjoined from so when injunction against the dissolved the This court district court. remanded the cause with judgment and officers, reversed the against law the to dismiss the suit to the district court directions through Mr. Chief Justice officers, and, speaking enforcement is a question in “Undoubtedly machine Callaway, the said: contemplation of section gambling within the device ’’ supra Codes [Rev. 1921]. (2d) 712, 4 Clark, 1931, 90 Mont. Pac. In Dorrell v. county seized two slot Wheatland R. the sheriff of 79 A. L. parlor in Dorrell’s billiard installed which had been 25 “pay” to the owner that he would agreement an under % arrested Dorrell who in, and money took the the machines The such machines. operating guilty the crime of pleaded money in machines be found the that the district court ordered be that the machines the court and the clerk of deposited with money turned over destroyed. that the Dorrell demanded him suit to recover the instituted the refusal he upon clerk’s posses the “immediate entitled to money, alleging- that he was appeal whether sec on the was point dispute in of it. sion” 1921 broad wete 11167 Penal Code 11166 and tions ma and destruction of confiscation the permit the enough the was entitled to have operator Dorrell and whether chines affirming judgment in This court him. money returned to conformity in with the judgment court, “The said: the trial

129 there good morals.” This court and of public policy of the state Mont, (2d) page at page 589, Pac. said, further at did not the sheriff apparent is first A. L. R. 1000: “It authorized money The statute wrongfully question. seize the # * * Clearly, these operation. him to seize the slot machines operated ‘money and were as machines’ were what known manipulating lever, a when coin placing a coin a slot if, operating machine part of the device became coins from operator lucky, it released other perchance, the was expelled them there workings of machine the internal them, circumstances, coins, and all of Under such from. lever, or part gambling device as was the were as much a operated their dials, slot; the machines could not be without sheriff, they seized use, and were when When, therefore, ‘pay’ except could not for the coins therein. away them, he the sheriff carried machines as he found duty imposed upon trespass performed committed no but —he him law. Johnson, (2d) 1017, In State v. N. M. Pac.

the court said: only urged

“Appellants not the restoration of the paraphernalia devices, tersely pose question: If the but money disposition is not to be restored what will the court make money placed A of it? sufficient answer is that when the was them, play as an inducement to the slot machines and set aside component gambling devices, contra- part it became a of such subject money band, and to seizure. The use of the thus made their appellants, resulted in a forfeiture of dominion and they inquiry concerning its ownership it, and cannot now make disposition. money, segregated gambling paraphernalia, cannot

“That as recently announced be restored to the former owner is a doctrine. Clark, 585, (2d) 712, 90 4 79 v. Mont. Pac. See Dorrell L. R. authorities are assembled. Courts of A. where the rapid jurisdictions have followed succession the reason- other court, generally hold, and courts now and we ing of the Montana money, an properly so, think that which has been ear-marked as may integral gambling equipment, as a part of be seized (2d) 539; Brett, 627,137 Pac. State v. device. Moore v. Okl. (2d) 468; Engine McNichols, 117 Pac. Fairmont Idaho County, Super. 367, (2d) 5 A. Company Montgomery 135 Pa. v. (2d) 662; 419; Krol, 8 N. W. State v. People v. Mich. Wachenfeld, 474; Klozar, App., (2d) Kenny N. Ohio E. 184 A. 14 N. J. Misc. 322. approve Appellants doctrine. forfeited their have

.“We money it, in no ownership having thus forfeited are ownership, they can enlist position to assert a claim of nor they purpose inquiry of the court for the of an when aid even money being must, claim, was basis of their show that the illegal used them in an manner.” recent Benevo- of State v. Las Cruces Elks Club of case al., 1950, & 54 N. lent Protective Order of Elks et M. (2d) 821, Supreme Pac. Court of New Mexico said: “Following raid the Sheriff’s force members of the Las Police on club rooms of the intervenors in Cruces State money a number of slot machines loaded with were where seized they apparently back room where for the time from a were stored, Attorney petition in Court the District filed a the District asking they destroyed grounds they be ordered on the gambling paraphernalia, possession were that their was unlawful 41-2201, nuisance; 1941 Compilation, under Section and a possession general and further that their was detrimental to the people county Dona Ana and of State welfare of the New Mexico.

‘‘ Legion permitted The Elks Club and the Post were to inter- up ownership their a number vene and set seized granting petition resist for their de- machines and * * * struction. argument pleadings and the “Upon a consideration directing entered an order counsel, the District Court the offi- appeal destroy the slot this followed. cers (appellants), recognize they “The intervenors the fact that right have no operate more a gambling slot machine or other device than state, notwithstanding the most humble citizen the fact that, according reports, attorney press one district who should better, have recently quoted stating known as he was did not antigambling applied believe laws to fraternal or- * * * ganizations or clubs. Dictionary, p. 1210,

“Ballentine’s Law defines a slot machine device, as a gambling public knowledge but that slot machines are gambling universal devices is so that it a of time seems waste * * * space to cite to that authorities effect. “The ‘gambling paraphernalia’ term sufficiently described judgment these bandits, one-armed and the be affirmed. will 1941, 111 Rilburn, 400, State ex rel. Dussault Mont. (2d) 99, Pac. 1113, A. L. held pin R. this court ball gambling operation machine was a device, involved whereof properly enjoined was a provisions as nuisance under the 11124, 1935, defining nuisance, section R. C. M. a and under the 1935, of section R. C. M. as amended “Hickey being Law,” so-called section 1 of 153 of the Session 1937. Laws of Leahy ’Rourke, 1944,

State ex rel. v. O 115 Mont. 146 Pac. (2d) appeal judgment was an from a in an action brought under R. C. M. gambling section a abate jury nuisance. The action was tried to the without court a findings holding guilty maintaining made the defendants nuisance, enjoining thereof, by judg continuance followed abating closing ment premises such nuisance and for one year. appeal On the this said: “The statute, court nuisance section Revised Codes ^[1935] under which present prosecuted, action was gambling, intended to reach all forms of including lotteries, prohibited by which are- seq. section 11149 et many well as as the forms pro enumerated in and seq. game hibited et The ‘Reno’ played as * ** and carried on constituted a might nuisance which en- statute this ease. prevented equity suit

joined and 11123-11133, Code, secs. remedy, chapter Penal giving law on at when carried Codes, gambling, declares Revised for its abate- provision is made particular place, a nuisance and every building place By prevention. and ment says which be a nuisance purpose is declared to used for such Emphasis sup- prevented.” enjoined and shall be and abated plied. rely upon ex rel. Stewart State

Defendants in the case at bar R. 137, 49 A. L. Court, 361, 251 Pac. v. District 77 Mont. proof of what the 629, contending must be that thereunder there distinguished from a mere crime. law denominates nuisances as nd operation, possession a Montana the the law of Under gambling and under machines is main-tenanceof slot the Stewart nuisance. While public a these same constitutes laws authority statutory a in the absence of Case, supra, holds that jurisdiction prevent the com exercise equity will not court equity a court of crime, clearly holds that a it also mission of enjoin- state, public a jurisdiction, at the suit of has constituting also a such nuisance be although act nuisance crime. authorize the substi- urge law does not that the

Defendants substi- action nor the for a criminal proceeding a tution of civil jury proceedings in these a and that single judge tution of have been invaded. privileges defendants constitutional rights in wise have constitutional defendants’ None of the here reviewed. As proceedings invaded manner been argument of this during the oral from the bench pointed out abatements were pertaining to procedure appeal the laws public eliminating- prohibiting purpose enacted for illegal prohibited practices engaged Those nuisances. designated the enactments of characterized and business must antici- assembly nuisance the state abatement under such they may be held answerable pate been in full force and abatement have governing The laws laws. century. effect in this state for almost half a These laws have long applied by been properly the courts of this state cases coming purview within their and the decisions of this court on in harmony review are generally with those of the courts jurisdictions. other J., Nuisances, See: p. 367; C. sec. Jur., Am. Nuisances, pp. 295, 454, 462, 14 ,183, 187; secs. State Johnson, v. supra; State Las Cruces Elks Club of Benevolent protective & al., supra. Order of Elks et

Two of the seized kept, displayed, machines had been main- tained, operated played money building on the premises May described from the month of 1947 to the hour of p. September o’clock m. on day and hour of the raid officers, the local law enforcement and the other three machines had been and being were used in way, the same all being played by, for and with United States coins at from least about the hour 6:00 p. September m. of 13,1947, the hour of p. 11:00 day. m. of that There was possession continuous or more less playing continuous use and acquired two first slot machines for months.

The witness Lehman testified Joy- he was not a member of the land Club but was admitted during thereto evening Sep- 13, 1947, and, tember with a companion, placed coins played five slot machines. As to the playing manner of he testified: “Well put in a pulled lever, coin and put the coin in ’’ top of the machine. $25 The witness had when he entered the defendant club and at time of the raid 11:00 at o’clock night playing his had capital reduced his to but $2.35. persons Numerous other playing were the machines also. operations

That such constitute a may nuisance which be abated under the laws of this state is clear.

In 1895 assembly state enacted section 600 of Penal 1895 prohibiting Statutes of gambling in this state. The * * * statute, alia, applied “every inter preson who conducts * * * any game faro, monte, roulette, lansquenet, rouge et noire, rondo, tan, fantan, poker, poker, stud-horse draw craps,

seven-and-a-half, any twenty-one, banking or percentage game or played cards, dice, with any money, checks, or device credit for * *”* any representative or Emphasis supplied. value

In 1897 the legislative assembly state compre enacted a more hensive and drastic anti-gambling statute, being Bill Senate No. 28, Session Laws of pp. 80-83, section 1 provides, whereof * * # * * * alia, inter “Every that: person any who conducts banking percentage game or any game played or chance with cards, any dice or money, checks, device credits, whatever or value n any representative any property thing or what ever punishable by a fine not less than five hundred dollars nor more than dollars, one by imprisonment thousand in the State Penitentiary period years for a of not to exceed five and for * * prosecution Emphasis costs of the supplied. ‘‘

Section provides: Every of the above Act of 1897 person knowingly permits any games who pre- mentioned in the ceding played, house, section to be conducted or dealt in room, apartment tent or person, owned or rented * * * part, whole or in punishable by person fine and such shall imprisoned be until such fine and the costs of prosecu- tion paid. are

In 1901 legislative assembly state enacted Senate Bill No. 166-168, pp. Session Laws of section whereof makes provides penalty it a crime and every to be meted out per- or, son “who runs conducts nickel-in-the-slot machine or * * * permits similar machine or same to run or conducted * * *” Woodman, supra, prosecuted case of State was under the Act. legislature

In 1907 the enacted Session Laws of 1907, provides any person section whereof that who “runs or keeps any conducts, machine, machine, or other similar or slot or conducted, money, checks, credits, to be run or for permits samé any representative value, any property for thing or of or or whatever,” punishable imprisonment fine or as therein additionally separate- Section of the 1907 Act prescribed. ly in prescribes punishment “Any posses- his person who has sion, control, placed, permits or under his or to he main- who any room, building, owned, in kept space, tained or enclosure or occupied him, management control, leased or his or under or * * * ** any pro- 7 of the 1907 Act slot machine Section any kept article, apparatus vides machine or maintained or in any provisions of violation of the Act is a nuisance.

It apparent -is from the 1 of Act section the 1907 legislature running the intended to and the or that made conducting any separate slot machine or similar of- device fense, distinguished possession as from the or mere maintenance of such machines or pre- similar devices. Section of the Act any punishment person scribed possession, who has or control devices, who including maintains outlawed slot machines. legislature Here the dealt with One, two distinct offenses: operation 1, of machines and in devices described section other, possession of the machines and maintenamce devices in 2. described M. See sections R. C. 1907, inclusive. assembly 1917 the state enactment 86, Laws of amended section Revised Codes 1907, supra, so prescribe punishment operation as to or for the

playing being of slot the enactment carried forward 11183, inclusive, embodied sections 11159 Re- vised Codes 1935.

Section complete Revised Codes itself both as constituting to the acts penalty offense therefor. running, conducting any It forbade keeping by or person machine, punch board or other similar ma- chine or run money device representa- conducted for tive of value.

Section complete Revised Codes of is also in itself constituting acts both to the penalty offense and the any person therefor. It forbade having from possession his placed, permitting or maintained under Ms or from to be control any owned, kept building, or in leased room, space, enclosure or by Mm, management slot occupied .or or or control under Ms .machine. 1935, applied 11160, R. M. to all C.

Section and section of possessed within the Montana operated slot or state officer, except only “a persons save and any and all * * * in or reason person coming possession into thereof or a holding duty and same of the of an official the performance pro- supra. The according Sec. disposed be law. year 1935 punch boards, hence in the applied hibition also to all state confusion, in the law of this there no conflict was —no lawfully could run or clearly provided person which law thát no Mon- punch within the machine or board conduct state tana. “Hickey assembly enacted the

In 1937 the state Laws of 1937. In section being Chapter 153 of the Session Law” substantially legislature retained and re-enacted Act the of such 1935, penalizing R. M. provisions of section C. all of the * * * causes to run or “Every runs or conducts or person who Imme- conducted, keeps any within this state. slot-machine” prohibitions cohtained following the diately re-enactment para- R. M. in same section and in C. the section amendatory Act, legislature inserted the graph of the the licensing lifting “hickey” proviso provision a law which is dominos, games upon certain card on checkers and ban prescribed payment a and under conditions license fee stimulators, pull as boards permitting the use of “trade boards,” upon payment ticket license fee if and also imposed by Act. conformity when used the restrictions legis- Laws Session 1 of substantially re-enactment of all assembly appended to its lative “hickey” R. M. 11159, C. of section however, “provided, that it shall be lawful reading: proviso organizations, stores, organizations, fraternal charitable cigar payment business, upon places of drug stores and other * * * an- ($10.00) ten dollars sum of license fee therefor business, to place in such nually per operated used table of their customers pleasure keep maintain and use and which such which at patrons, with card tables and cards euchre, jack, whist, whist, bridge black games rummy, freeze-out, seven-up, hearts, ca- pinochle, pangene, pangeni, or high-five ante, dominos, solo, cribbage, hundred, penie sino, five may pastime and amusement cus- played and be for checkers maintenance of which minors, tomers who are not and for the purchase charge may made, paid by the users of to be in merchandise at the trade checks which must be redeemable merchandise, going price retail of such which is the stock in business; places may, upon trade of such and that of business * * * payment for and a license therefor exhibit use sale of fee all minors, stimulators, pull not customers such as boards trade boards, and ticket where each board so used returns to the owner or not to going price goods business erceed the retail dis- posed disposed through same, of and sold and the use of the * * * goods goods which must not be other than the constitut- ing the usual using stock trade of the business the same.” Emphasis supplied. “Hickey

Section of the provides Law” that the license issued place to each of business “shall show on the face thereof, the number card for which paid, tables license and the trade stimulators, any, if for the use of which paid.” license is Em- phasis supplied. quoted “hickey” proviso the above

While of the first section expressly applies 1937 Act “cigar includes stores, organizations, organizations, charitable drug stores and fraternal places business, upon payment other of a yet fee” license provides: Act the third section of the “Section 3. That re- ligious, organization, fraternal or charitable private and all homes, provisions are not included within this act.” Em- phasis supplied. legislative assembly expressly

When the 1937 included in sec- organizations tion 1 both fraternal and charitable organizations, legis- Act, and in section 3 of the the same same provided they pro- lature also “are not included within the Did act,” legislative visions of this then intent? what was the legislature intend to religious, include charit- fraternal organizations private homes, able did it intend to exclude them? “Hickey bill which Law” was and became the “An Act to Section 11159 Codes of entitled: Amend Revised

Montana, 1935, Games, Prohibiting Gambling Said Amendment Providing Playing Certain Games for Amusement Pastime, and the Use in Places of Business Trade Stimu- Treasurer, Upon Payment County lators of a License to the Providing Penalty Violation Thereof. only mention,— Both the title of the Act and its only amend, only 11159, R. C. M. 1935. affect section —and clearly

The bill was intended to amend and to add additional is: “An plainly as the title states it provisions to section Montana, Amend Section Revised Codes of Act to *” * * words of title Prohibiting Gambling Games These the amend the intent section which evidence games. prohibiting gambling Thus are the words section was one merely descriptive section Gambling of the “Prohibiting Games” (11159) legislature intended to amend. which the in legislature intend make or add did the

What amendment Manifestly amendment existing ? it intended that the law to the “hickey” pro- provisions of section the should add to the ‘‘ Providing Said Amendment to the bill states: for the viso title Pastime, Amusement and Playing Games for the of Certain for Upon in Places of Business Trade Stimulators the the Use County Treasurer, Providing Payment to the a License quoted Thereof. The from Penalty for Violation words the descriptive 1937 Act are of the amendment which title of the the engraft upon make and which it did intended to legislature the amendatory existing law as contained section 11159. The change Act of 1937 made to and it made no no reference section E. M. 1935. C. “Hickey provides

The It licensing Law” is statute. “annually licensing fee $10 card tables. The license per operated” place table used or in the of business. licensed provides stimulators, The Act also licensing for the of “trade pull such as boards and ticket boards.” For the license these annually. fee is Upon payment prescribed $10 also “hickey” license fee games the numerated are declared to be “games” lawful. dominos, The enumerated are checkers and games certain played playing with cards. Slot machines are not among included “hickey” games the enumerated legis accorded blessing lative nor are slot among machines included “trade given stimulators” legislative approval. “Hickey Law,” The like section operation bans the and all slot ma by any chines persons and all and there is nothing in the “hickey” proviso legalizes operation. their “Hickey

Section 3 clearly Law” “any states that re- ligious, fraternal or organization, charitable private and all homes, are not provisions included within act,” of this mean ing licensing Act authorizing so the playing of the enumer “hickey” games ated upon payment annually of the re quired “per fee operated” license used table place legislature business licensed. The intended that neither re ligious, organizations fraternal nor charitable private nor homes required should be pay license to entitle them to en fee joy privilege maintaining keeping tables for the use and pleasure playing “hickey” of their members games they are not included within the of such licensing Act.- E. C. M. portions which were un-

changed by Session Laws of must having been law from they the time considered were first rel. Aeronautics State ex Commission et enacted. al. v. State Examiners, 402, (2d) 121 194 Board Mont. Pac. 633, 641;

140 v. Aged, Montana for the 337, 344, Snidow 88 Mont. Home 722; State Corp. 506, Pac. Yale Oil Dakota, of South 88 Mont. 295 Pac. 255. general tenor spirit 11159, of section R. 1935, C. M.

before by its amendment Chapter 153, Session Laws of 1937, prohibits any persons and all running, from conducting or causing to be run or conducted Nothing machine. Chapter 153 indicates an change intention long this estab government policy lished “hickey” the fact that the proviso appended 11159, to section makes no mention whatever of slot an fortify evidences intention to rather than weaken policy. declared Klune, See 332, 336, re Mont. Pac. 286. recognized It is a well rule that of two constructions either of which is warranted the words of the amendment of public Act, preferred that is to be which best harmonizes the general amendment with the tenor spirit Act amended. In Klune, supra. re 1947,

R. M. 43-510 provides: C. sec. “Where a section part amended, of a statute is having it is not to be considered as repealed been form, re-enacted the amended but the [or] portions which are not having altered are to be considered as they been the law from enacted, the time when were and the new having are to be considered as been enacted at the time of the amendment.” here,

Where, the substance of section R. C. M. applies so far as it changed, to slot machines was never un- changed portion given Code must the same originally meaning as it had. M.

Section R. C. has not been amended in particular. It now is and all times since its at enactment assembly, state, has been law of this state 94-2404 being now section of the Revised Codes of 1947. passage Chapter 153, At the time of the Session Laws of legislature presumed to have known R. presumed of section C. M. which is «existence Chapter passage legislature If in- íbe valid.

141 is rea supra, it meaning 11160, change of section to tended in language employed definite have suppose it would sonable to any make reference wholly omitting to doing rather than so Dun Ry. Northern Pac. Co. section. whatever to Code (2d) 506. 346, 90 Pac. ham, 338, 108 Mont. 935, (2d) 390, 393, 78 Pac. al., 106 Mont. Aldahl et State v. 153, Chapter Laws “Hickey Law,”

936, this construed the court the use authorize does not 1937, supra, and held that the Act of games in enumerated betting purposes in the trade for of checks ‘‘ expressly pro- Act, chapter stating: part The of that first 1, language no authoriz- proviso, it. contains hibits The section ing it. 1937, Law,” Chapter 153, “Hickey 1 Section Laws plays against said “every person who or bets at or provides that provided, is games devices, except prohibited or as hereinafter construing Act in misdemeanor” in this court guilty of a “ * * * act, nothing in case, supra, find the Aldahl said: we thereof, that can said to relate back except section said provided’ and which can be phrase ‘except as hereinafter betting any games Defendants at enumerated. authorize they provisions within the of section do not contend come did to read into the of the act.” Thus this court decline “Hickey any not therein contained and Law” authorization did it refuse read into the law authorization particularly clearly ex- any games of chance not operating conducting or language in the of the enactment. pressed legislative assembly 142, Chapter In 1945 the enacted state 1945, being licensing statute. While this Act Laws of another 11159, M. 1935, R. C. and to specific makes reference to section ‘‘ ’’ Chapter 153, 1937, is Law, significant Hickey Laws 11160, of section R. C. M. it makes no mention whatever R. law of this state. See C. 1935, then and still which was 1947, 94-2404. M. 1945, reads: Chapter Laws of “Sec-

The second section ‘Hickey Law,’ 2. of the so-called Section tion The by Chap- amended of Montana of Codes Revised ter Session Laws prohibiting of Montana the run- ning, keeping operating hereby or slot declared are Emphasis supplied. tobe full force effect.” only The mention “Hickey made of slot in the Law” found section 1 of that specifically law that section prohibits, it a prescribes penalty makes offense and person runs, keeps who machines. conducts prohibition “Hickey against above Law” the run- ning, keeping operating was, of slot machines state legislative assembly, section of Laws “declared to be in full force and effect.” ‘* Chapter 142, 1945,

Section 1 of Laws of reads: Section 1. No used, slot machine shall operated, kept hereafter be or maintained operation use or by within the State any person of Montana persons or whomsoever except and as in provided. save this act ordinary meaning addition to its ‘persons’ the word includes both persons natural and artificial and partnerships, embraces all corporations, associations, persons every and other of societies all sort kind.” and 2, declaring “Hickey

Thus does section in the Law” to be full effect, supplemented force and Chap 1 of 142, ter Laws of 94-2404, as well as section R. C. M. prohibit including persons, partnerships, corporations, all asso ciations keeping and societies from possessing or slot machines within the of state Montana. Y,

While section Constitution, requires of our Article subject legislation clearly that the of shall expressed in the title, yet Act, of Chapter 142, says the title this of 1945, Laws nothing granting any authority anyone about .oper- the of to to ate, use, possess maintain or slot machines. The title relates solesly to licensing the of slot machines and the manner of ob- taining legisla- the license. Had it been the intent of the state organizations ture nonprofit to authorize operate to or main- possess machines, tain slot it doubt no would at so, have said least in the title of the Act. strictly been V has 23 Article of our Constitution of

Section Coolidge Meagher, by this See court. construed in anno (2d) 684, cited the and other cases 172, Pac. Mont. court Should this tation to said section Constitution. of slot Chapter only provides for licenses 142 not hold also makes that it corporations but “nonprofit” machines void Chapter 142would be legal operation, all then of said their subject, con containing more than one purview within its Y of the Con Article trary provisions the of said section to stitution. and history gambling laws

Considering particu- our year from relating slot larly those operation year 1937, possession, and mainte- 1901 to the punishable by fine of slot machines was made an offense nance both, by gambling ap- confiscation of the imprisonment or paratus, by and the abatement destruction the devices — closing premises is carried where “Hickey in the on, also Law” enacted the effect year Chap- if, by we conclude that the enactment of said so- ter 142 the intent to authorize Laws it was maintain, “nonprofit” corporations operate use called assembly would have said so plain words, than unambiguous terms and rather leave authority judicial to insert such the statute the courts interpretation. authorization be now inserted Should decision, 1945, by Laws court judicial legislation prohibited which it would constitute is both by statutory provisions. and constitutional ju- state, by to

Defendants here seek have the courts legislature construction, . do for that which the dicial them by legislation. undoubtedly far to do It is has thus declined language the interpret function of courts to the statutes clear, meaning ques thereof not but this is not a where the is interpretation. the defendants seek to tion of Here have the something in which is the statute not and court insert there judicial glass. any magnifying found Be- which cannot be “nonprofit” corporations may fore given authority tbe to maintain, use, operate or slot from penalties free the provided, people and abatement of this must state first speak subject on grant authority and such in a constitu- tional manner. is It neither the function province nor grant judicial authority by legis- courts to assume to such lation. urge Joyland “non-profit

Defendants Club or- is a authority ganization” operate keep and that its to slot granted by Chapter 142, machines is section 3 of Laws of provides: Eeligious organizations, which “Section 3. fraternal organizations, charitable, nonprofit or organizations, before using, operating, keeping and maintaining use, for ma- slot chines, must procure first fee pay license license provided act, provided however, religious this organizations, organizations, fraternal nonprofit charitable or organizations complete are the sole and of said ma- owners chines, therefrom, if profit, go that the entire shall organizations.” Emphasis supplied. said Joyland religious, Club neither fraternal nor charitable organization nor does it claim be such. nothing section, anything

There is in the above nor there part Chapter 142, other that authorizes Laws “nonprofit” organizations use, clubs, corporations or to either operate possess or slot machines.

Chapter 142 licensing apparent is a statute. This is from both the title of the Act. The title Eelating Licensing Act reads: “An Ma- Act to the of Slot ; Providing County chines for Optional a State License and City Payment Licenses and Fees for Pos- License session, Operation by Eeligious, Use or Fra- of Slot Machines Charitable, Organizations; Providing Nonprofit ternal Penalties the Violation of this Act and Procedure for the Equalization; Board De- the State Enforcement Thereof Act; Prohibiting fining the Terms Used This Minors from Machines; Making Appropriation Carry Playing Slot an Out

145 Repealing the Provisions This Act All and Parts of of Acts ’’ Acts in Conflict Herewith. upon prohibited payment of a license or tax business justification doing is no forbidden statute act. Pepple Headrick, 132, (2d) 757, 762, In v. 64 128 Pac. Idaho pin device, gambling wherein a ball machine to be a was held licensing payment on, of, the court “The taxes said: justifica- device, machine or furnishes no defense or operation anti-gambling tion its in violation laws.” Scott, In 211 680, 191 Hinkle v. N. C. S. E. the court payment county said: tax “The of State and license on slot justify operation machines would not those come which within the definition unlawful devices set forth in the statutes. Ingram Bearden, (2d) 212 833, 835, v. S. 47 S. E. C. holds licensing particular gambling “that the mere of a device not, itself, given be legalizing to effect of the owner ship operation Compare: Lee, same.” 236 Casmus 396, 183 185, 118 Ala. pages So. A. L. R. and annotations at p. 557, 78; 33 834; S., 833 and 53 J. Licenses, C. sec. n. Am. Jur., Licenses, 13, p. 334, sec. and 21. question the author-

of state of a referendum measure on the of izing the operation of slot the state. Ch. Ses- 1949 pages sion Laws of at 467-470. assembly Bill legislative

The enacted House No. 1949 also recognized of the an wherein declared existence calling emergency gambling, slot ma- for enforcement of the state, purpose chine other criminal laws of for which the ' attorney legislature appropriated $40,000 the the sum of to the legislative employ general, being a that such official mandate money may necessary appropriated much the be to meet so of as confronting Thus did emergency the state. the the declared so money legislature provide attorney general the with that, re- investigating prosecuting alia, inter would actions “enforcing gambling, machine crim- sult the slot and other laws the Session Laws of at inal of State of Montana.” page 642. 2 of the of section Article

Plaintiff asserts that R. C. XIX of Constitution Montana and M. the of assembly power the to author- 94-3001the without the operation pro- ize the of but since neither 142 the of nor of of of Session Laws those visions operation of legislative enactment has declared the other state, upon we are called slot machines to be lawful this not particular point appeal. so raised on to decide the this County, Defendants, relying upon Glacier 93 Mont. Shubat v. urge (2d) 614, imposing penalty all laws Pac. against strictly imposition, and must be construed sought herein, greater much remedy abatement, of is so penalty misdemeanor, for which the than the maximum convicted, duty may have that it should be the been defendants point adopt reversal, it as a of unless the of this court to evi- overwhelming against the defendants. dence not clearly that the herein shows defendants were evidence Moreover, conducting a nuisance. case Shubat had nothing only do abatement or criminal to with matters but with question However, county duty taxation. it is the attorney public nuisánces, where to commence actions to abate proper legal grounds may be therefor exist. The action prosecuted may under sections various Codes. Actions prosecuted under either said section 94-2401 or section 94- 2404 of 1947, banning gambling, or, Revised Codes of here, 94-1001 seq. under sections et Revised Codes being law, or the abatement under each and all of such sections as well as other sections the Codes.

A prosecution under R. C. M. sections 94-2401and 94- 2404,is for punishment offender, a prosecution while under R. C. M. section 94-1001 is for seq., et abatement nuisance. proceedings the instant ease the were law, had under the abatement and not under the statutes providing for punishment of the offender fine im- prisonment, county attorney proceeded but that the a so not matter may of which complain. the defendants here

The duty law it every makes the of officer authorized to make every arrests to seize slot bring machine and to before committing magistrate who must cause the machine to be de- county attorney livered to the used as to be on the evidence person trial of actually apparently possession the or or con- trol if person thereof and no such has been arrested if ar- or rested held, he be not then public the immediate and destruc- of tion must machine be ordered. R. C. M. 94- secs. 2410and 94-2411. person owning claiming “No any or to own such machine

* #* destroyed, any so shall right against any have of action person against state, county, city or for the value of such * ** article, damages. or for duty It shall be the of the trial court, disposition case, after the of and whether the defend convicted, ant be acquitted, appear trial, or fails to to cause public any the immediate and by destruction of article designated by sheriff or other officer or person the court.” R. C. M. sec. 94-2411. by any moneys peace

. “All officer and confis- seized taken by court reason violation cated order Montana, deposited shall be with laws the state of county county seizure treasurer of the in which such made, poor be credited to the confiscation was and shall fund county.” E. C. M. sec. 94-2412. sheriff to the slot machines so decree directs the sell imposes but by him, upon the law seized held duty destruc trial court the to cause the immediate they being contraband and nuis tion of the five slot adjudge. se, so order and per ances hence the decree should supra; Compare: Johnson, Clark, supra; State v. Dorrell v. & Or Las of Benevolent Protective State v. Cruces Elks Club Elks, supra. der paragraph fourth of the trial ordered that the

It therefore Is to read: “It judgment be amended court’s decree and Ordered, Adjudged and Decreed that the Sheriff of Further Fergus county, Montana, immediately possession take into his contents, (5) machines, together with their the five money machines there- from each of said all publicly he remove county treasurer contained, same be turned over to the Fergus Montana, county said county, applied treas- by law sheriff proper fund and that said provided urer as immediately publicly destroy render useless each and provided every law.” part of each of said slot entered herein as amended to that the decree it ordered forth- and that remittitur issue affirmed conform herewith be with. ADAIE MET- and ME.

ME. CHIEF JUSTICE JUSTICE concur. CALF concurring): (specially ANGSTMAN

ME. JUSTICE re- foregoing reach that opinion would I concur repeatedly held a reason: We have that if further sult constructions, of which would open to two one render statute adopt valid, we would it unconstitutional and the other latter construction. to interpreted giving special privilege

If the laws were ma- corporations operate certain select and associations they others, then would be unconstitu- chines when denied to Y the as in with 26 of Article tional direct conflict ‘‘ assembly which in part provides: Constitution ** * granting cor- pass special shall not local or laws * * * any poration, special ’’ association individual or exclusive privilege, immunity, or franchise whatever. ‘‘ general

It crim- is the rule that the state cannot enact valid im- penal inal laws if such make an one laws act done pose penalty upon no another for the same act done under circumstances, right upon like or confer the one class of citi- by any an zens do act which is a criminal offense if done Jur., 251. Law, 557, p. other class.” Am. Constitutional sec. may reasonably Since the laws be construed so as not to con- with interpret flict the Constitution we must so them and this why foregoing is further opinion reason is correct. (dissenting): MR. JUSTICE FREEBOURN strange It is indeed that what done has been under license by express authority from and can be a nuis- state held ance. finding 57-104, R.

Such direct conflict with section C. 1947, providing: “Nothing M. which is done or maintained express authority under the of a statute can be deemed a nuisance. general This is also the law. general may proposition, properly

“As a stated that the be doing expressly necessary of that which the law itself im- although doing plication nuisance, not a it be authorizes is justification which, authority, of that but for the law’s will would so. The courts not construe that to be a crime punishable under one statute which was done exercise powers specifically granted by another J., statute.” 46 C. Nuisances, sec. p. 672. legislative

“The authority complete is,a protection against accountability for a nuisance from doing the mere act, exempts person doing it from civil and criminal liability therefor at suit of the state.” 39 Jur., Am. Nuis- ances, 204, p. sec. 480.

It presumed cannot be state, taking after the license money from fraternal, religious, nonprofit charitable or- ganizations issuing therefor, portion a license from which a of the state’s comes, organizations revenue intended that such guilty be found nuisance, of a crime or their property seized places their closed, doing of business because of the licensed act.

“Furthermore, ground on presumed that it cannot be punish criminally any the state intends to act which is licensed authority, its and which portion it makes a source of a of its revenue, it well settled that imposed where a license tax is on particular a gaming, form of device, or a gambling house, pays one who tax prosecuted cannot be for gaming doing contemplated by that which is the license * * *” Jur., Gaming Contests, 10, pp. Am. and Prize sec. 404-405.

The 1945 assembly illegal was faced situation, grown proportions machine now such that national governmental many action resulted in has states. To eliminate evils, legislature legalized the worse such in fra- ternal, religious, nonprofit organizations. Money charitable and which otherwise would have left the state remained here to be put to it to become beneficial uses. Some of substantial state revenue, collecting during the state the first six months of $498,800 1950, the sum of from the of slot machine licenses. sale Chapter 142, Act, 1945, legal- Session Laws of Montana The valid, workable, subsisting izing such machines is a law. It provide merely payment not for the of license fees and does licensing statute, of licenses. It is not a mere not be- issuance legal cause there were not slot machines to license when enacted, law was but because it authorizes and sets the en- up machinery legalizing licensing tire operation machines.

The title of the Act calls attention to fact that the Act .the “Repealing All Acts and Parts of Acts in Conflict Herewith.” Act, part, permits levy tax on cities and counties to such provides illegal pos- machines. It penalty a different for session than machines existed before such enactment. provides: “Religious It organizations, organizations, fraternal charitable, nonprofit organizations, using, operating, before keeping maintaining use, pro- slot must first pay cure the license and provided by the license fee this act. * ** Also, “Any 3. organization Sec. that which has not been issued license under this act and which maintains for use or * * * permits the use of slot guilty machine shall be of a misdemeanor;” sec. “no slot machine shall hereafter used, operated, be kept or operation maintained use or within the State by any of Montana person persons whomso- except ever save and as in provided,” this act sec. and “all parts acts or of acts in hereby conflict herewith repealed.” are Sec. 11.

A person, reading reasonable after only this law can come to the conclusion 1945 legislative assembly that the expressly, say least, by unquestionable clear and implication, organizations authorized the named possess, operate own and upon slot machines which the paid license fees were and licenses issued therefor.

“Legislative authority of justify a character to conduct that judicial in the view would constitute a nuisance must be ex- press, given by or must unquestionable be clear and implica- powers expressly tion from conferred, fairly so that it can legislature be contemplated doing said very of injury.” act which occasioned the Jur., Nuisances, Am. sec. p. 483. organization possessed Since defendant operated upon paid which the license fees were and for which licenses valid law permitting were issued under a and author- izing same, it guilty cannot now of a pos- nuisance in sessing operating such machines. Respondents

STATE, Appellant, al., v. ISRAEL et No. 8957 May 2, July 6, Submitted 1950. Decided 1950. (2d) 220 Pac. notes legislative assembly provi- 1947 the state considered of Chapter sions SessionLaws of and amended section provide thereof to expire.on that all licenses issued shall day January first following the issuance thereof and that a year’s charged regardless full fee shall license of when the However, legislature license is passed issued. the 1947 no new legislation existing nor did make clarification of the may law that “nonprofit be said to authorize so-called or- operate ganization” to slot machines. legislative assembly In 1949the state considered and debated existing change both the laws and proposed numerous bills to relating yet legislation such laws it enacted no amending clarifying question either Act grant authority it had intended to “non- whether so-called organizations profit” to use or conduct slot machines. On Chapter 197, contrary, legislative assembly enacted 1949, providing Session Laws of for the submission to the voters

Case Details

Case Name: State Ex Rel. Replogle v. Joyland Club

Court Name: Montana Supreme Court

Date Published: Jun 30, 1950

Citation: 220 P.2d 988

Docket Number: 8962

Court Abbreviation: Mont.