122 P. 268 | Mont. | 1912
delivered the opinion of the court.
On the fourteenth day of August, 1911, the county attorney of Silver Bow county filed an information in the district court of that county, against the above-named defendant, charging as follows: “That during thirty days in the calendar year A. D. 1911, and before the eighth day of August, 1911, in the said county of Silver Bow, state of Montana, there had been bets and wagers made, reported, recorded, and registered upon the results of contests of speed, skill, and endurance of animals upon two certain inclosed racetracks both situated in Silver Bow county, Montana, to-wit, fifteen days upon the racetrack of the Butte Jockey Club and Fair Association, and seventeen days upon the racetrack of the Butte Driving Club, and that each and all of said bets and wagers were made, and all acts done in making, reporting, and recording said bets and wagers were done, within the respective inclosures where the said contests were held and upon the same day the said contest was held, and that thereafter during the said calendar year 1911, to-wit, on the eighth day of August, A. D. 1911, and before the filing of this information, at the said county of Silver Bow, state of Montana, the said defendant, William Gemmell, did willfully and unlawfully make a bet and wager of lawful money with one John Doe, upon the result of a contest of speed, skill, and endurance of animals, to-wit, horses, which said contest was •held upon the said racetrack of the Butte Jockey Club and Fair Association, then and there an inclosed racetrack.” It will be noted that the information charges in effect that thirty-two days’ racing, upon which betting was allowed, had been had in Silver Bow county on inclosed racetracks, prior to the day on which the defendant is alleged to have laid a wager on the result of a horserace held upon the inclosed track of the Butte Jockey Club and Fair Association. The court below allowed a general demurrer to the information, for want of facts therein stated sufficient, to constitute a public offense. The state appeals.
Did the court err in allowing the demurrer, which, under the peculiar «practice in such eases, amounted to entering a judg
The eleventh legislative assembly passed “An Act to prohibit the reporting or recording or registering of any bet or wager upon the result of any contest of speed or skill or endurance of animal or beast, within certain limitations therein stated, and to limit the number of days when such bets or wagers may be recorded, reported or registered, and providing penalties for "the breach of the same.” The Act provided:
“Sec. 1. It shall be unlawful to report or record or register any bet or wager upon the result of any contest of speed or skill or endurance of animal or beast, whether such contest is held within or without the state of Montana, unless said contest is held within an inclosed racetrack or fair-grounds, and said bet or wager is made and all acts done in registering, reporting and recording said bet or wager are done within the inclosure of the racetrack or fair-grounds where such contest is held, and upon the same day such contest is held.
“See. 2. "Whenever, during fourteen days, whether consecutive or not, in any calendar year, there have been bets or wagers reported or recorded or registered upon the result of any contest of speed or skill or endurance of animal or beast upon any inclosed racetrack or fair-grounds, it shall thereafter be unlawful during such calendar year to report or record or register any .wager or bet upon the result of any contest of speed or skill or endurance of animal or beast held within- such inclosure. ’ ’
Section 4 provided a penalty of fine and imprisonment for a violation of the Act. (See Laws 1909, p. 22.)
Subsequently, and at the same session of the legislative assembly, the Act just quoted was amended by the passage of
“Sec. 2. Whenever, during thirty days, whether consecutive or not, in any calendar year in any county of the first class and whenever, during fourteen days, whether consecutive or not, in any calendar year, in any county not a county of the first class, there have been bets or wagers made, or reported or recorded or registered upon the result of any contest of speed or skill or endurance of animal or beast upon any inclosed racetrack or fair-grounds, it shall thereafter be unlawful during such calendar year to make, or report or record or register any Wager or bet upon the result of any contest of speed or skill or endurance of animal or beast held within such inclosure.” (See Laws 1909, p. 122.)
It is contended by the attorney general that the intent of the legislative assembly was to limit wagering on the results of
The Act, both before and after amendment, by section 1, prohibited, and was intended to prohibit: (a) Reporting, recording, or registering any bet or wager on any contest of speed of animals held outside of the state; (b) reporting, recording, or registering any wager upon the result of a contest of speed, skill, or endurance of animals, in the state, unless the contest is held within an inclosed racetrack or fair-grounds and all acts relating to the wager are done on the day of the contest and within the same inclosure. (State v. Rose, 40 Mont. 66, 105 Pac. 82; State v. Sylvester, 40 Mont. 79, 105 Pac. 86.) The legislation was and is commonly referred to as the “anti-poolroom law.” Section 2 of the Act, before amendment, provided inter alia that whenever, during fourteen days in any one year, wagers upon the result of contests of speed of animals had been reported, recorded, or registered upon any inclosed racetrack or fair-grounds, it should thereafter be unlawful, during the remainder of that year, to report, register, or record a similar wager on a contest of speed held within such inclosure. It will be noted that this Act applied' to all counties alike, and that it is silent as to “making” a bet or wager, except in so far as section 3 declares that all who aid or abet in any transaction prohibited by sections 1 and 2 are deemed to be principals. If the Act had remained upon the statute books, unamended, the contention of the respondent might perhaps have been upheld. "What, then, was the purpose of the legislature in amending it? That purpose was obviously fourfold, viz.: (1) To continue in force section 1, prohibiting poolselling on races held outside of the state, and also within the state outside of an inclosed racetrack or fair-grounds; (2) to enable Silver Bow county, the only county of the first class in the state, to hold race meetings at which wagers were laid, on inclosed tracks, for more than
Reversed.