Lagoon Jockey Club v. Davis County , 72 Utah 405 ( 1928 )

I dissent. Were I of the opinion that the Redd Act is but an exception or a proviso to Comp. Laws Utah 1917, § 8161, I should readily concur in the result reached in the prevailing opinion. However, I cannot so characterize the Redd Act. Whether it should or should not be so regarded involves a comparison of the two acts or statutes.

The Redd Act, passed in 1925, is fully exhibited in the prevailing opinion. It, as is seen, relates to "horse racing and providing for the creation of a state racing commission," etc. Section 8161, passed in 1913, is the whole of chapter 34 of the Penal Code, and relates to "pool selling and bookmaking," and is so expressed in the title. It is as follows:

"Any person who engages in pool selling or bookmaking, with or without writing, at any time or place; or any person who keeps or occupies any room, shed, tenement, tent, booth, or building, float or vessel, or any part thereof, or who occupies any place or stand of any kind upon any public or private grounds within this state, with books, papers, apparatus, or paraphernalia for the purpose of recording, reporting, or registering bets or wagers, or of selling pools; and any person who records, reports, or registers bets or wagers, or sells pools, or makes books, with or without writing, upon the result of trial or contest of skill, speed, or power of endurance of man or beast; or upon the result of lot, chance, casualty, unknown or contingent event whatsoever, or any person who receives, registers, reports, or records, or forwards, or purports or pretends to receive, register, report, or forward, in any manner, whatsoever, any money, thing, or consideration of value, bet or wagered, or offered for the purpose of being bet or wagered, by or for any other person, or sells pools upon such result or pretended result; or any person who, being the owner, lessee, or occupant of any room, shed, tenement, tent, booth, or building, float or vessel, or any part thereof, or of any grounds within this state, knowingly permits the same to be used or occupied for any of these purposes, therein keeps, exhibits, or employs any device or apparatus for the purpose of recording, reporting, registering, transmitting, communicating, or transferring such bets or wagers or the selling of such pools, or becomes the custodian, stakeholder, or depositary for gain, hire, or reward of any money, property, or thing of value, stake, wagered or pledged, or to be wagered or pledged, on any such result; or any person who aids, assists, or abets in any manner in any of the said acts which are hereby forbidden, is guilty of a felony, and upon conviction is punishable by the imprisonment in the state prison for a period not exceeding one year, or by a fine in any sum not exceeding $2,000, or by both such fine and imprisonment."

The Redd Act is not one amending any statute or carving out of it an exception, or making any proviso thereto. It, on its face, is an independent act, and deals with a subject entirely different from that of section 8161 or chapter 34 of the Penal Code. The body, purpose, and intent of it are indicated by sections 1 to 5, inclusive. None of these is a mere exception or proviso to section 8161 or chapter 34 of the Code. Section 6 of the act is in conflict with section 8161 or chapter 34 of the Code. But that does not justify characterizing the Redd Act a mere exception or proviso to section 8161. Merely because two statutes, in some particulars, are in conflict, gives no license to characterize the one an exception or proviso to the other. As to that, the subject-matter, character, and purpose of the legislation must be considered. When that is done, I see no basis for the contention that the Redd Act is a mere exception or proviso to section 8161. Had the Legislature by the Redd Act, or by some act, merely amended section 8161, declaring, as is done in section 6 of the Redd Act, that it was lawful to bet or wager on horse racing under a co-operative or pari mutuel system of betting and wagering, and such were all there was to such legislation, it might be said there was but an exception carved out of or created in section 8161. But that is not what the Legislature did by passing the Redd Act, for, as is seen, the body, character, and purpose of that act, when considered in its entirety, relates to a subject wholly different from that of section 8161. I cannot close my eyes to all of sections 1 to 5, inclusive, of the Redd Act, and look alone to section 6, and say that, and that only, constituted the purpose, character, and extent of the legislation. Section 6 was but a part and parcel of the whole act relating to "horse racing and providing for the creation of a state racing commission." Because it declared betting and wagering on horse racing under the co-operative or pari mutuel system of wagering or betting lawful, rendered that section, that part of the act in conflict with section 8161; hence the provision of section 7 of the Redd Act that all acts or parts of acts in conflict with it were repealed. Thus, whatever there was in section 8161, or in any other act or statute, which forbade wagering or betting under a co-operative or pari-mutuel system of wagering and betting on horse racing, was repealed by the Redd Act. To that extent section 8161 thereafter had no more effect than though it never had been enacted. That it is the general rule (25 R.C.L. 933, and notes to Ann. Cas. 1918B, 283), that the repeal of a repealing statute does not operate to revive the original statute unless it is expressly so provided in the last repealing statute, is not disputed. The claim here is that the repealing statute was but an exception or proviso to the original statute and hence when the former was repealed the latter was revived, although no language of any kind is employed in the last repealing act restoring or reviving what theretofore was repealed. I do not concur in that.

The further point is, not what now may or may not be done under the Redd Act, for, since its repeal not anything may be done under it, but what, since such repeal, is now the status of the law as to the matter in hand. Confessedly, the Redd Act, when it was adopted, repealed all parts of section 8161, which forbade betting or wagering on horse racing under a co-operative or pari mutuel system of betting and wagering, and thereby made such betting and wagering lawful. The pertinent question thus is whether the repeal of the Redd Act restored or revived in section 8161 what admittedly was theretofore repealed therein when the Redd Act was adopted. If what was repealed was so restored by the repeal of the Redd Act, then, of course, betting or wagering on horse racing under a co-operative or pari mutuel system of wagering betting is unlawful, not because of the Redd Act, but of section 8161, which with the restoration forbids it. If, on the other hand, what was repealed in section 8161 by the adoption of the Redd Act was not restored or revived, as I think it was not by the repeal of the Redd Act, then section 8161 does not forbid wagering or betting on horse racing under a co-operative or pari mutuel system of wagering and betting, and hence such betting or wagering is not now unlawful, as there is no statute now forbidding it. Upon such viewpoint the case was considered and ruled by the court below. I think the ruling right and was justified by State Fair Ass'n v. Green (Utah)249 P. 1016, where it was said by this court, and as it now again says, that all parts of section 8161 in conflict with the Redd Act were expressly repealed by that act. The unmistakable language of section 7 of the Redd Act does not admit of any other conclusion. And I do not see how the matter is helped by unjustifiably calling the Redd Act a mere exception or proviso to section 8161.