City of Seattle v. Chin Let , 19 Wash. 38 ( 1898 )

The opinion of the court was delivered by

Gobdox, J.

Bespondent .was prosecuted in the municipal court, of the city of Seattle, for violating the ordinance of that city relating to lotteries. The section of the ordinance in question is as follows:

“ Section 11. Whoever shall maintain or run, or be in any manner connected with, any lottery or any establishment or business, by whatever name it may be known, wherein any property is sold or disposed of by chance, or whoever shall, within the city, sell or dispose of any lottery ticket or share either for religious or secular purposes, or any chance, or any article or thing entitling or purporting to entitle, the purchaser to any chance, or whoever shall, within said city, sell or dispose of any package or article purporting to contain a prize, or where, as an inducement to purchase, it is held out that such article or package may contain a prize or may entitle the purchaser to some article or thing of value not directly contemplated and known in the purchase shall, on conviction, be fined not less than twenty dollars nor more than one hundred dollars for each offense.”

From a judgment of conviction he appealed to the superior court and therein filed a general demurrer to the complaint. The superior court sustained the demurrer and discharged him and the city has appealed.

The first contention of the respondent is that the ordinance in question disregards a statutory exception and does not contain the same. Section 139 of the Penal Code (Bal. Code, § 7259) upon the subject of lotteries contains an exceptive provision as follows:

“ Provided, that nothing, herein contained shall apply to any lottery for charitable purposes.”

Appellant urges that this proviso conflicts with art. 2 of § 24 of the constitution of the state, which is as follows: “ The legislature shall never authorize any lottery . . .” The proviso in § 139, supra, must be interpreted by the same rule that would govern if it had been enacted after the adoption of the constitution. The language of the constitution is mandatory and the provision is self-executing. The question naturally suggests itself, if lotteries for charitable purposes may be lawfully conducted and permitted, why may not lotteries for any other purpose? We think that the constitutional provision admits of no exception in favor of lotteries for charitable purposes or for any other purpose.

2. The next position advanced by respondent, in support of the demurrer, is that the ordinance increases the minimum penalty provided by the state law for the same offense, and conflicts with the charter of the city and the constitution of the state. Section 36 of article 4 of the charter of 1890 provides that the council shall have power by ordinance,

“To provide for the punishment of all disorderly conduct and- of all practices dangerous to public safety or health, and to make all regulations necessary for the preservation of public morality, health, peace and good order within its limits, and to provide for the arrest, trial and punishment of all persons violating any ordinance of the city; but such punishment shall in no case exceed the punishment provided for by the laws of the state of Washington for misdemeanors.”

And the constitution (§§ 10 and 11 of art. 11) provides in substance that charters of cities or towns shall be subject to the control of general laws. It is contended that inasmuch as the minimum punishment provided for a violation of the ordinance is a fine of $20, that it exceeds the minimum punishment prescribed by law (§ 139, supra,) for the same offense. We think the position is not well taken. Section 301 of the Penal Code (Bal. Oode, § 1435), provides that punishment for misdemeanors shall not exceed a fine of $500, or imprisonment in the county jail for not more than one year. It fixes a maximum, but does not specify a minimum punishment, and the requirement of the charter is only that the punishment shall in no case “exceed the punishment provided by the laws of the state of Washington for misdemeanors.” Seattle v. Pearson, 15 Wash. 515 (46 Pac. 1053).

3. It is also urged by respondent that § 21 of art. 4 of the constitution, requires all prosecutions to be conducted in the name of the state of Washington, and therefore the present action cannot properly be prosecuted in tbe name of tbe city of Seattle. We tbink tbe “prosecutions” referred to in § 27, supra, are prosecutions for tbe violation of tbe general laws of tbe state, and tbat tbat section does not apply to prosecutions for tbe infraction of town or city ordinances. City of Davenport v. Rice, 75 Iowa, 74 (39 N. W. 191, 9 Am. St. Rep. 454); City of St. Louis v. Vert, 84 Mo. 206); City of Mankato v. Arnold, 36 Minn. 62 (30 N. W. 305).

4. Lastly, it is urged tbat tbe ordinance attempts to enlarge tbe terms of a state law upon tbe subject of lotteries (139,, supra), and to make tbat unlawful wbicb is not unlawful under § 139. It is urged tbat tbe words of tbe ordinance, “be in any manner connected witb a lottery,” are not included in tbe state law upon tbe same subject, and tbat therefore tbe ordinance is invalid. Tbe cases cited by respondent do not sustain bis contention. In Kennedy v. People, 9 Colo. App. 490 (49 Pac. 373), it was held tbat tbe general statute of Colorado wbicb authorizes towns “to license, tax, regulate, suppress and prohibit” peddlers, empowers them to exact a license from such persons only as are peddlers within tbe general signification of tbe word, namely, “a peddler is a trader who carries witb him tbe goods wbicb be sells,” and tbat an ordinance attempting to enlarge tbe signification was to tbat extent void. Tbe other cases, cited are to tbe same effect, and they are not in point.

Tbe charter of tbe appellant expressly authorizes tbe council to provide, by ordinance, for tbe punishment “of all practices dangerous to public safety or health,” and “for tbe preservation of public morality” within its limits, subject only to tbe limitation tbat tbe punishment provided must not exceed tbat provided by tbe state law for misdemeanors.

We think that the city had authority to pass the ordinance in question, and that it was within the powers conferred by the charter and general law of the state. The reasoning of the respondent would lead to the conclusion that the council in drafting ordinances defining offenses committed within the limit of the city should he restricted to the particular offenses created by the general law of the state, and also to the particular words and terms used by the legislature in defining such offenses. We think the right of the city to enact the ordinance in question was in nowise affected by the existence of § 139, supra.

We regret that counsel for the city have not seen fit to furnish us any brief or argument, or cite any authorities upon any of the questions noticed in this opinion, excepting the first one discussed herein, and we have been put to the labor of hunting for the authorities. It is always unsatisfactory to a court to be obliged to determine important questions which are presented and discussed in the brief of one of the parties only. Questions determined while laboring under such a disadvantage ought not to he considered as decisive — at least not as to future cases in which the same questions may arise.

The judgment must he reversed, and the superior court directed to overrule the demurrer.

Dunbab and Andes, JJ., concur.