PORTNOY ET AL v. SUPERIOR COURT OF RIVERSIDE COUNTY ET AL (1941)

Petitioners, by this writ, seek to review the question of the validity of a judgment of the Justice's Court of Riverside Township, which judgment was later affirmed on appeal by the Superior Court of that county, wherein petitioners were found guilty of a violation of certain sections of a county ordinance.

Ordinance No. 248 of the County of Riverside provides in part:

“Section 1. It shall be unlawful for any person to deal, play, open, carry on or conduct or to cause or to permit or to allow to be dealt, played, opened, carried on or conducted, either as owner, agent or employee, whether for hire or not, any banking or percentage game, device or scheme, mechanical or otherwise, or any pool selling or bookmaking device or scheme not mentioned or included in Part 1, Title 9, Chapter 9, § 319 et seq., or in Part 1, Title 9, Chapter 10 of the Penal Code of the State of California, § 330 et seq., which said games, devices or schemes are played, carried on or operated with cards, dice or by any contrivance for money, checks, credit or other representative of value where the result of the playing, carrying on or operation of such game, device or scheme is dependent, in whole or in part, upon hazard or chance.

“Section 2. It shall be unlawful for any person, either as owner, lessee, principal, agent, employee, servant, clerk, waiter, cashier or dealer to establish, lease, open, maintain, keep, carry on or work in any building, house or room or any other place where any game, device, scheme, gaming or gambling is permitted, allowed or carried on in violation of any of the provisions of this Ordinance or in violation of the law of the State of California.

* * *

“Section 4. * * * it shall be unlawful for any person to own or have in his possession or under his custody or control any slot machine, upon the result of the action of which money or other valuable thing is staked or hazarded and which is or may be operated or played by placing or depositing therein any coins, checks or slugs, or as a result of the operation of which any money or other representative of value is or may be won or lost, when the result of the action or operation of said slot machine is dependent in whole or in part upon hazard or chance.”

Section 7 provides that a violation of any of the above sections shall be a misdemeanor and provides punishment by a maximum fine of $600 or imprisonment in the county jail for a maximum period of seven months or both.

Petitioners were jointly charged in count one of the complaint with the violation of ordinance No. 248 in that they did on January 15, 1941, wilfully and unlawfully maintain a building where gambling was permitted and carried on. In the second count it was charged that they, on the same date, did wilfully and unlawfully cause and permit a game to be played, carried on, and operated with dice, for money or other representative of value, such game being dependent upon hazard or chance. Count three charged that they, on the same date, did wilfully and unlawfully have in their possession and under their custody and control, four slot machines, upon the result of the action of which, money may be staked, and as a result of the operation of which, money or other representative of value may be won or lost, the result of the operation of said slot machines being dependent upon hazard or chance. Count two was subsequently dismissed. Petitioners entered a plea of not guilty and a plea of once in jeopardy. They went to trial upon the remaining counts which resulted in a verdict of guilty as to each count and the jury found for the people on the plea of former jeopardy. A motion for new trial was made, argued and denied. Joint appeals were perfected and the judgments were affirmed by the Superior Court sitting as a court of appeal.

Petitioners now contend, as contended on appeal to the Superior Court: (1) That ordinance No. 248 is unconstitutional and void as being in conflict with sections 320, 330, 330a, 331, and 337a of the Penal Code; that the ordinance covers precisely the same acts as are covered in the Penal Code; that the ordinance attempts to increase the maximum penalty, in the way of a fine, from $500 to $600, and the term of imprisonment from six months to seven months, thereby creating another conflict with the general laws. (2) That petitioners have been once in jeopardy for the offenses charged in counts one and three of the complaint. The basis for this contention is that the dismissal of count two of the complaint was a bar to any subsequent action or prosecution of the offenses contained in counts one and three of the complaint, for the reason that count two was an integral part of the alleged crime which could not be successfully separated from the other counts.

Respondents also raise the question of the jurisdiction of this court to entertain the proceeding or issue a writ of certiorari for the claimed reason that certiorari will not lie to review the judgment of a justice's court after an appeal taken and determined in the Superior Court, even though the inferior tribunal was without jurisdiction to render the judgment.

The rule is well settled that a county or city has the power, under section 11 of article XI of the Constitution, to enact police regulations and ordinances promoting considerations of public welfare, public morals, public health, and public safety, provided that such regulations are not in conflict with the general laws. The only way the legislature can inhibit local legislative bodies from enacting rules and police regulations is by the state itself occupying the same legislative field so completely that legislation on the subject by local legislative bodies will necessarily be inconsistent with the state act. So long as the requirements of the ordinance are not in themselves pernicious, as being unreasonable or discriminatory, both may stand. There may be different regulations without a conflict. In re Iverson, 199 Cal. 582, 250 P. 681. It must be conceded that the legislature, in this respect, has not so completely occupied the field in respect to gambling laws that there is no act remaining that could not be declared unlawful by a county or a municipality. Where the legislature has assumed to regulate a given course of conduct by prohibitory enactments, a county or municipality with subordinate power to act in the matter may make such new and additional regulations in aid and furtherance of the purposes of the general law as may seem fit and appropriate to the necessities of the particular locality and which are not in themselves unreasonable. Mann v. Scott, 180 Cal. 550, 556, 182 P. 281. Whether the legislature has undertaken to occupy exclusively a given field of legislation is to be determined in every case upon an analysis of the statute and of the facts and circumstances upon which it was intended to operate. Section 331 of the Penal Code provides that “Every person who knowingly permits any of the games mentioned in section three hundred thirty and section three hundred thirty a of this code to be played, conducted, or dealt in any house owned or rented by such person, in whole or in part, is punishable as provided in the preceding sections.” (Italics ours.)

In count one of the complaint it is not alleged that gambling was played, conducted or dealt in any house. It is not alleged that defendants were the owners or lessees of any house, and not alleged that the gambling permitted and allowed constituted games prohibited by section 330 or section 330a of the Penal Code. Section 2 of the ordinance under which count one is pleaded is heretofore set out in full. It will be noted that the county ordinance, in addition to making the owner or lessee liable also includes the agent, employee, servant, clerk, etc., who maintains not only a house, but any building, room, or other place where any gambling is permitted or carried on in violation of any of the provisions of the ordinance or state law, and provides a greater penalty than is provided by section 331 of the Penal Code. A comparison of the provisions of the ordinance with the provisions of the Penal Code discloses that while both deal with the same general subject, a subject which lies within the police power of both the county and the state, the section of the ordinance hereunder attacked is but another, different, more stringent regulation relating to one phase of the question dealt with in the state law. While the ordinance may include, among the acts denounced, some of the acts punishable by state law, the fact that it includes, by way of general description, games prohibited by statute, as well as those not so prohibited, does not affect the validity of the entire ordinance. But all games so prohibited by statute must be excluded from the operation of the ordinance. In re Murphy, 128 Cal. 29, 60 P. 465.

Where only part of an ordinance is invalid for any reason, in order to render the whole ordinance void for the same reason, all of the parts thereof must be so interdependent as that no one part may be eliminated without destroying the force of the whole ordinance; but where an ordinance is valid in one part, and invalid in another, the former part, if not dependent in any measure upon the latter, and can without the latter accomplish one or all of the material purposes of the ordinance, will be sustained, and that which is void will be eliminated and disregarded. It follows that the court will not declare an entire ordinance invalid where the objectionable part may be eliminated without destroying the efficacy of the remainder. The effect of such partial invalidity will then be, that the independent provision, not in its nature and connections essential to the law, may be treated as a nullity, leaving the rest of the enactment, if it comprehend within itself an entire and complete scheme, to stand as valid. We may, therefore, hold legal portions of the ordinance which declare unlawful acts not prohibited by state law. People v. Mintz, 106 Cal.App. 725, 290 P. 93. It cannot be said that the possible maximum fine and imprisonment under the ordinance here considered is an unreasonable penalty to be fixed for the commission of the acts prohibited. The ordinance is not inconsistent with kindred enactments of the state. People v. Fages, 32 Cal.App. 37, 162 P. 137; In re Iverson, supra; In re Simmons, 199 Cal. 590, 594, 250 P. 684.

As to the third count charging a violation of section 4 of the ordinance, it will be noted that section 330 of the Penal Code provides generally that it is unlawful to have in one's possession any slot machine, upon the result of the operation of which money is won or lost. The ordinance contains the same general provision except that it provides that “as a result of the operation of which any money or other representative of value is or may be won or lost”. It will therefore be noticed that under the ordinance the possession of such machine is unlawful, without the necessity of staking money or the actual operation of the machine, or without winning or losing money as a result of having staked that money. The possession of the machine becomes unlawful under section 4 of the ordinance if the machine is of such nature or character that money may be staked thereon, which machine may be operated with the result that money may be won or lost on it. Under the state law the machine must be operated and the money won or lost.

An examination of count three will disclose that it is not alleged that the machines in the possession of the two defendants were actually operated nor that money was staked thereon, nor whether or not that money was actually won or lost. There is a difference in having in one's possession a machine used and operated and a machine not used and operated. Section 330a of the Penal Code reaches the former. Section 4 of the ordinance reaches the former but also reaches the latter. The defendants were charged with the latter and not the former. The same argument and authorities therefore apply to this count as apply to count one.

The other questions presented are not meritorious or are not reviewable on this writ. Code Civ.Proc., sec. 1074; Sherer v. Superior Court, 94 Cal. 354, 29 P. 716; Times–Mirror Co. v. Superior Court, 15 Cal.App. 515, 115 P. 248; Roberts v. Police Court, 185 Cal. 65, 195 P. 1053; Spanach v. Superior Court, 4 Cal.2d 447, 50 P.2d 444; Culver v. Superior Court, 185 Cal. 144, 195 P. 1055; Albers v. Superior Court, 30 Cal.App. 772, 159 P. 453; Olcese v. Justice's Court, 156 Cal. 82, 103 P. 317; Los Angeles Bond, etc. Co. v. Superior Court, 1 Cal.App.2d 634, 37 P.2d 159.

Where a superior court affirms a judgment of the justice's court the judgment of the superior court operates to estop the defendant from proceeding in this court against the justice's court to review, on certiorari, the judgment of the justice's court. It therefore becomes immediately apparent that the respondent Justice's Court of the Township of Riverside is not a proper party to this proceeding. Sherer v. Superior Court, supra; Moyer v. Superior Court, 29 Cal.App.2d 330, 84 P.2d 240; Albers v. Superior Court, supra.

As this writ must be discharged for the reasons expressed, it becomes unnecessary to make a determination of the disputed question whether the judgment and proceedings of the justice's court in the instant case, by a writ of certiorari directed against the Superior Court, may be annulled after an affirmance of the judgment on appeal by the Superior Court. Culver v. Superior Court, supra; Fortenbury v. Superior Court, 16 Cal.2d 405, 106 P.2d 411; Abelleira v. District Court of Appeal, 17 Cal.2d 280, 109 P.2d 942, 132 A.L.R. 715.

For the reasons expressed the writ is discharged.

GRIFFIN, Justice.

MARKS, Acting P. J., concurred.