To a layman, it must seem strange that a judge should declare the maintenance and operation of a pinball machine to be a lottery and one which is not subject to license by the legislature or by any municipality under purported authority of legislative enactment, and at the same time that judge should hold that the information in this case is subject to *Page 113 demurrer because it appears that the pinball machine described herein was licensed by the city of Independence.
The reason for the latter holding is that the information in the nickel-in-the-slot machine case does not charge that the machine in question and its operation constitute the conduct and promotion of a lottery. The constitution of the state prohibits lotteries and the legislature cannot license them or authorize any municipality to license them.
It is the opinion of the writer that the state has limited its position to the result of defendant's operation of a non-lottery pinball machine under a license by the city of Independence.
The only question, therefore, is whether the legislature had the authority to authorize the cities, towns and counties of the state to issue such a license.
No constitutional restriction upon such authority has been cited and the writer thinks that none can be found.
An act was passed by the legislature in 1935 purporting to grant such authority to cities, towns and counties.
The 1935 act (chapter 369, Oregon Laws 1935) is complete within itself. It simply confers upon the respective counties and cities the authority to license, regulate, tax or prohibit the games mentioned therein within the respective territorial jurisdictions of said cities and counties.
No one can read it without knowing exactly what its subject matter means. It is not vague, uncertain, indefinite, ambiguous or confusing. If the entire criminal code of the state were included in its context, it *Page 114 would not be clearer, more direct or enlightening. Treating it as an amendment by implication of section 14-746, Oregon Code 1930, it is a valid enactment. Such amendments by implication are not affected by section 22, Article IV of the Oregon Constitution: Vol. 1, Cooley's Constitutional Limitations, 8th Ed. p. 315, and cases there cited.
Speaking of the provisions of said section 22 of Article IV of the Constitution, the late Mr. Chief Justice LORD said:
"The evil it sought to remedy was the mode in which the legislative power was sometimes exercised in the enactment of revisory or amendatory laws. This evil, as is well known, was the practice of amending or revising laws by additions or other alterations, which without the presence of the original law, were usually unintelligible. Acts were passed amending existing statutes by substituting one phrase for another, or by inserting a sentence, or by repealing a sentence, or a part of a sentence, in some portion or section thereof, which, as they stood, often conveyed no meaning, and, without examination and comparison with the original statute, failed to give notice of the change effected. By such means, an opportunity was afforded for incautious and fraudulent legislation, and endless confusion was introduced into the law. Legislators were often deceived and the public imposed upon by such modes of legislation. To prevent these consequences, and to secure a fair and intelligent exercise of the law-making power, was the object of the constitutional provision in question. This object it accomplished by imposing a limitation, not on the power of the legislature to make laws, but upon the mode in which that power should be exercised in the enactment of amendatory or revisory laws. If the act is in itself complete and perfect, and is not amendatory or revisory in its character, it is not interdicted by this provision, although it amends by implication other legislation upon the same subject. Such an act, although it may operate to change or *Page 115 modify prior acts, is not within the mischief designed to be remedied by said section 22. `Statutes', says Judge Cooley, `that amend others by implication are not within this provision, and it is not essential that they even refer to the acts or sections which by implication they amend': Cooley Constitutional Limitations, 152. Hence, an act of the legislature, not amendatory in character, but original in form and complete in itself, exhibiting on its face what the law is to be, — its purpose and scope, — is valid, notwithstanding it may in effect change or modify some other law upon the same subject." Warrenv. Crosby, 24 Or. 558 (561, 34 P. 661).
In the opinion from which the above quotation is made, the learned former chief justice, in commenting upon an earlier Oregon case, which declared the doctrine now asserted by the specially concurring opinion in the instant case, said:
"As the general act under consideration deprives the cities and school districts of the state of the power to assess and collect taxes, a power which had theretofore been conferred upon them by special and general laws, it is claimed that this is such a change or alteration of those laws in that particular as is amendatory, and that, unless the general law sets forth and republishes at length the part or section thereof as amended, it directly falls within the constitutional inhibition, and is void. Hence, as the effect of the act is to take from the city of Astoria the power conferred upon it by section 38 of its charter, to assess and collect taxes it is amendatory of that section and for like reason, unconstitutional. This construction of the constitutional provision in question is based on the assumption that any act of the legislature which, in effect, alters or changes an existing law, or part thereof, is an amendment of it, and void, unless it inserts the law at length, or such part as is changed or amended. In support of this construction we are cited to the case of State v. Wright, 14 Or. 369 (12 P. Rep. 708), in which Strahan, J. said: `In legislation, an amendment means an alteration in *Page 116 the draft of a bill proposed, or in law already passed: Rapaljer, Law Dict. Title, Amendment. So that if this act alters the legal effect of the charter of the city of Astoria in a particular already covered and provided for by the charter, then it is to be taken as an amendment of the charter. This is not a case where new and additional powers are added by way of supplement, but the change or alteration of an existing power; and I think that it is too plain for argument that it is an amendatory statute.' In that case the act under consideration provided, in substance that `every person obtaining a license to sell spirituous or vinous liquors shall pay into the treasury of the county, city, or town granting such license the sum of three hundred dollars per annum and in the same proportion for a less period; or two hundred dollars per annum, and in the same proportion for a less period, for a license to sell malt liquors only; provided, that no license shall be granted for a less period than six months; andbe it further provided, that no license to sell spirituous malt, or vinous liquors shall be granted by any incorporated city or town for a less sum than that hereinbefore specified,' etc. The effect of this act, if valid was to amend the charter of every city and incorporated town in the state. As the city of Astoria had the power conferred upon it by its charter to license and tax barrooms and drinking shops through its common council, and, in pursuance thereof, had passed an ordinance fixing the sum at two hundred dollars per annum, for which licenses were granted and issued, the effect of the act was to repeal such ordinance in so far as it fixed a different amount for the license than the sum prescribed by the act, and to limit the power of the common council, under the charter, to grant licenses for sums less than those named in the act. While, therefore, the effect of the act was to alter or change to this extent an existing power, it was produced by such act repealing pro tanto, by implication, the section of the charter which conferred it. The act itself was complete — its meaning and scope plain and apparent; nor was there anything on its face to evince an amendatory character. It was an independent act *Page 117 of legislation designed to regulate the sale of liquor in the state. When an act of this character so operates as to modify or change prior acts of legislation, it does not fall with the mischief designed to be remedied by the constitution, although the effect is to alter or amend by implication some prior legislation upon the same subject. To hold otherwise, and give this constitutional provision the construction claimed, would be, in effect, to declare that the legislature is powerless to pass any act changing or altering in any respect the statute law of this state without reenacting and republishing at length every section of all prior statutes, general and special, that might be affected by the new statute. We do not think that such construction is tenable or sustained by the adjudications. Statutes which amend or repeal others by implication are not obnoxious to the constitution. If, therefore, the general act now in question is complete in itself as an independent act of legislation, although it may operate to change or modify some prior law, it does not fall within the constitutional inhibition, and is valid. In form the act is original, and not amendatory. It does not assume to amend or revise any prior general or special act, or section thereof, but by conferring on the county officers the power to assess and collect taxes for the cities and school districts of the state it had an amendatory effect by implication upon such prior legislation as conferred that power on such cities and school districts, and by its last section expressly repeals all laws providing for assessors in, or assessments of property in school districts, incorporated towns, or cities" * * *.
"In view of these considerations, in so far as the case of State v. Wright, is in conflict with the construction we have given to the constitutional provision in question, it must be considered as overruled." Warren v. Crosby, supra.
The doctrine of Warren v. Crosby, supra, as distinguished from that of State v. Wright, supra, has been approved in the following Oregon cases: Idleman v. State, 146 Or. 13, 21 (27 P.2d 305); Columbia River *Page 118 Longview Bridge Co. v. Wellington, 140 Or. 413 (13 P.2d 1075); Patton v. Withycombe, 81 Or. 210 (159 P. 78); State exrel. Harth v. Phupps, 136 Or. 454 (299 P. 1009); State ex rel.Thomas v. Hoss, 143 Or. 41 (21 P.2d 234).
It is said that if the 1935 enactment has the effect to amend in one certain way the prior statute prohibiting nickel-in-the-slot machines and similar devices, such 1935 law is valid, but if it has the effect to amend the earlier statute, in another way, the 1935 law is not valid, but unconstitutional. The test of whether a later statute, which is an independent act and which has the effect of repealing or amending an earlier statute is unconstitutional because the procedure required by section 22 of Article IV of the Constitution was not observed, is not how much of the earlier statute is amended, but only whether on its face the later enactment evinces an amendatory character. If not, and it is complete within itself and its meaning and scope are plain and apparent, it does not fall within the mischief designed to be remedied by said section 22 of Article IV of the Oregon Constitution.
As the late distinguished jurist Mr. Chief Justice LORD said:
"To hold otherwise, and give this constitutional provision the construction claimed, would be, in effect, to declare that the legislature is powerless to pass any act changing or altering in any respect the statute law of this state without reenacting and republishing at length every section of all prior statutes, general and special that might be affected by the new statute. We do not think that such construction is tenable or sustained by the adjudications." Warren v. Crosby, supra.
In the opinion of the writer, if the machine in question is not a lottery, and by the failure of the information *Page 119 herein to charge that it is a lottery, we must assume for the purposes of this case that it is not, the city of Independence had the authority under chapter 369, Oregon Laws 1935, to issue a license for its operation. It appears that such a license was issued and operating a pinball machine thereunder cannot constitute a violation of an anti-non-lottery slot machine statute thus amended, suspended or superseded by implication.
In the opinion of the writer the demurrer to the information in the instant case was properly sustained.
It is stated that the legislature could not authorize a municipality to license or permit the commission of crimes within the boundaries of such municipality. The writer has not found a case holding to that effect in a jurisdiction wherein the constitutional provisions were the same as those of the Oregon Constitution.
On the contrary an early Texas case holds that the legislature was not prohibited from granting such authority to a municipality: Davis v. State, 2 Tex. App. 425. The Texas case just cited follows the case of State v. Clark, 54 Mo. 17 (14 Am. Rep. 471), which was followed by State v. Vic De Bar,58 Mo. 395.
After the decision in Davis v. State, supra, the constitution of Texas was amended. When the decision was rendered, the Texas Constitution as to the right to suspend laws was practically the same as the Oregon Constitution. The amendment changed the constitutional provision so that a law could not be suspended except by the legislature. The later Texas cases hold that since that amendment was adopted the legislature could not delegate its authority to suspend a law, and hence the doctrine of Davis v.State, supra, could not be followed. *Page 120
As an instance of the authority of the legislature to enact a law licensing an occupation declared by the statute to be a crime, we have a case from Tennessee: State v. Duncan, 16 Lea (Tenn.) 79. The effect of such a license is to suspend the general law during the term of the license.
It must be borne in mind that in Oregon the suspension of the operation of a law may be accomplished by the authority of the legislature: Sec. 22, Art. I, Const. of Oregon, Vol. 1, Oregon Code 1930, p. 82; Martin v. O.R. N. Co., 58 Or. 198 (113 P. 16).
There is neither space nor reason for citing all the authorities announcing the rule that a purported license is void when issued by a municipality to pursue a vocation prohibited by the general laws of the state. All those coming to the attention of the writer are easily distinguishable from the instant case.
A license was issued in Tennessee to sell cigarettes. The sale of cigarettes was prohibited by the criminal law. The statute authorizing the license limited its effect to the selling of cigarettes "when not sold in violation of criminal law". The court held that plainly there was no intention on the part of the legislature to license sales in contravention of the criminal law: Blaufield v. State, 103 Tenn. 593 (53 S.W. 1090).
Another case cited to this point is State v. Lindsay,34 Ark. 372. The constitution of Arkansas provides: "No municipal corporation shall be authorized to pass any laws contrary to the general laws of the state." Oregon has no such constitutional provision.
In Alabama we find the same state of the record: Hewlett v.Camp, 115 Ala. 499 (22 So. 137). The constitution of Alabama declares that the general assembly has no power to authorize a municipality to pass laws *Page 121 inconsistent with the general laws of the state: Sec. 50, Art. IV, Const. of Alabama.
Loisseau v. State, 114 Ala. 34 (22 So. 138, 62 Am. St. Rep. 84), cites Hewlett v. Camp, supra, and invokes the constitutional provision prohibiting the legislature from authorizing lotteries for any purpose: Sec. 26, Art. IV, Const. of Alabama. Roach v. Ephren, 82 Fla. 523 (90 So. 609), is a case wherein the license ordinance was declared to be an arbitrary and unreasonable imposition of tax by ordinance. This question is not presented in the instant case.
The writer dissents. *Page 122