The facts in the information setting forth the commission of the crime charged are identical with those in the information in the companion case of State v. Coats, designated by the parties as the lottery case, this day decided, with the exception that in that case the defendant was charged with the crime of setting up and promoting a lottery for money, while in this instance he is charged with a violation of the nickel-in-the-slot machine statute; and with the further exception that in the instant case the information also states that "the operation of said game is licensed by ordinance of the city of Independence, a duly incorporated municipal corporation in Polk county, Oregon." The defendant's demurrer to the information was sustained by the circuit court.
It is the contention of the defendant (1) that the information does not charge a violation of § 14-746, Oregon Code 1930, which prohibits the conducting and maintaining of nickel-in-the-slot machines wherein any element of chance is involved and the same are played for money or other thing of value; and (2) that if it be held that § 14-746, supra, is sufficiently broad to include a machine or device such as described in the *Page 105 information herein, then the inhibition contained in that statute as to operation and maintenance of nickel-in-the-slot machines has no application to nickel-in-the-slot machines of the kind known as pinball games, for the reason that such a machine in this instance has been licensed by the city of Independence, pursuant to chapter 369, Oregon Laws 1935.
In the companion case of State v. Coats it is my opinion that the machine or device which the defendant is charged with unlawfully conducting, maintaining and using is a nickel-in-the-slot machine within the meaning and prohibition of § 14-746, supra. In support of his second contention the defendant argues that chapter 369, supra, has the effect of amending § 14-746, supra, or of suspending its operation, in those instances in which the games referred to in chapter 369 have been licensed pursuant to the provisions of said chapter.
Section 14-746, supra, is part of an act of 1901 entitled: "An act to prohibit the maintaining, conducting, operating, playing or using nickel-in-the-slot machines or other devices of like character wherein there enters any element of chance." Section 1 of the 1901 act is now codified as § 14-746, Oregon Code 1930, and refers to nickel-in-the-slot machines or other devices of like character wherein there enters any element of chance. It contemplates that in order to constitute the crime therein prohibited the machine or device referred to must be played for something of value, and in addition there must be present an element of chance in obtaining or failing to obtain something representative of value in return for the coin used to operate the machine or device.
The title of chapter 369, supra, is as follows: "An act to authorize municipal corporations and counties to license, limit, regulate and tax or prohibit certain *Page 106 games involving an element of skill." The act consists of one section, which is thus worded: "That municipal corporations and counties be and they hereby are empowered to license, limit, regulate, impose a privilege tax or charge upon or prohibit pin ball games, dart games and other games of like character involving an element of skill." It is urged by the defendant that the machine which he is charged with unlawfully conducting, maintaining and using is a pinball game within the meaning of chapter 369, supra, and that, since the city of Independence has licensed the operation of said machine, the inhibition contained in § 14-746 is temporarily removed or suspended, so far as the licensed machine is concerned.
What was intended to be accomplished by chapter 369 is not clearly apparent from the title or the body of the act. It purports to confer upon counties and municipalities not only the right to license pin ball games, dart games and other games of like character involving an element of skill, but also purports to confer upon counties and municipal corporations the right to limit, regulate, impose a privilege tax or charge upon, or prohibit such games. If the licensing of such games by a city (and this would also apply if done by a county) removes the games from the inhibition of § 14-746, supra, then if the city should undertake to limit such games or regulate their use in any way or impose a privilege tax or charge upon them, the doing of any of those acts would as effectively repeal or nullify the prohibition contained in § 14-746 as would the affirmative act of licensing such machines. All that the city would have to do would be to provide, for example, that these machines be limited in number or that their use be restricted to certain districts in the city; or the city could even impose a privilege tax upon each and *Page 107 every machine without requiring that the same be licensed. For it is not reasonable to assume that the legislature was conferring upon cities and counties the power to tax the same if their use and operation were prohibited by law.
The 1935 enactment refers to pinball games, dart games and other games of like character involving an element of skill. It makes no specific mention of machines or devices of the kind which § 14-746 forbids to be maintained, operated or used, nor could anyone by reading the title of the act or the act itself find therein any intimation of such a reference. No one could be expected in studying the act to know that the operation of the games therein mentioned, or of some of them, was prohibited by a criminal statute of the state of Oregon. Anyone reading the title of the act and the act itself would assume that the enactment was complete in itself, not amendatory or revisory of any existing statute.
Article IV, § 22, of the constitution of this state reads as follows: "No act shall ever be revised or amended by mere reference to its title, but the act revised or section amended shall be set forth and published at full length." In Martin v.Gilliam County, 89 Or. 394 (173 P. 938), Mr. Chief Justice McBRIDE, after setting out the foregoing section and calling attention to the fact that the statute there under consideration did not comply with that section of the constitution, quoted with approval from Cooley on Constitutional Limitations, 5th Ed., 182, as follows:
"The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effects, and the public, from the difficulty in making the necessary examination and comparison, *Page 108 failed to become apprised of the changes made in the laws."
The opinion thus continues:
"This act does not come within the spirit of the cases which very guardedly and reluctantly uphold repeals by implication. Here there is no attempt to enact a new and independent statute upon the same subject as the act of 1913, supra, but an attempt to insert into it, and by reference to it, certain provisions enlarging its scope without setting forth the statute as it would appear after being so revised. If it can be done in this instance there is no limit to the extent to which statutes can be revised or amended without setting forth the amended statute at full length, and the constitutional provision above quoted would, therefore, be rendered nugatory."
Beginning with the case of Warren v. Crosby, 24 Or. 558 (34 P. 661), and consistently adhering thereto in a long line of decisions, this court has held that if an act is in itself complete and perfect, original in form and exhibiting on its face what the law is to be, its meaning and scope plain and apparent, and not amendatory or revisory in its character, such legislation is valid and does not come within the constitutional prohibition above quoted, although it may in effect change or modify some other law on the same subject.
In attempting to arrive at the intention of the legislature in enacting chapter 369, Oregon Laws 1935, one of the three following interpretations must be adopted: (1) The legislature intended to remove from the ban of § 14-746, and any other statute which might prohibit them, the games referred to in the 1935 act and confer upon counties and cities of the state of Oregon the regulation, licensing, taxing and prohibiting of games of the character contemplated by the 1935 act. If such had been the intention of the legislature, the 1935 act, although *Page 109 it amends by implication § 14-746 and any other provisions of the criminal code in conflict with itself, does not violate § 22 of article IV, supra, by failing to incorporate in its entirety the law or laws to be amended: Warren v. Crosby, supra. By adopting that interpretation, such games as are mentioned in the 1935 act would be subject entirely to the action taken by counties and cities, and § 14-746 would no longer have any application to them. No one connected with this case, however, has advanced any such theory, and we do not believe that this intention was in the minds of the lawmakers.
The second interpretation is that which is relied upon by the defendant, namely, that the effect of § 14-746 on games included within the 1935 enactment is suspended in any county or city which licenses such games, attempts to regulate them or imposes a tax upon them. Counsel for defendant seem to prefer to call it a suspension of the operation of § 14-746 in so far as it affects pinball games, rather than an amendment of that law. Regardless of the terminology employed, the result would be the same. If this interpretation were adopted, then § 14-746 would in effect be amended and would, so far as the games referred to in chapter 369 are concerned, become a licensing statute; that is, the law would prohibit the operation of such games unless they were licensed, limited, regulated or a privilege tax imposed upon them by the county or city in which they were being conducted or maintained. In other words, in every case in which the district attorney would seek to enforce the provisions of § 14-746,supra, in connection with games mentioned in chapter 369, it would be necessary for him to ascertain whether any regulatory action had been taken by the city or county in which *Page 110 such games were being played. That view of the effect of chapter 369 would render the 1935 enactment unconstitutional as not complying with the provisions of sections of article IV, supra, in that the 1935 act would not be complete in itself, while failing to set forth and publish at full length the section sought to be amended or revised, to wit, § 14-746, supra:Board of Education v. Moses, 51 Neb. 288 (70 N.W. 946);Copland v. Pirie, 26 Wash. 441 (67 P. 227, 90 Am. St. Rep. 769); State v. Guiney, 55 Kan. 532 (40 P. 926); Gaston v.Thompson, 89 Or. 412, 420 (174 P. 717).
The third and last interpretation possible to be placed on the 1935 enactment is that there was no intention on the part of the legislature in referring, in that enactment, to pinball games and other games of like character involving the element of skill, to include within that term nickel-in-the-slot machines or similar devices involving the element of chance and played for something of value. If that was the intention of the legislature, then there is not entailed here the question of whether chapter 369 is or is not an amendment of § 14-746.
In 59 C.J. at page 857, § 434, it is stated that:
"Ordinarily, for an amendment of a pre-existing law to be effective, the amendment must be express. It has been very generally stated that amendments of statutes by implication are not favored and will not be upheld in doubtful cases. Ordinarily, the legislature's enactment of a law will not be held to have changed a statute that it did not have under consideration at the time of enacting such law; and implied amendments cannot arise merely out of supposed legislative intent in no way expressed, however necessary or proper it may seem to be. An amendment by implication can occur only where the terms of a later statute are so repugnant *Page 111 to an earlier statute that they cannot stand together. If, however, the statutes are so plainly repugnant that they cannot stand together, the old statute is regarded as amended by the new."
The terms of chapter 369, Oregon Laws 1935, are not so repugnant to those of § 14-746, Oregon Code 1930, that both statutes cannot stand together. It is by no means apparent, from a consideration of the wording of chapter 369, that the legislature intended that if a county or city should license or limit or regulate or impose a privilege tax or charge upon pinball games involving any element of chance, such act on the part of the city or county would remove from the prohibitory effect of § 14-746 a nickel-in-the-slot machine or other similar device involving any element of chance and played or operated for something of value, in other words, a mechanical gambling device.
In Keeney v. State, 54 Ga. App. 239 (187 S.E. 592), the defendant was charged with carrying on a lottery by the operation of a machine or device contrary to a statute of Georgia. His defense was that the machine or device which he was charged with operating contrary to law had, under a state statute, been taxed, and that therefore its operation was lawful. The court, in disposing of that contention, pointed out that the machine and its operation as set forth in the accusation constituted a lottery, and further stated:
"Therefore, in order that the defendant be immune from the provisions of the above section for the operation of such machines, it must be said that the general assembly by the general tax act of 1935, by implication, repealed so much of that section which prohibited the operation of such machines. Repeals by implication are not favored by the law. Central of Georgia Ry. Co. v. Leonard, 49 Ga. App. 689, 698 (176 S.E. 137), and cit." *Page 112
After calling attention to a decision of the supreme court of Georgia in another case, the opinion continues as follows:
"However, we do not think that case controlling authority here; for we do not think the language of the act places a tax upon a machine which is operated in the manner set out in the indictment. In State v. Doon, R.M. Charlt. 1, it is said: `The use of a faro table for the purpose of gambling, that is to say, for the purpose of winning and losing money, is not rendered lawful by the tax imposed on the instrument. The instrument so taxed, may be lawfully used for innocent purposes, as in the case of a billard table which is similarly taxed.' The tax imposed upon the game or device is for the purpose of raising revenue. When such game or device so licensed is used in a manner which constitutes it a lottery, the fact that its operation is licensed will not be construed to mean that it was intended to allow it to be operated as a lottery in violation of the criminal statutes of this state."
The proper and reasonable interpretation to be placed on chapter 369, Oregon Laws 1935, is that it in nowise, directly or by implication, effects a repeal or amendment of § 14-746, Oregon Code 1930.
For the reasons herein stated I concur in the majority opinion to the effect that the demurrer should have been overruled and that the judgment of the circuit court should be reversed.