The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1890-10-26
They MUST STAND TRIAL
The Demurrers ia the Cases Of the
Indicted Gamblers Are
.Overruled.
Judge Hunt Says the Sunday Law
Of 1867 still Holds
Good.
In Event Of Conviction the Matter Will BE
Taken to the Supreme Court
1T Once.

Judge Hunt, in the district court. yester-
day overruled the demurrers to the indict-
ments in the cases Of John n. Hardwick,
Louis d. Matheson, w. w. Woods and
Henry Albertson. These are what are more
familiarly known as the gambling cases. y
The parties were all indicted several weeks
ago on the charge of violating the Sunday
Law BY keeping open their gambling houses
on the sabbath. The everything of the de-
uurrers means that the indicted parties
must stand trial. Their cases, il they
should be convicted, will be appealed to the
supreme court at once and final decision
had AZ to the constitutionality Of the law.
The demurrers were based on three
grounds. The first was that the Sunday
law ia void and in violation of the provis.
ions Of sections three and four Of the con-
stitvtion. These sections protect all per-
sons in the right Of obtaining their safety
and happiness in all lawful ways" and
guarantees liberty Of conscience, etc. The
second ground was that the indictment was
void, as being GLASS or special legislation,
point, upon which the defendants relied
principally. was that the Sunday law had
been repealed by implication by tho last
license act of the last territorial legislature;
and that it had been repealed as to Helena
by the provision of the city charter confer
gambling, no act Of the legislature reRulat-
ing the matter having been sinc< passed.
The Sunday law under which the indict-
monts were found was passed and approved
on Dec. 10, 1867.
Upon the first ground Of demurrer the
defendants made no argument, and Judge
Hunt says, II take it, it is 90 we'll settled
that laws preventing gambling on Sunday
are not an interference with the happiness
Of PEOPLE, or their freedom or rights, that
the proposition 10 beyond discussion" On
the second point about II being class legis-
tion the Judge says: 1T is enough to know
that this Law was passed twenty two years
before the adoption Of the constitution;
and there is nothing in the latter which in
any way repeats or conflicts with the law,
constitution enforcing all territorial laws
not in conflict with the constitution ITSELF"
The third point was pressed and relied
upon. By an amendment to the city char
ter Of Helena. approved February ~, 1883,
there was granted to the city council the
ling houses etc. 1T is admitted" says
the Judge, that the legislature had the
power to delegate to the CITY the right to
delegate to the city tho right to license,
regulate and tax gambling houses. The
city charter having been granted subse-
quent to the law Of 1867, operated to
repeal the old territorial law. and that 90
far az the city of Helena 10 concerned, the
law is of NO effect. II Defendants position
repealed, for the purposes Of this demurrer,
the city has lawfully granted the defend
ants right to conduct faro game ON Sum
day, and thsre ia no legal inhibition against
them performing the acts confessed; but il
the city charter does not work repeal of
the statute of the territory, it follows that
the demurrer must DO 0verruled, and the
defendants plead to the indictments and
the main issue. i
There Is in the city charter Of Helena
statutes in force at the time Of the adoption
Of tho charter, save those in conflict with
the act Of incorporation, nor was there any
express repeal of the Sunday Law Of
1857, 90 as to exclude its. opera
t lions 81. within ~ , the corporate limits LIZ Of
fore ascertain whether or not there is any
thing in the charter irreconcilable with the
state law. So far as the charter relates to
the exemption Of the general laws of the
state or territory there was no moro neces-
sity for an incorporation in tho city than in
the country; nor does tho incorporation ex-
cluds within its boundaries the operation
Of general laws AZ applicable to the whole
country. This expression to regulate is
used frequently to define the degree of
4OW01 V40t eAo CIby OHy u60 VvQS Vu0 Sud-
ject under its supervision. To regulate
gambling means to control gambling, to
subject gambling to governing laws, to de-
termine and enforce the restrictions and
conditions under which it may be done, and |
the words imply that the act controlled is |
lawful, but certain restrictions are neces-
sary about it. II is true that to regulate |
may not be extended to include prohibition, |
for the authorities hold the very essence Of |
regulation in the existence of something to |
be regulated.
1T is plain in my mind that there is
nothing In the power conferred in the form |
of the language used in the charter Of the |
city OF Helena which repealed the general |
Law Of the territory on the same subject. |
The city can license. tar, and regulate, sub
ject always to the general laws Of the state, |
not repugnant to the power Of the city. |
These laws forbid gambling on Sunday,
and until there 10 clear repeal by implica-
ton. or by express words, the statute Of |
1857 must be upheld, and the power Of
the city to license gambling ON Sunday
must be denied.
II 10 my opinion that gambling license
in Helena y given subject to the statute Of |
1867, and that under It the CITY never has |
attempted to grant and never could Grant |
tho right 10 play faro ON Sunday, and Chat
such license il taken accompanied by Che
that the licensee knows the
law forbidding the games ON that day Of
the week.
'.Tha demurrer must be overruled."