The record-union., 1893-08-22
AN INVALID CLAUSE.
The Anti-License Section of the Gam
ing Law.
Officials Cannot be Punished for Some
thing the Law Does Not Ad-
NIT Can be Done.

he is going to make strong effort to in
troduce the scheme in Sacramento. He
started the ball rolling at yesterdays ses-
sion of the City Trustees by introducing
an ordinance permitting square" gam
bling games to run provided they pay the
city for the privilege in the shape of a
license. But the ordinance is designed to
shut out the ''brace" or "hogging'
games.
The Mayor will have to go up against
the law in order to carry out his PROPOSE
ton, but he has the backing of the Attor-
ney-General in the matter. Section $50
of the Penal Code provides that every
person who carries on any gambling
game for money is punishable by fine
of not less than 500 nor more than 81 900,
and every person who plays against any
Of the prohibited games is guilty of a
mlSdemeanor. Section 337 declares that
every State, county, city or town officer
or officers, or any other person who shall
exempt anybody from arrest for viola
lion OF Section $50; or who shall issue any
license or give authority 10 any person or
persons to conduct prohibited game, or
any official or officials who shall vote for
the passage OF any ordinance giving
authority to conduct gambling games is
guilty OF felony.
WILL GET MORE ADVICE.
The State law, as will be seen from the
above sections, is decidedly stiff on the
gambling subject. But it appears that
the Attorney-GeneraPs office has issued
an opinion that the law is invalid, and
on this the Mayor intends to proceed.
After the Mayors proposed ordinance
had been read yesterday Trustee Conklin
suggested that they had better not pro-
ceed IN the usual way until they had Sc
cured some more legal advice on the SUBJ
ject.
The Mayor said in reply that this would
be satisfactory, but he wanted the matter
pushed to a head. He was convinced that
gambling would be INDUCED in in spite
OF the law, and he thought the city might
just as well get the benefit. Licenses
from gambling would net the city S25, ,0GO
year, and this was not to be sneezed at.
tie said 1t was impossible to convict vio-
Iators of the present ordinances, and if
the State law was invalid he believed in
having the city make the best OF bad
JoO- be believed that gam bling was a
necessary evil, and the gam blers should
be made to contribute generously toward
the support Of the city government. lie
then read the following letter to the board:
Hon. Il. q. Steiunidfi, Mayor Of SdcJumellfo-
DEAR SIR: wrote an opinion several days
ago holding Section 337 of the Penal Code TO
be invalid, because il attemt is to nreSn,fba a
Ienalty for an impossible crime II has besn
forwarded, so l am informed, t. a member OF
your Board of Trustees. However, if this in
formation is not correct, and you desire a
copy, VIII be pleased to have 1t made and
forwarded to you. OREGON SANDERS,
Second Deputy Attorney General
san Francisco, August 19, 1898.
After some further discussion the mat
ter was referred to the Mayor and the
City Attorney for report, and the mat
ter Will be taken up again next Monday
DEPUTY SANDERS OPINION.
The opinion from the Attorney-Gen-
erals Office, referred to, was rendered bv
Mr.. Harrs deputy, Oregon Sanders, in
response to request by George E. Bates.
the capitalist. The opinion is as follows
Section $50 of the Penal Code, statutes
of 1891, reads: Every person who deals
plays or carries on, opens or causes to
be opened, or who conducts. either as
owner or employe, whether for hire or
not, any game of faro, monte, roulette.
lansquonet, rogue ct noir, rondo, tan fam
tan, Studnorse poker, seven-and-a-half
twenty-one, hokey-pOkey, or any bank
ing or percentage game played with
cards, dice or any device for money
checks, credit or other representative Of
value, and every person who plays or
bets at or against any of said prohibited
games. is guilty of a misdemeanor ana
shall be punishable by a fine not less
than Sl00 nor not more than $500, or bv
Imprisonment in the County Jail not ex-
ceedlng six months, or by both such fine
and imprisonment
Section 337 of the Penal Code reads:
Every State, county, city, city and
county, town or township officer or
other person, who shall ask for, receive
or collect any money or other valuable
consideration, either for his own or the
public use, for and with the understand
ing that he will aid, exempt or otherwise
assist any person from arrest and convic-
ton for a violation OF Section 33O of the
Penal Code; or who shall issue, deliver.
or cause to be given or delivered, to anV
person or persons any license, permit or
other privilege giving or pretending to
give any authority or right to any person
or persons to carry on, conduct, open or
cause to be opened any game or games
which are forbidden or prohibited bv
Section $50 of said code; and any of such
officer or officers who shall vote for the
passage of any ordinance or bylaw Civ
ing, granting, or pretending to give or
grant, to any person or persons any au-
thority or privilege to open, carry on.
conduct, or cause TO be opened, carried
on or conducted, any game or games
prohibited by said Section $50 of the
Penal Code. is guilty of a felony
Section 20 OF the Penal Code reads:
In every crime or public otfense there
must exist union of Joint operation of
act and intent, or criminal negligence,
NOT A CRIME.
at is very plain" says the Deputv At
torney-General, that no crime can he
committed without an act and an intent.
This must be so Independent Of statutes
from the nature. OF things Ii for ex
ample, you intend to kill a man, but ne
glect to do so, you are not guilty of mur-
der. If you kill man accidentally. with
no intent TO kill him, you are not guilty.
of any crime.
Section $50, the law against gambling.
is a law of this State and higher penal. 1t
absolutely prohibits the games therein
mentioned. No one can lawfully carry
on such games or authorize any one else
to carry them on. Any attempt on the
part OF Board of Supervisors or any
other body TO authorize such games
would be null and void. When the law
says thing cannot be done, that thing
never can be done in a legal sense. When
the law says thing cannot be done, any
attempt to do it is, in a legal sense, ut
terly nugatory; or in other words, the
thing attempted to be done is not done:
the attempt Is void. No legal result can
be predicated of an act which cannot be
legally performed. To vary the express
sion, an act which the law says shall
never be performed. in a legal sense never
mas peen performed and never can be per-
formed.
CANNOT BE ENFORCED.
cannot see, therefore, how it is possi-
BILE to enforce Section 3S7. maLzino il a
felony Tor an officer to vote for the pass
age OF an ordinance which he and his as
soSIates nave no power to pass In a le-
gal sense ne never passed such an ordi-
nance, because no such ordinance can be
passed. men Section 3S7 saws it is
!eIony 70 pass an ordinance on that SUBJ
Ject, II means a legal ordinance. because
1S