The daily morning Astorian. [volume] (Astoria, Oregon) 1883-1899, 1893-04-15
A Legal Opinion
State Law Repealed,

The following Is a copy of the opin-
{, ion of Justice Cleveland on the gam
bling cases argued before him on Mon
day. last The opinion was written at
the request of several members of the
bar, including Deputy District Attor-
ney Curtis:
Gentlemen:-As per your request, to-
gether with that of the deputy district
attorney, l hereby give my opinion up
on the question presented, to wit: Has
the State of Oregon jurisdiction over
the crime of gambling within the linn
Its of the City of Astoria?"
In the year 1876 the legislature of the
State of Oregon passed an act making
gambling a misdemeanor. In the year
1893 the legislature of the State Of Ore
gon granted to THE City of Astoria in
Its charter the power license, tax, reg
ulate and restrain gambling and gam
bling houses. The first question to be
considered is: under Article A. Section
20, of the Constitution OF Oregon, can
an act of the legislature be repealed
by implication? In other states under
a constitution similar to our own,
and by the supreme court of our state
interpreting our constitution we find
qsD That a law can be repealed by i'm
plication. (2nd,) What where a subse-
quent statute is repugnant to a prior
one, it operates as a REPEAL of the first
so far as they conflict Statutes which
repeal by implication are not obnox-
ious to Section % Article 4 of the Con-
stitution. Fifth. Oregon. page 1922
Where two statutes that are in con-
fiict are enacted by the legislature up
on the same general subject, the last
enactment furnishes the rule of action |
and repeals the prior act by implica-
tion so far as they conflict. 18th Ore
gon, page 275) See also Sedgwick on
the Constitution, etc, pages 1O4 and |
10S, Dillon on Municipal Corporations,
American and English Encyclopedias,
volume 8, page 1884, and volume Is,
page 676; End Oregon, page 1876; 3rd Ore
gon, 2S2; 9th oregon, page 62 In the
14th American Reports page All, In the
State of Missouri under a statute which
made the keeping OF brothel misde-
meanor. The municipal charter subse-
quently authorized the city to regulate
or suppress the same. One Kate Clarke
was arrested for violation of the stat.
ute Her defense was that she had re-
ceived a license under the city ordi-
nance OF st. Louis. The court Of GRIM
nal corruption held the defense un-
availing because the ordinance was not
valid. Defendant appealed to the SUI
preme court. In the opinion the
court says: ''The legislature deemed 1t
advisable to throw upon the author
ties of the city the responsibility Of del
,iding what legislation would best pro.
note the morals and health of the city,
ind therefore, virtually said to them:
You are more competant to decide this
natter which concerns you so nearly,
han we are. We therefore authorize
rou to enforce the general laws Of the
Jtate on this subject and suppress
hese houses, or regulate them as you
nay think best" Our state legislature
las gone further and said you can IL
ense, tax. regulate and restrain. In
he case Of the State VS.. Binder, 3S Mo-,
81, the Legislature authorized the City {
4 st. Louis to allow beer saloons TO ]
,eep open on Sunday. although 1t was
by statute. The court re- {
'arded this as special exemption OF
he law, and, so far as that city was
oncerned. necessarily repeal Of the
'eneral law. 1t appears that full power I
nd authority is given to the City OF |
Astoria through its city council to leg
slate ON this subject Of gambling. in the
ity charter. In my opinion the State
+ Oregon has no Jurisdiction within
he limits OF the cityyo Astoria over
he offense charged against the de-
endants. The power and authority
tven to the City Of Astoria through
ts charter repeals pro tanto the state
aw. A, A. CLEVELAND. II