The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1895-10-22
THELAW FALLSDOWN
Gambling Can Continue Business at
the Old Stand.
THE SUPREME COURT SAYS SO
The Legislature Did Not Regard
Plain Provisions OF the Con-
stltutlon When the Law
Was Passed.
THE SUPREME COURT SAYS SO
Special Dispatch to the Standard.


Helena. Oct. 2l.-The supreme court
to-day decided the anti-gambling law
to be unconstitutional. The question
was passed upon In the case of tAe
State VS.. Donald Mitchell. Mitchell
was arrested in Helena for dealing
faro and was tried before a jury In
Judge Blake's court. Judge Blake in
structed the jury to bring In verdict
OF not guilty. which was done. From
the judgment the state appealed. The
opinion Is by Justice Hunt and Is con-
Cured In by Chief Justice Pemberton
and Justice Dewitt.
After a statement of the case. the
opinion, referring to the bill for an
act to establish a penal code, says:
''rhis printed bill Tor proposed penal
code) had in 1t a chapter 9, headed,
Gaming containing seven sections.
numbered $50 ito 367. inclusive. (penal
code, ,~ds reported for adoption in 1892.
page 5i) These several sections are
substantially like sections 600 to 607.
chapter o. penal code. 1895. or like Sec
tion Of chapter Q. page 1071. penal code,
Sanders edition. as published and in
general use. They prohibited playing
faro or any banking or percentage
games of cards or dice for money or
any representative OF value. This will
be seen by referring to section 900,
quoted above.
ION Jan. %. 1895. in the legislature.
bill No. 35. for an act to es stablish the
penal code was reported back with
certain amendments. Upon the house
journal for Jan. "a. 1881 page 124. we
find that the committee on codes rec
commended the adoption Of the penal
code. with proposed amendments. The
particular amendment affecting gam
bling was to strike out all Of chapter
9, page "a. Of the penal code. consist
Ing of sections S60to 367. both inclu-
sive.' and 1t was recommended that Sec
tion u. Of an act entitled An act to
amend an act entitled an act con-
cerning licenses. approved Sept. IA,
1887. be substituted as section 357, as
follows: Then follow the provisions Of
the act of Sept. IA. 1887. fixing licenses
to be paid by persons keeping houses
or saloons where games for money are
played and imposing upon those who
violate the provisions of the section
the same penalties originally imposed
by the law of 1887.
The committee on codes. in the
same report, also recommend that Sec
tions / to 10. both inclusive. of an act
entitled An act to prohibit certain
gambling games. and fixing penalties
for violation thereof passed at the
10th legislative assembly. and approved
Feb. 20. 1889. be inserted as sections
35S to $50. consecutively. as follows.
Then follow the several sections of the
law of 1889. which counsel designate in
the argument was the Hunt bill Of
1885,
THE provisions of this law prohibit
large number OF specified gambling
games, but expressly did not prevent
or prohibit the licensing and conduct
ing, according to law. of the games
called faro bank and round the table
poker The recommendation of the
committee on codes was adopted by
the legislature. and the penal code
was finally passed. The enrolled bill
contains, as part of chapter S. of title
o. or part 1. of the act adopting the
penal code. sections numbered S57 to
1863, inclusive, appropriately numbered.
and as brought into the bill by the
amendments recommended by the
committee on codes hereinbefore re-
fered to- and adopted on Jan. "a.
I'VE therefore had in the penal code,
as passed by the legislature. no chap
ter under the head OF gambling. 1t
was wholly wiped out and with 1t went
the law which prohibited faro and cer-
tain other gambling games. But the
legislature did not stop there. They
had gone farther. and in their discre-
tion and power they adopted the law
of 1889. and thus expressly authorized
certain games Of cards. including faro,
to be played for money. and prevented
the playing of such others as had been
prohibited before the adoption Of the
codes. In other words. they were not
willing to abolish gambling entirely, so
they rejected the recommendations of
the code commission. and restored the
law to the condition they were In
when the legislature met. In doing so
they saw fit to annex the provisions OF
the reenacted law Of 1889 to chapter s.
and let them follow in regular numerl-
cal order the last section under The
head OF lotteries. Now let US see
whether. by subsequent action Of the
legislature, this express permission Ia
play faro and certain other games EN-.
bodied in the reenacted law of 1889
was revoked by any repeal or othe.
valid act.
ION Feb. 4. 1895, senate bill No. IS
entitled. AN act to amend chapter 9 q
the penal code Of the state of Mon
tana,' was introduced. On FEB. 2s, 1896
this bill became a law. It's title. as an
pears by the enrolled bill. reads as fol
lows: Senate bill No. 4S-An act Z
amend chapter of ,he penal code o
the state OF Montana II then proceed
ed: BE 1t enacted by the Legislative
assembly of the state of Montana
section /, that chapter . of the penn
| code % The state OF Montana be amend
l cd IS fellows: Strike out sections %
| to S59. inclusive and insert In lieu there
! Of the following section $780, Sectio
| $50 Of this senate bill is substantial
the same as printed section eco. cha;
ter .. entitled gaming. page 1071 {
the Sanders ccde. or the same ch apte
same title volume >, Of the Montan
codes. II is somewhat more ample tina
] section $50 originally reported by cod