The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1896-02-18
HELD THE TOP HAND
Samuel M. Shortridge Defeats
the Board of Super.
viSorS.
IN THE POKER ORDINANCE
His Demurrer to the Orders Consti.
tutionality Is Sustained by
Judge Low.

Police Judge Charles Low, in learned
opinion, has sustained the demurrer
interposed by Attorney Samual NJ.
Shortridge- last Saturday in behalf
of George Meyers, who was arrested last
week for indulging in game of poker.
The dismissal of this case carries with 1t
the discharge of thirty-three men who
were arrested at the same time as was
George Meyers and in the same place.
Prosecuting Attorney William Madison
represented the people, but failed 10 enter
an argument against the authorities pre-
sented by Attorney Shortridge showing
that the ordinance framed by the Board of
Supervisors was unconstitutional, inso-
much that it conficted with the State law
| by imposing penalty in excess of that
contemplated by the Legislature for viola
| tons of the law against gambling.
Judge Lows decision is clear and con-
else, and incidentally gives his opinion as
to the right of magistrate to shift over to
| another court the res possibility of passing
| judgment in certain cases. 1t reads as fol-
| lows:
| The defendant herein was arrested and is
| charged with violating ordinance of the
| Board of Supervisors OF this City and County,
| entitled order No. 2954, amending order No
| 1887. and commonly known as the poker ordi-
| nance.
| Defendants counsel interposes a demurrer
! to the complaint, the chief ground of which is
| that the ordinance is void because it is not in
| harmony with section $50 of the Penal Code
regulating kindred and more serious offenses
| respecting gambling, which can only be pun
| ished by "a fine not less than 800 nor more
than $500, or by imprisonment in the County
! Jail not exceeding six months, or by boil such
| fine and imprisonment"
| In disposing OF the demurrer 1 shall confine
myself to this point alone, as in my judgment
| it is the most serious objection and decisive of
| the validity OF the ordinance. 1t has been sug-
| gested to the court by those interesting them
| selves in the good government OF the City and
| the suppression of vice in all It's varied forms
| that it would be more satisfactory to the COM
munity to have this ordinance upheld by the
Police Court, and that if it is vice for the rea-
sons stated it should be left to a higher court
| to so declare it. That would be the easiest
course for me TO take, and perhaps more
| Judge has taken an oath to perform
the duties OF his office, than which there are
none higher among men, it is his solemn duty
| TO perform that duty himself to the best OF his
! ability and not leave some other court or Judge
| to perform it for h n. And while l snail al
ways be found ready and anxious to uphold
| the laws, whether statutory or municipal, and
| anxious to do all in my power to enforce those
| laws and regulations, without which there can
| be no safety for life and property, or comfort
and pleasure for the citizens of a large city
like this, shall not on the other hand under
| take TO enforce any law or ordinance that the
highest tribunal in this State has declared TO
| be void, or one which am satisfied is open to
the same objection as those passed upon by
this tribunal. To do otherwise would be mn
| just to the defendant and reflect discreditably
upon my own intelligence and honesty.
| II is unquestionably within the power of the
City to enact ordinances for the good govern
ment OF the place, not contravening the laws
OF the State; but such laws must be in har-
| mony with the State laws. The ordinance in
| question is not only an attempt TO regulate the
| conducting of certain business, to wit, the
saloon business, which calling or pursuit
| comes properly within the police regulations
of city, in order that it may be conducted in
a proper and circumspect manner but it also
undertakes to make that a crime which
until now has not been made q crime in this
! State, namely, the playing of the game of
cards known as the game of poker. 1t was per-
| haps intended only-to punish those who play
| the game for money in saloons and public
places; but the ordinance does not so state.
! II the ordinance is valid one could be fined
$1,000 for playing the game without gambling
| That would hardly be held reasonable con-
| slder1ng the prohibited gambling games, such
/ as faro, roulette, tan, etc, are punishable by
| fine of not less than $500 In the case of ex
| parte All You, our Supreme Court says: 'Mu-
nicipal ordinances must be reasonable and the
penalties prescribed for their violation must
also be reasonable as well as definite. The
maximum limit of the fine or imprisonment
must, however, be reasonable - 1t then
| point out the unreasonableness of the ordi-
nance which fixes the maximum punishment
for visiting house of i'll fame at $1,000, or
six months in the County Jail, while by the
who lives in or about such g house is punished
only by imprison ment in the County Jail not
exceeding ninety. days; and the person who
keeps the house of i'll fame is punishable by q
fine limited to $500, or imprisonment not ex-
ceeding six months, or both.
1t was suggested to me by Mr.. Damron, who
appeared amicus curi8, that the Judge in
this case could impose penalty, in the event
defendant should be found guilty, which
would be consistent with the State law on the
subject OF gambling. In answer quote the
language OF Justice Harrison in the All You
case: "This power to determine the penalties
which shall be incurred for the breach of its
regulations has been conferred upon the City
and must be exercised by its Board of Super
visors, and not left to the discretion OF the
Judge before whom the offense is tried" The
Board of Supervisors must itself fix, within
limits which are reasonable, the penalty to be
incurred for the violation of each offense."
This same view was expressed by the court in
eX parte Solomon, where the ordinance pro-
vided for a fine OF not less than $3.50 nor more
than $1,000, or imprisonment not less than
three months nor more tnan six months or
both such fine and imprisonment for simply
having. in ones possession lottery ticket:
while by sections 800 and 326 of the Penal
Code the graver offenses of conducting the
drawing of a lottery, selling lottery tickets
and kindred offenses were punished by fine
not exceeding $500, or by imprisonment not
exceeding six months, or by both such fine
and imprisonment.
Justice de Haven, who wrote the opinion in
that case, which was concurred in by all the
other Justices, says: ''Such an ordinance is not
IN harmony with the general laws of the
State, and is unreasonable, and void within
the rule announced in ex parte All YOU" !
Counsel did not call this courts attention to
section 1856 of the Penal Code, which makes it 2
a misdemeanor punishable by fine not exceed
ing $500 or Imprisonment not exceeding six
months, or both, for every owne-, lessee or
keeper of any house used in whole or in part as
a saloon or drinking place knowingly to per-
nit any person under. II years of age
20 play at any game OF chance therein. The
ordinance in the case at bar fixes the fine for
this offense at double that amount Under the
rule as laid down by the Supreme Court in the
All You case this ordinance is, in my opinion,
void.
l therefore sustain the demurrer in this case,
and dismiss the same for the reasons stated,