The silver messenger. (Challis, Idaho) 1890-1912, 1899-11-07
LAW SUSTAINED.
Supreme Court Holds the Antf-Gamb-
ling Act Is Valid.

The supreme court has handed
down a decision by Justice Quar-
les affirming the constitutionality
of the anti-gambling law, though
the section providing for the de-
struction of the paraphernalia is
not finally passed upon.
The case in which this decision
is rendered is that of the state
VS.. Horace B. Mulkey, which or
iginated at Grangeville. Mulkey
was arrested May II, 1899, and
taken before the probate judge
on a charge of gambling. He
was convicted and sentenced to
pay fine of 5000. The case was
appealed to the district court and
Judge Steele, before whom it was
heard without a jury, found Null
key guilty and imposed the same
fine. An appeal was then taken
to the supreme court and it was
argued at the recent Lewiston
term.
This decision indirectly over
turns the opinion of Judge May
hew in the Wooley case, it being
held that section 6313 R. S. fixes
the maximum punishment under
an act with such penalty provis-
ions as those of the anti -gamb-
ling law.
The supreme courts opinion
follows
Quarles, J.
The appellant was charged
with the offense of gambling, by
criminal complaint. in the pro-
bate court of Idaho county. was
tried and convicted, whereupon
he appealed to the district court,
was again tried and convicted,
and from the judgement Of con-
viction in said district court, he
has appealed to this court.
The errors assigned by appel
liant are as follows
'1-That the act under the
provisions whereof this action is
prosecuted, entitled "An act to
prohibit gambling and to provide
for the punishment thereof and
for other purposes" approved
Feb. 6, 1899, is unconstitutional
and void as to sections 4, 5, 6, z
and 8 thereof for that the subject
of said act as set out in the title
thereof is not embraced in the
title of said bill.
"2-That the said act as en-
crossed is different from said act
as printed by order of the house
of representatives and no report
ed printed amendment shows any
change before passing the house
of representatives.
"3-That sections 1 and 9 of
said act require 10 maximum
punishment.
"4-That section 4 of said act
violates section Is, article L, of
the constitution of the state OF
Idaho, which declares that no
person shall be deprived of prop
erty without the process of law.
"5-That section 5 of said act
is unconstitutional in this that it
is in conflict with section II, OF
article 1, of the constitution of
the state of Idaho, which pro
vides as follows The right OF
the people to be secure in their
persons, houses, papers and eff
fects against unreasonable scar
ches and seizures shall not be
violated, and no warrant shall
issue without probable cause
shown by affidavit particularly
describing the place to be search,
ed and the person or thing to be
seized
"6-That section Z Of said act
act is unconstitutional in this
that it is in conflict with section
Is, article 1, of the constitution
of the state of Idaho.
"7-That the facts stated in
the said complaint do not consti
tute a public offense.
"S-That the said act was not
passed by the legislature of the
state of Idaho, as provided and
required bp the constitution OF
the state of Idaho"
The act in question, known as
the Anti Gambling Act, us founC
at pages $50 and 800, session
laws, 1899. The record before
US does not contain any of the
evidence introduced at the trial,
except a duly certified transcript
of the house and senate journals
relating to the passage of said
act by the Legislature. The rec
ord before us shows that the de
fendant was convicted upon 1;
specific charge of conducting {
game played with cards, to-wit
a game of ssfaro.n - Tt does no