The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1899-12-12
Superior Judge Hart Holds That It Is
Unconstitutional
Discriminate in Favor of One Set Of Persons
and Against Others-Decision in
the Daroux Case.

gagged therein or connected Herewith;
provided, however, that whenever there
are any racing or speed contests at Ag-
ricultura1 Park, in said city, the pro-
visions Of this ordipance shall not apply
to the Enclosure of said park
1t is claimed by counsel for the de-
PENDANT that this ordinance is not only
the exercise of a power not granted by
the charter of the city Of Sacramento,
but is also in contravention of several
provisions of the State and Federal
Constitutions, the grounds of which
may be stated as follows:
First. That the ordinance embraces
two entirely different and distinct sub
jects-the one prohibiting persons from
engaging in selling pools, or book-mak-
ing, and providing a penalty for such
acts; the other prohibiting the leasing
of buildings for the purpose Of allowing
pool-selling to be conducted therein,
and providing a like penalty for the
violation of said Act.
Second. That said ordinance attempts
to legislate upon a subject in a manner
inhibited by the charter.
Third That the ordinance is invalid
because of its being harsh, unreason-
able, unjust and oppressive, and an at
tempt to establish monopoly by pro-
viding that Agricultural Park shall be
excluded from the operation of said Or.
dinance.
Section IA of the charter Of the city of
Sacramento reads as follows: Every
ordinance shall embrace but one sub
ject, which shall be clearly indicated in
the title. In all cases where the sub
ject is not so expressed in the title,
the ordinance shall be void as to the
matter not expressed in the title"
The only provision of the city char
ter from which the Board of Trustees
derives its power to pass ordinances
relating to gaming and gambling and
to disorderiy houses is found in the
tenth subdivision of Section %, which
reads as follows: THE Board of Trus-
tees shall have power to pro-
hibit or suppress all gaming and all
gambling and disorderly houses" Ar
ticle l, of Section n. Of our State Con-
stitution, reads as follows: "*
No citizen, or class of citizens, shall be
granted privileges or immunities which.
upon the same terms. shall not be
granted to all citizens The Four
tenth Amendment of the Federal Con,
stitution, Section 1, provides that No
State shall deny to any per-
son within its Jurisdiction the equal
protection Of the laws"
In reference to the first point made
by the defendant, it is urged by counsel
for the people that two distinct subject
matters are not, as a matter of fact,
embraced in the legislation involved in
the ordinance; that the purpose of the
ordinance is to regulate pool-selling and
bookmaking, and that the prohibition
against the renting or leasing Of houses
or buildings for the purpose of c0nduet-
ing such business therein, is but an in
cidental feature and aid in the enforce
ment of the general and ultimate object
of the ordinance; but, they say, that
if the opinion Of the court is against
this position, and that the ordinance is
faulty in this respect, and contrary to
the provision Of the charter above
quoted, then the two subjects are sep
arabic, or, in other words, one subject
can be eliminated without destroying
the effect Of the other or rendering it
imperative, and that the court should
take this view of it and uphold that
portion of the ordinance, the provisions
of which are claimed to be violated
here
It is also contended by counsel for
the people that, while the charter of
the city Of Sacramento appears to linn
it the power Of the Board of Trustees
in its legislation upon the subject Of
gaming and gambling prohibition
or suppression thereof. yet the provision
of Section II, of Article IL, of the Con-
stitution, which reads: "Any county
city, town. or township may make and
enforce within its limits all such local,
police, sanitary, and other regulations
as are not in conflict with general
laws" as expounded by the Supreme
Court of this State, confers upon the
Board of Trustees plenary power to
treat the subject under consideration as
it pleases, and, Notwithstanding the ap-
parent limitation upon it's power in
this respect by the charter, the board
may regulate as we'll as prohibit and
suppress it; that, If the contention Of
counsel for the defendant upon this
point were true and could be sustained
it would practically amount to a repeal
of the constitutional provision quoted,
by the provision of the city charter.
1t is further contended by counsel for
the people that the business of gam
. bling, or gaming, being one in which no
citizen has any inherent right to en-
gage. because of its RIGHTEOUSNESS and
tendency to destroy the good morals of
a community, is an act which can be
entirely prohibited under the constitu-
tional provision above mentioned and
in the exercise of the police power Of
the State, and, therefore, legislative
enactment, combining it to particular
locality or committing it's enjoyment to
particular persons, is in no manner Of
| fensive to any constitutional or in
| herent right of any citizen, and. conse-
| quently, valid.
| The questions thus presented will be
| treated seriatim. I propose to discuss
z, as fully and as explicitly as it is in my
| power to do, the several propositions Of
| law in this controversy upon which the
| parties are divided in opinion.
! The police power Of State is one of
| marvellous elasticity. 1t may be said to
| be power that has grown in far
reaching scope with the advancement
! of civilization. It is. as has been sug-
| gested, based upon the important prin-
ciple Salus popuI suprema est lex, and
of it it has been truthfully and aptly
said that cts limits have never been
| defined insofar as the regulation OF
occupations which are useful or may be
useful, but that it has, even in such
cases, always been held to be co-exten-
sive' with the evil arising from such
occupation" As population has become