MR. JUSTICE ANGSTMAN:
Defendant was accused by information of the crime of running and conducting a punch board whereby the players for a consideration might win a two-pound box of candy by chance.
Defendant’s demurrer to the information was sustained. Judgment in favor of defendant dismissing the information was entered and plaintiff has appealed.
The information charges that defendant on April 10, 1953, “did wilfully, unlawfully, wrongfully, knowingly and intentionally keep, permit, run or conduct, or caused to be run or conducted, for money one punch board, such punch board being a device where the player pulls or punches a tab out of a card and pays the amount so indicated under each tab by number up to a maximum amount of 39^ and a minimum of one cent per tab, * * * for the purpose of obtaining a chance to win a two-pound box of chocolate candy, of value unknown, at a certain place of business in the city of East Helena, Montana, to-wit: at the Y. F. 'W'. Club, in the City of East Helena, Montana. ’ ’
The demurrer was on the following three grounds:
1. That the facts do not constitute a public offense;
2. That the information contains matters which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution;
3. “That the defendant has, at all times, been willing, and [506]*506is now willing, to abide by tbe laws of the State of Montana to pay for the operation of punch boards, but the responsible officials of the State of Montana have refused, and still refuse to accept payment of tax or otherwise for the operation of punch boards as provided for by the laws of the State of Montana. ’ ’
The judgment of the court was that the demurrer be sustained in all particulars.
The state contends that the information charges defendant with a violation of our statute defining lotteries, R. C. M. 1947, sec. 94-3001, as construed by this court-in State v. Hahn, 105 Mont. 270, 72 Pac. (2d) 459, and State ex rel. Harrison v. Deniff, 127 Mont. 109, 245 Pac. (2d) 140, and therefore the contention that the information contains facts which constitute a legal justification or excuse and that defendant is willing to pay the tax for the operation of punch boards is not well taken, because it is not competent for the legislature to authorize lotteries in view of Article XIX, see. 2, of our Constitution, and the case of State ex rel. Harrison v. Deniff, supra.
Defendant contends that the ease is not ruled by R. C. M. 1947, sec. 94-3001, relating to lotteries, but is governed by R. C. M. 1947, see. 94-2401, which purports to authorize the use of pull boards or ticket boards upon the payment of a license fee for the disposal of goods constituting the stock in trade of the operator, and that R. C. M. 1947, sec. 94-2403, exempts certain organizations from the provisions of the Act. It is his contention that he is exempted from the licensing feature of section 94-2401 because he runs the V. F. W. Club in East Helena and relies on the case of State ex rel. Replogle v. Joyland Club, 124 Mont. 122, 220 Pac. (2d) 988.
Defendant also relies on Chapter 201, Laws of 1951, R. C. M. 1947, see. 84-5703 et seq., which on its face purports to authorize the use of punch boards as trade stimulators upon the purchase of a use tax stamp. He attempts to escape the ruling in State ex rel. Harrison v. Deniff upon the ground that what this court said in that case was dictum so far as it held R. C. M. [507]*5071947, sees. 84-5701 and 84-5702, unconstitutional because they had already been repealed by the 1951 legislature by Chapter 201. The difficulty with that contention is that sections 84-5701 and 84-5702 had not been repealed at the time the Deniff action arose and at the time the acts relied on in the Deniff case took place and at the time the judgment appealed from was entered. The acts in the Deniff case were alleged to have been committed on January 9, 1951. Judgment was rendered February 28, 1951. Chapter 201, Laws of 1951, which repealed E. C. M. 1947, secs. 84-5701 and 84-5702, was approved March 5, 1951, and because of E. C. M. 1947, sec. 43-507, was not effective until July 1, 1951. Likewise Chapter 201, Laws of 1951, while repealing E. C. M. 1947, secs. 84-5701 and 84-5702, re-enacted many of the repealed provisions and the rule is that the re-enacted provisions continued in force without interruption. It is stated in 50 Am. Jur., Statutes, sec. 576, p. 573, as follows: “The general rule that where a statute is repealed, and all or some of its provisions are at the same time re-enacted, the reenactment neutralizes the repeal, and the provisions of the repealed act which are thus re-enacted continue in force without interruption so that all rights and liabilities which have accrued thereunder are preserved and may be enforced, is applicable to legislation relating to crimes. Hence, where the statute repealed is re-enacted in substantially the same terms by an act which takes effect at the same time as the repealing act, it is continued in uninterrupted operation, and judgment may be rendered upon a conviction under it, though the offense was committed and prosecution commenced before the repeal.” Our statute recognizes this rule. E. C. M. 1947, secs. 43-510 and 43-514.
Defendants in the Deniff case were relying on Chapter 298, Laws of 1947, being E. C. M. 1947, sees. 84-5701 and 84-5702, and the fact that those sections were repealed after defendants performed the acts complained of and after the judgment appealed from was entered, but before the decision by this court, does not render the decision of this court mere dictum. What was said in the Deniff case regarding Chapter 298, Laws of [508]*5081947, has equal application to Chapter 201, Laws of 1951. It is unconstitutional as an attempt to authorize lotteries. Compare also the recent case of State ex rel. Anderson v. Village of Garden City, Idaho, 265 Pac. (2d) 328. Likewise the absence of specifications of error in the Deniff ease, as required by subsections c and d of subdivision 3 of Rule X of this court, does not make the court’s opinion dictum. That rule is simply for the convenience and aid of the court in facilitating the labors of the court. It may be waived by the court in its discretion. That was done in the Deniff case.
In the Deniff case counsel in their brief did raise and argue the points of law discussed in the court’s opinion, but through apparent inadvertence appellants’ counsel omitted to make a formal statement of the specifications of error. The alleged errors however, were raised and discussed in the brief. The omission of specifications in the brief was a mark against the author but does not serve to characterize the court’s opinion as dictum. The points of law there ruled on were involved, argued and discussed in the briefs and carefully considered by the court, and hence were not dictum. Helena Power Transmission Co. v. Spratt, 37 Mont. 60, 94 Pac. 631; Montana Horse Products Co. v. Great Northern R. Co., 91 Mont. 194, 7 Pac. (2d) 919; First National Bank of Kalispell v. Perrine, 97 Mont. 262, 33 Pac. (2d) 997; Bottomly v. Ford, 117 Mont. 160, 157 Pac. (2d) 108.
The ruling in the Deniff case likewise applies to R. C. M. 1947, sec. 94-2401, so far as that statute attempts to authorize pull boards and ticket boards as a means of distributing property by chance for a consideration as here. It is true that in the Deniff case mention was made of the existence of a “widespread pestilence” which is not shown to exist here.
Free access — add to your briefcase to read the full text and ask questions with AI
MR. JUSTICE ANGSTMAN:
Defendant was accused by information of the crime of running and conducting a punch board whereby the players for a consideration might win a two-pound box of candy by chance.
Defendant’s demurrer to the information was sustained. Judgment in favor of defendant dismissing the information was entered and plaintiff has appealed.
The information charges that defendant on April 10, 1953, “did wilfully, unlawfully, wrongfully, knowingly and intentionally keep, permit, run or conduct, or caused to be run or conducted, for money one punch board, such punch board being a device where the player pulls or punches a tab out of a card and pays the amount so indicated under each tab by number up to a maximum amount of 39^ and a minimum of one cent per tab, * * * for the purpose of obtaining a chance to win a two-pound box of chocolate candy, of value unknown, at a certain place of business in the city of East Helena, Montana, to-wit: at the Y. F. 'W'. Club, in the City of East Helena, Montana. ’ ’
The demurrer was on the following three grounds:
1. That the facts do not constitute a public offense;
2. That the information contains matters which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution;
3. “That the defendant has, at all times, been willing, and [506]*506is now willing, to abide by tbe laws of the State of Montana to pay for the operation of punch boards, but the responsible officials of the State of Montana have refused, and still refuse to accept payment of tax or otherwise for the operation of punch boards as provided for by the laws of the State of Montana. ’ ’
The judgment of the court was that the demurrer be sustained in all particulars.
The state contends that the information charges defendant with a violation of our statute defining lotteries, R. C. M. 1947, sec. 94-3001, as construed by this court-in State v. Hahn, 105 Mont. 270, 72 Pac. (2d) 459, and State ex rel. Harrison v. Deniff, 127 Mont. 109, 245 Pac. (2d) 140, and therefore the contention that the information contains facts which constitute a legal justification or excuse and that defendant is willing to pay the tax for the operation of punch boards is not well taken, because it is not competent for the legislature to authorize lotteries in view of Article XIX, see. 2, of our Constitution, and the case of State ex rel. Harrison v. Deniff, supra.
Defendant contends that the ease is not ruled by R. C. M. 1947, sec. 94-3001, relating to lotteries, but is governed by R. C. M. 1947, see. 94-2401, which purports to authorize the use of pull boards or ticket boards upon the payment of a license fee for the disposal of goods constituting the stock in trade of the operator, and that R. C. M. 1947, sec. 94-2403, exempts certain organizations from the provisions of the Act. It is his contention that he is exempted from the licensing feature of section 94-2401 because he runs the V. F. W. Club in East Helena and relies on the case of State ex rel. Replogle v. Joyland Club, 124 Mont. 122, 220 Pac. (2d) 988.
Defendant also relies on Chapter 201, Laws of 1951, R. C. M. 1947, see. 84-5703 et seq., which on its face purports to authorize the use of punch boards as trade stimulators upon the purchase of a use tax stamp. He attempts to escape the ruling in State ex rel. Harrison v. Deniff upon the ground that what this court said in that case was dictum so far as it held R. C. M. [507]*5071947, sees. 84-5701 and 84-5702, unconstitutional because they had already been repealed by the 1951 legislature by Chapter 201. The difficulty with that contention is that sections 84-5701 and 84-5702 had not been repealed at the time the Deniff action arose and at the time the acts relied on in the Deniff case took place and at the time the judgment appealed from was entered. The acts in the Deniff case were alleged to have been committed on January 9, 1951. Judgment was rendered February 28, 1951. Chapter 201, Laws of 1951, which repealed E. C. M. 1947, secs. 84-5701 and 84-5702, was approved March 5, 1951, and because of E. C. M. 1947, sec. 43-507, was not effective until July 1, 1951. Likewise Chapter 201, Laws of 1951, while repealing E. C. M. 1947, secs. 84-5701 and 84-5702, re-enacted many of the repealed provisions and the rule is that the re-enacted provisions continued in force without interruption. It is stated in 50 Am. Jur., Statutes, sec. 576, p. 573, as follows: “The general rule that where a statute is repealed, and all or some of its provisions are at the same time re-enacted, the reenactment neutralizes the repeal, and the provisions of the repealed act which are thus re-enacted continue in force without interruption so that all rights and liabilities which have accrued thereunder are preserved and may be enforced, is applicable to legislation relating to crimes. Hence, where the statute repealed is re-enacted in substantially the same terms by an act which takes effect at the same time as the repealing act, it is continued in uninterrupted operation, and judgment may be rendered upon a conviction under it, though the offense was committed and prosecution commenced before the repeal.” Our statute recognizes this rule. E. C. M. 1947, secs. 43-510 and 43-514.
Defendants in the Deniff case were relying on Chapter 298, Laws of 1947, being E. C. M. 1947, sees. 84-5701 and 84-5702, and the fact that those sections were repealed after defendants performed the acts complained of and after the judgment appealed from was entered, but before the decision by this court, does not render the decision of this court mere dictum. What was said in the Deniff case regarding Chapter 298, Laws of [508]*5081947, has equal application to Chapter 201, Laws of 1951. It is unconstitutional as an attempt to authorize lotteries. Compare also the recent case of State ex rel. Anderson v. Village of Garden City, Idaho, 265 Pac. (2d) 328. Likewise the absence of specifications of error in the Deniff ease, as required by subsections c and d of subdivision 3 of Rule X of this court, does not make the court’s opinion dictum. That rule is simply for the convenience and aid of the court in facilitating the labors of the court. It may be waived by the court in its discretion. That was done in the Deniff case.
In the Deniff case counsel in their brief did raise and argue the points of law discussed in the court’s opinion, but through apparent inadvertence appellants’ counsel omitted to make a formal statement of the specifications of error. The alleged errors however, were raised and discussed in the brief. The omission of specifications in the brief was a mark against the author but does not serve to characterize the court’s opinion as dictum. The points of law there ruled on were involved, argued and discussed in the briefs and carefully considered by the court, and hence were not dictum. Helena Power Transmission Co. v. Spratt, 37 Mont. 60, 94 Pac. 631; Montana Horse Products Co. v. Great Northern R. Co., 91 Mont. 194, 7 Pac. (2d) 919; First National Bank of Kalispell v. Perrine, 97 Mont. 262, 33 Pac. (2d) 997; Bottomly v. Ford, 117 Mont. 160, 157 Pac. (2d) 108.
The ruling in the Deniff case likewise applies to R. C. M. 1947, sec. 94-2401, so far as that statute attempts to authorize pull boards and ticket boards as a means of distributing property by chance for a consideration as here. It is true that in the Deniff case mention was made of the existence of a “widespread pestilence” which is not shown to exist here. So far as that feature of the case is concerned, the better view is to condemn the lottery as such regardless of its widespread distribution or pestilence as did the Idaho Supreme Court in State ex rel. Anderson v. Village of Garden City, supra, and the other courts in the cases therein cited. Hence defendant’s position would [509]*509be no better were the information expressly based on section 94-2401, supra.
We agree, however, with the contention of the state that the information is sufficient to state an offense under R. C. M. 1947, sec. 94-3001, when the information is considered in the light of the requirements of R. C. M. 1947, sec. 94-6412, and R. C. M. 1947, see. 94-6403.
In 27 Am. Jur., Indictments & Informations, sec. 99, p. 659, it is said: “An indictment which properly charges an offense under a statute is good, although the offense charged is not the one which the prosecuting attorney had in mind when he drew the indictment * * To the same effect is Capone v. United States, 7 Cir., 51 F. (2d) 609, 76 A. L. R. 1534.
The court erred in sustaining the demurrer to the information.
Finally defendant contends that the State of Montana through the attorney general has no right to question the constitutionality of the statute here in question. He relies principally upon the Florida case of State ex rel. Atlantic Coast Line R. Co. v. State Board of Equalizers, 84 Fla. 592, 94 So. 681, 30 A. L. R. 362. We are not impressed with the reasoning employed in the opinion in that case. It is, of course, fundamental that only those who are adversely affected by a statute will be heard to question its validity. That rule is well established. Chovanak v. Matthews, 120 Mont. 520, 188 Pac. (2d) 582, and cases cited therein.
The attorney general is the chief law enforcement officer of the state. He and the several county attorneys represent the state in all criminal prosecutions. The State of Montana is the party questioning the validity of the statute in question here and the attorney general and the county attorney are the attorneys representing the state. This is not a case where the attorney general is declaring an act unconstitutional, but he is the one representing the state in placing the question before the court for determination.
We hold that the state has a sufficient interest in laws relating to crimes and in a statute purporting to authorize lotteries to [510]*510question its validity and that the attorney general and the county attorney are the proper persons to represent the state in such proceedings. Compare State v. Watkins, 176 La. 837, 147 So. 8, and State ex rel. Evans v. Brotherhood of Friends, 41 Wash. (2d) 133, 247 Pac. (2d) 787.
The judgment is reversed and the cause remanded with directions to set aside the order sustaining and to enter an order overruling the demurrer to the information and to further proceed in accordance with the views herein stated.
MR. JUSTICE BOTTOMLY, concurs.