Ex parte Davis

Annotate this Case

Ex parte Davis
1939 OK CR 61
91 P.2d 799
66 Okl.Cr. 271
Decided: 06/14/1939
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Constitutional Law-"Police Power" as Inherent Attribute of State Sovereignty-Legislation for General Welfare. The "police power" is an inherent attribute of state sovereignty, under which the state, within constitutional limitations, may determine what is dangerous and injurious to public order, safety, health, morals and general welfare of society, and to govern men and things, by any legislation appropriate to those ends.

2. Same-Statutes Presumed Constitutional. To justify a court in declaring an act of the Legislature void, it is not enough that the statute goes to the verge of constitutional power. It must appear clearly that it goes beyond the power. In case of doubt the law must be sustained.

3. Same. All acts of the Legislature are presumed to be valid, and the courts should not declare an act to be unconstitutional unless it is clearly so. It there is doubt, the express will of the Legislature should be sustained.

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4. Same-Reasons for Unconstitutionality of Act. A law that is unconstitutional is so because it is either an assumption of power not legislative in its nature, or because it to inconsistent with some provision of the state or federal constitutions.

5. Statutes-Construction of Unambiguous Statutes. Where the language of a statute is unambiguous and its meaning is evident, it must be held to mean what it plainly expresses, and no room is left for the application of rules of construction and interpretation.

6. Criminal Law-Sufficient Certainty of Penal Statute. A penal statute is sufficiently certain, although it may use general terms, if the offense is so defined as to convey to a person of ordinary intelligence what acts are prohibited.

7. Constitutional Law-Statutes-Act Relating to Slot Machines and Punch Boards Held not Violative of Constitutional Provisions. The Act, House Bill No. 125, approved April 28, 1939, Sess. Laws 1939, ch. 15, art. 3, 21 Okla. St. Ann. § 964 et seq., "making it unlawful to possess, sell, solicit the sale or take orders for the sale of, or lease, or rent, or set up, operate or permit others to set up or operate, any slot machine or punch board, and prohibiting the running of slot machines and punch boards, and providing penalties," is not void under section 7 of art. 2 of our state Constitution, Okla. St. Ann., in that it amounts to the taking of property without due process of law; nor is it in violation of section 57 of art. 5, which provides that: "Every act of the Legislature shall embrace but one subject which shall clearly be expressed in its title." Nor is the act inimical to the Fourteenth Amendment to the federal Constitution, U. S. C. A., which provides that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life or liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law."

8. Criminal Law-Act Relating to Slot Machines and Punch Boards Held not Void for Uncertainty. The provisions of House Bill No. 125, Sess. Laws 1939, ch. 15, art. 5, are not void for uncertainty and the terms of the statute are sufficiently definite and certain to inform those who are subject

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to it what acts on their part will render them liable to its penalties.

9. Habeas Corpus-Duty of Criminal Court of Appeals to Inquire Into Illegality of Commitment. When a person is held in custody under a void order of commitment, or is imprisoned without due process of law under the sentence of any court of the state, it is not only within the authority of this court, but it is its duty upon habeas corpus, to inquire into the illegality of the commitment when the matter is properly brought before it by petition.

10. Same-Facts Stated in Petition not Warranting Petitioner's Discharge. Where the facts stated in a petition for a writ of habeas corpus will not warrant petitioner's discharge, the writ will be denied.

Habeas corpus proceeding by W. H. Davis. Writ of habeas corpus denied.

The petition herein, which was duly verified, omitting title, is as follows:

"Your petitioner, W. H. Davis, represents and states to this Honorable Court that he is restrained of his liberty and is unlawfully imprisoned and restrained in the County Jail of Tulsa County, at Tulsa, Oklahoma, by A. Garland Marrs, Sheriff of Tulsa County.

"2. The cause of said restraint according to the best knowledge and belief of your petitioner is: That on the 15th day of May, 1939, your petitioner set up one certain marble, pin and ball machine for the purpose of permitting persons to use same and play thereon for amusement purposes only; that the character and description of said marble, pin and ball machine is a table, or board, having holes, pockets or cups into which such balls may drop or become lodged and have arches, pins and springs to control, deflect or impede the direction and speed of the balls put into motion by the player, but your petitioner alleges that said restraint is illegal and unauthorized in that said marble, pin and ball machine is an innocent amusement device and as such is regularly licensed by ordinance in the city of Tulsa, Oklahoma, and villages, towns and other cities throughout the state of Oklahoma and that a table of like character, description and mechanism

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has been judicially determined by the district court of Tulsa county, Oklahoma, in cause No. 64737, to be an innocent and harmless amusement device.

"3. That said marble, pin and ball machine aforesaid, is operated mechanically, automatically and manually and may be played by inserting a coin in a slot whereupon five balls, or marbles, are directed into a chute for playing, by the player, by lifting the marbles, or balls, upon a chute that are played on the surface by plunger operated by the player; upon being played on such board the balls, or marbles, strike pins, springs or slots this creating a score which is shown upon the board being a part of the device, no prizes are automatically offered, or paid in any sum, neither is there any cash, merchandise, checks or other things of value given, offered or obtained for the player of same, but the player plays said device for his own temporary amusement and no inducement is held out to him whereby he may obtain or lose anything of value on account of playing said machine, as aforesaid.

"4. The said A. Garland Marrs, as sheriff of Tulsa county, Oklahoma, asserts that he was authorized and directed and under duty to seize said marble, pin and ball machines and to destroy the same by and under the provision of House Bill No. 125, of the Seventeenth Legislature of the state of Oklahoma.

"5. Your petitioner was summarily arrested by said A. Garland Marrs, as sheriff of Tulsa county, and his deputies, without a warrant, or other authority of law and was immediately taken to the county jail in Tulsa county and there incarcerated without a warrant or commitment so to do and shortly after his said incarceration he was charged in the common pleas court of Tulsa county by an information filed therein with having violated section 7, of House Bill No. 125, of the Seventeenth Legislature of the state of Oklahoma, a copy of which said information is filed herewith marked Exhibit 'A' and made a part hereof the same as if written out in full and copied herein at length.

"That thereafter, and on the said 15th day of May, 1939, your petitioner was, by the said A. Garland Marrs, sheriff of Tulsa county, and his deputies taken before the Honorable Wm. N. Randolph, one of the judges of the

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common pleas court, and there arraigned upon said information and at his arraignment he interposed a demurrer to said information objecting to the jurisdiction of the court and to the statute under which said charge was filed as unconstitutional and void; a copy of the proceedings in the common pleas court is filed herewith marked Exhibit 'B'; which demurrer was by the court overruled and the petitioner was then committed to the county jail, a copy of which commitment is hereto attached marked Exhibit 'C' and made a part of this petition the same as if written out in full and copied herein at length.

"6. Petitioner alleges that House Bill No 125, of the Seventeenth Legislature of the state of Oklahoma, and under which act he is unlawfully charged and restrained of his liberty, is unconstitutional, void and of no force and effect for the following reasons, to wit:

"1. That said act is indefinite and uncertain to the end that it is impossible to ascertain the legislative intent and its application is so general in its terms so as to render it capable of an arbitrary and capricious application.

"2. That said act is repugnant to and violates section 7 of article 2, of the Constitution of the state of Oklahoma, in that it amounts to the taking of property without the due process of law.

"3. That said act is repugnant to and in violation of section 19, of article 2, of the Constitution of the state of Oklahoma in that it denies the right of a trial by jury.

"4. That the same is contrary to and in violation of section 57, of article 5 of the Constitution of the state of Oklahoma in that the subject of said act is not clearly expressed in its title and embraces more than one subject.

"5. That the same sets up arbitrary and unreasonable presumptions in that in effect charges peace officers with notice of violation of the gambling laws of the state of Oklahoma, irrespective of whether or not said peace officer had actual knowledge or notice thereof.

"6. Said act is further void and of no force and effect for the reason that the same was not properly enrolled upon the Journal of the Senate and House of Representatives

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of the state of Oklahoma and no roll call had thereon in the manner as by law provided.

"7. A true and correct copy of said House Bill No. 125, is hereto attached, marked Exhibit 'C' and made a part hereof, the same as if written out in full and copied herein at length.

"Wherefore, your petitioner prays this Honorable Court to grant a writ of habeas corpus and that he be discharged without delay from such unlawful imprisonment.

"W. H. Davis,

"By his Attorneys: Coffey & Coffey."

Exhibit "A," copy of the information attached thereto, omitting verification, is as follows:

"In the Court of Common Pleas Within and for Tulsa County, State of Oklahoma.

"The State of Oklahoma, Plaintiff, vs. W. H. Davis, Defendant

"Information for Setting Up and Operating a Slot Machine "No. 35380

"Be It Remembered:

"That Dixie Gilmer, the duly qualified and acting county attorney for Tulsa county, Oklahoma, who prosecutes in the name and by authority of the state of Oklahoma, comes now into court of common pleas within and for Tulsa county, state of Oklahoma, on this the 15th day of May, A. D., 1939, and gives the court to understand and be informed that on the 15th day of May, A. D., 1939, and prior to the filing of this information in Tulsa county, state of Oklahoma, W. H. Davis, in said county, and within the jurisdiction of this court, did unlawfully, willfully and knowingly set up, operate, conduct and permitted to be set up, operated and conducted one certain slot machine, to wit: A Cenco Marble Board at 526 South Main street in the city of Tulsa, same being a place of business for the purpose of having and allowing same to be played by others for money, property, currency, checks,

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chips, tokens, credits and other representatives of value in violation of section 7 of House Bill 125 of the 17th Legislature of the state of Oklahoma, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.

"Dixie Gilmer, County Attorney,

"By T. S. Wallace, Assistant."

Exhibit "B," omitting formal parts, is as follows:

"5 15 Defendant arraigned. Represented by attorney W. L. Coffey at time of and before arraignment, defendant demurs to information, demurrer overruled no argument being presented defendant excepts, defendant arraigned enters plea of not guilty jury trial demanded, case set for trial on next criminal jury, jury docket of common pleas court, May 29th, 1939, 9 A. M. Bond $500.00 commitment issued, (Rand)

"5 16 Certifying copy of commitment of arraignment,

"5 16 Certifying copy of Appearance docket."

Exhibit "C," a copy of commitment, omitting formal parts, is as follows:

"The State of Oklahoma

"To the Sheriff of Tulsa County, Oklahoma, or any other officer authorized by law to serve process; Greeting:

"An order having been this day made by the undersigned Judge of the Court of Common Pleas of Tulsa County, Oklahoma, that W. H. Davis, above named Defendant be held for preliminary examination upon a charge of setting up and operating a slot machine and that said defendant be admitted to bail in the amount of $500.00 Dollars, for appearance in said Court on the 29 day of May, 1939.

"Therefore, you are commanded to receive into your custody, and detain said Defendant until he is legally discharged.

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"Dated at Tulsa, Oklahoma, this 15 day of May 1939.

"Wm. N. Randolph,

"Justice of the Court of Common Pleas.

"[Seal.]"

Exhibit "D." The statute in question, House Bill No. 125, approved by the Governor of the State of Oklahoma on the 28th day of April, 1939, omitting title, reads in part as follows:

"Be It Enacted By The People Of the State Of Oklahoma.

"Section 1. That, for the purpose of this Act, 'slot machine' is defined to be:

"First: Any machine, instrument, mechanism or device that operates or may be operated or played mechanically, electrically, automatically or manually, and which can be played or operated by any person by inserting in any manner into said machine, instrument, mechanism or device, a coin, chip, token, check, credit, money, representative of value, or a thing of value, and by which play or operation such person will stand to win or lose, whether by skill or chance, or by both, a thing of value; and

"Second: Any machine, instrument, mechanism or device that operates or may be played or operated mechanically, electrically, automatically, or manually, and which can be played or operated by any person by paying to or depositing with any person, or by depositing with or in any cache, receptacle, slot, or place a coin, chip, token, check, credit, money, representative of value, or a thing of value, and by which play or operation such person will stand to win or lose, whether by skill or chance, or by both, a thing of value.

"Section 2. That for the purpose of this act, 'a thing of value' is defined to be any money, coin, currency, check, chip, token, credit, property, tangible or intangible, amusement or any representative of value or any other thing, tangible or intangible, calculated or intended to serve as an inducement for anyone to operate or play any slot machine or punch board.

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"Section 3. That for the purposes of this act, 'punch board' is defined to be any card, board, substance or thing upon or in which is placed or concealed in any manner any number, figure, name, design, character, symbol, picture, substance or thing which may be drawn, uncovered, exposed or removed therefrom by any person paying a thing of value, which number, figure, name, design, character, symbol, picture, substance or any other thing, when drawn, uncovered, exposed or removed therefrom, will stand the person drawing, uncovering, exposing or removing the same to win or lose a thing of value.

"Section 4. That any word or words used in this act in the singular number shall include the plural, and the plural the singular.

"Section 5. That for the purposes of this act, 'person' is defined to include any person, partnership, association, company, stock company, corporation, receiver, trustee, organization or club.

"Section 6. That it shall be unlawful for any person to have in his possession any slot machine or punch board, or sell or solicit the sale, or take orders for the sale of, or lease or rent any slot machine or punch board in this state, and any person violating the provisions of this section shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than Fifty ($50.00) Dollars nor more than One Hundred Fifty ($150.00) Dollars or by imprisonment in the county jail for a term of not more than sixty (60) days, or by both such fine and imprisonment.

"Section 7. Any person who sets up, operates or conducts, or who permits to be set up, operated or conducted, in or about any place of business, or in or about any place, whether as owner, employee or agent, any slot machine for the purpose of having or allowing same to be played by others for money, property, tangible or intangible, coin, currency, check, chip, token, credit, amusement or any representative of value or a thing of value, shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine or not less than Fifty ($50.00) Dollars nor more than One Hundred Fifty ($150.00) Dollars, or by imprisonment in the county jail for a term of not more than sixty (60) days, or both such fine and imprisonment.

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"Section 8. Any person who sets up, operates, exposes, conducts, displays or plays, or who permits to be set up, operated, exposed, conducted, displayed or played, in or about any place or in or about any place of business, whether as owner, employee or agent, any punch board for the purpose of having or allowing the same to be played by others for money, property, tangible or intangible, coin, currency, check, chip, token, credit, amusement or any representative of value or a thing of value, shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than Fifty ($50.00) Dollars nor more than One Hundred ($100.00) Dollars, or by imprisonment in the county jail for a term of not more than thirty (30) days, or by both such fine and imprisonment.

"Section 9. That every slot machine and every punch board as defined in this act, is hereby declared to be per se a gambling device, and each is hereby declared to be a public nuisance, and the same may be abated in manner as provided for the abatement of a public nuisance under chapter 58, Oklahoma Statutes 1931."

Section 10 prescribes the duties of officers and mode and manner of seizure and confiscation of slot machines and punch boards, and the duty of the county attorney of the county in which the seizure was made, and the procedure in the district court of the county, in relation to such seizures.

Section 11 prescribes the duty of every sheriff, constable, and police officer to diligently do and perform the acts required under this act, and makes it the duty of every county attorney to diligently do and perform the acts required of him under this act.

Section 12 provides that the fact that any such machine is set up, operated or exposed in a public place for any length of time sufficient to put a reasonably efficient officer upon inquiry and notice, shall be received along with other evidence in proving that the sheriff and county attorney of the county where the same occurred had knowledge of the same.

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Section 13 provides the punishment and penalty for said officers, who shall knowingly allow a violation of this act, or the open and notorious violation of the same, as set out in section 12, shall be guilty of willful neglect of duty and fixing the penalty and punishment for the same.

Section 14 provides:

"In case any section, clause, sentence, paragraph or part of this act shall for any reason be adjudged by any court of competent or final jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder of this act, but shall be confined in its operation to the section, clause, sentence, paragraph or part thereof directly involved in the controversy in which said judgment shall have been rendered."

"Section 15. That all acts and parts of acts in conflict herewith are hereby repealed."

Section 16 is the emergency clause.

Petition for the writ filed in this court on May 16th, and presented to Judge Barefoot, who refused the writ, but granted a rule to show cause why the writ should not issue, returnable June 7th.

On June 2nd "Stipulation of Fact" was filed, signed by the county attorney and counsel for petitioner. The Attorney General refused to agree to or approve this stipulation.

At the hearing of this application on the return day, a demurrer and motion to dismiss was filed on the part of the respondent as follows:

"Comes now the respondent herein and demurs to the petition herein filed for the following reason, to wit:

"That said petition fails to state facts sufficient to constitute a cause of action and right to the relief prayed for.

"That as shown by the petition and stipulation herein filed defendant stands charged in the common pleas court of Tulsa county with violation of the slot machine and

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gambling laws of the State; that he has not been denied a trial or release on bond.

"That petitioner undertakes to attack the constitutionality of House Bill No. 125 enacted by the Seventeenth Legislature, but at the same time pleads that said act does not apply to him or to the machine, with the possession and operation of which he is charged.

"Wherefore, respondent moves that the petition of said W. H. Davis herein filed, be dismissed.

On the same day the case was orally argued by W. L. Coffey and A. Langley Coffey, for petitioner, and Sam H. Lattimore, Assistant Attorney General, for respondent.

Upon the conclusion of the arguments the case was submitted.

Coffey & Coffey, of Tulsa, for petitioner.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., and M. S. Simms, Asst. Co. Atty., both of Tulsa, for respondent.

DOYLE, P. J. This application for a writ of habeas corpus is brought to secure the release of petitioner being held in custody of the sheriff of Tulsa county, at Tulsa, where he is incarcerated and confined in the county jail by virtue of a commitment based upon an information pending and undetermined in the common pleas court of Tulsa county, wherein the petitioner is charged with having violated section 7 of House Bill No. 125, of the Seventeenth Legislature, ch. 15, art. 3, page 10, Session Laws 1939, 21 Okla. St. Ann. § 970.

Upon the return day the case was orally argued and submitted upon the petition and the demurrer thereto.

This application involves the validity under the State and Federal Constitutions of House Bill No. 125, ch. 15, art. 3, page 8, et seq., Sess. Laws 1939, 21 Okla. St. Ann. § 964 et seq., being the statute under which the information in the court below is based.

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Counsel for petitioner in their brief say:

"We have asked this court to consider the constitutionality of this act from several standpoints, both as to its form and application. We believe that it is unconstitutional because on its face it is so indefinite and uncertain as to its terms as to make it impossible to ascertain the legislative intent, and because it is so general in its terms as to render it capable of an arbitrary and capricious application; it is repugnant to and violates section 7 of article 2 of the Constitution of the state of Oklahoma in that it amounts to the taking of property without due process of law.

"It is contrary to and in violation of section 57 of article 5 of the Constitution of the state of Oklahoma in that the subject of said act is not clearly expressed in its title and embraces more than one subject.

"With regards to the petitioner's machine, we want to stress that it is entirely free of the elements of chance and hazard. As heretofore stated the player pays a consideration for the privilege of playing, or entertaining himself at a game which appeals to the competitive spirit which is possessed by us all."

No brief was filed on the part of respondent.

The information upon which the commitment issued charges that on the 15th day of May, 1939, W. H. Davis: "did unlawfully, willfully and knowingly set up, operate, conduct and permitted to be set up, operated and conducted one certain slot machine, to wit: A Cenco Marble Board at 526 South Main street in the city of Tulsa, same being a place of business for the purpose for having and allowing same to be played by others for money, property, currency, checks, chips, tokens, credits and other representatives of value in violation of Section 7 of House Bill 125 of the 17th Legislature of the State of Oklahoma, contrary to" etc.

Section 7 of the act in question reads as follows:

"Section 7. Any person who sets up, operates or conducts, or who permits to be set up, operated or conducted,

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in or about any place of business, or in or about any place, whether as owner, employee or agent, any slot machine for the purpose of having or allowing same to be played by others for money, property, tangible or intangible, coin, currency, check, chip, token, credit, amusement or any representative of value or a thing of value, shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than Fifty ($50.00) Dollars nor more than One Hundred Fifty ($150.00) Dollars, or by imprisonment in the county jail for a term of not more than sixty (60) days, or by both such fine and imprisonment."

No ambiguity patent or latent appears to us in this section of the statute. The language is explicit; its meaning unmistakable.

In behalf of respondent the point is made that where imprisonment is under the judgment of a court of competent jurisdiction, such judgment cannot be attacked collaterally, or the proceedings inquired into in a habeas corpus proceeding, and this court is precluded from inquiring into the facts alleged in the petition by the provisions of the habeas corpus act, chapter 3, art. 4, sec. 693, 12 Okla. St. Ann. § 1342, which reads:

"No court or judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following: * * *

"Fourth. Upon a warrant or commitment issued from the district court, or any other court of competent jurisdiction, upon an indictment or information."

Section 10 of the Bill of Rights, Okla. St. Ann. Const., provides:

"The privilege of the writ of habeas corpus shall never be suspended by the authorities of this state."

It is well settled, by numerous decisions of this and other courts, that the writ of habeas corpus is a writ of right, and cannot be abrogated or its efficiency impaired

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by legislative action, and under the constitutional guaranty, the cases within the relief afforded by the writ at common law cannot be placed beyond its reach and remedial action by statute. A court of competent jurisdiction is one having power and authority of law at the time of acting to do the particular act, and jurisdiction of the person and of the subject-matter is not alone conclusive, but the jurisdiction of the court to render the particular judgment or issue the process is a proper subject of inquiry; and the proceedings of the committing court will be examined so far as necessary to determine the question of jurisdiction. If there was no legal power to render the judgment, or issue the process, there was no court of competent jurisdiction, and consequently no judgment or process. All is coram. non judice, and void. Ex parte Sullivan, 10 Okla. Cr. 465, 138 P. 815, Ann. Cas. 1916A, 719.

Where personal liberty is concerned, the judgment and process of a court affecting it is not so conclusive but that the question of its authority to imprison the party may be reviewed on habeas corpus by a court or judge having power to award the writ. Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759.

It is elementary law that in habeas corpus proceedings jurisdictional questions only are reviewable or to be considered. The writ cannot be invoked for the purpose of reviewing acts of courts of record, where they acted within their jurisdiction, under a constitutional law, any error committed can only be reviewed on an appeal, and it cannot be used as a substitute for an appeal.

Before the writ is available as a means of release from imprisonment, it must appear that the court issuing the process has acted without jurisdiction.

In this case the validity of the commitment is assailed on the ground that the act of the Legislature upon which the information was based is unconstitutional. If the position is well taken, it affects the jurisdiction of the whole

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proceedings. An unconstitutional law is void, and is no law. An offense created by it is not a crime, and a charge based thereon cannot be a legal cause of imprisonment.

We are reminded by counsel for petitioner that it is the solemn duty of the courts in cases before them to guard the constitutional rights of the citizen against arbitrary power; that is unquestionably true. This court is bound to sustain the fundamental law, the state Constitution, according to its true intent and meaning. But it is equally true that legislative enactments should be enforced by the courts as embodying the will of the people, unless they are plainly inconsistent with that instrument.

In McCord v. State, 2 Okla. Cr. 214, 101 P. 280, we said:

"To justify a court in declaring an act of the Legislature void, it is not enough that the statute goes to the verge of constitutional power. It must appear clearly that it goes beyond the power. In case of doubt, the law must be sustained."

In State v. Coyle, 7 Okla. Cr. 50, 122 P. 243, we said:

"Every legislative act is presumed to be constitutional, and the courts should not declare an act to be unconstitutional unless it is clearly so. If there is doubt, the expressed will of the Legislature should be sustained."

In Ex parte Hunnicutt, 7 Okla. Cr. 213, 123 P. 179, it is said:

"Every presumption must be indulged in favor of the constitutionality of an act of the Legislature; and courts will not declare any law unconstitutional, unless they find that it is irreconcilable with the Constitution."

In Patterson v. State, 7 Okla. Cr. 497, 124 P. 942, we said:

"The courts cannot annul or pronounce void any act of the Legislature upon any other ground than that of repugnancy to the Constitution of the United States or of the state."

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In re Ambler, 11 Okla. Cr. 449, 148 P. 1061, it is said:

"If the statute upon which a judgment is based is valid, and the court has jurisdiction of the person and subject-matter, the writ should be denied."

In Leach v. State, 17 Okla. Cr. 322, 188 P. 118, it is said:

"It is well established that no enactment of the Legislature should be held to be in contravention of the Constitution, unless its unconstitutionality is made to appear beyond any reasonable doubt."

In State v. Barnett, 60 Okla. Cr. 355, 69 P.2d 77, 78, we said:

"Nothing but a clear violation of the Constitution, federal or state, will justify the judicial department in pronouncing an act of the legislative department unconstitutional and void."

It is contended that this act is in violation of section 57, art. 5, of the Constitution, providing that:

"Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title."

This provision of the Constitution has been considered and construed by the appellate courts of this state in numerous cases, and the established rule is that the title to an act may be general and need not specify every clause in the statute; it being sufficient if the various provisions are referable to and cognate to the subject expressed. State v. Wheatley, 20 Okla. Cr. 28, 200 P. 1004, and cases cited. Smith v. State, 47 Okla. Cr. 184, 287 P. 835.

In Jackson v. State, 22 Okla. Cr. 338, 211 P. 1066, this court held:

"It is not necessary for the title to an act of the Legislature to embrace an abstract of its contents. It is sufficient if the title contains a reasonable intimation of the matters under legislative consideration."

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The opinion cites numerous cases supporting this rule from states having constitutional provisions substantially identical with this section of the Constitution of this state.

It is to be observed that under the police power, every state has the right to determine what is dangerous and injurious to the public health, public morals, and the public welfare, of its inhabitants. However, the police power is not to be invoked where the subject to which it is directed has no substantial relation to those objects, or for a matter which by law no person ought to be punished.

It is generally held that a slot machine, which in return for a coin deposited therein, dispenses merchandise of the value of the coin, accompanied at occasional and uncertain intervals, by a varying amount of money, tradechecks, or coupons, is a gambling instrument. State v. Johnson, 15 Okla. Cr. 460, 177 P. 926; Nelson v. State, 37 Okla. Cr. 90, 256 P. 939.

It is also generally held that the name given a machine does not determine whether it comes under the statutory classification of a slot machine, but that is determined by the manner and result of its operation. Mackay v. State, 65 Okla. Cr. 149, 83 P.2d 611.

In 12 R.C.L. p. 729, it is said:

"There are so many kinds of slot machines, differing so much in construction and operation and used for such varied purposes, that it is difficult to lay down any general rule fixing their status with reference to the question of gaming or gambling. A slot machine, it has been said, is not per se a gambling device, since it may be used or played upon for innocent purposes, and the courts cannot therefore take judicial notice that every slot machine is a gambling device, as the use to which it is put must determine its character. In general, however, any slot machine, regardless of its description and although it is a mere automaton which keeps and runs itself, will be deemed to be an unlawful gambling device, where the one who plays the machine stands to win or lose money,

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trade checks, or prizes, by a chance, or more broadly, where there is an element of chance in its operation. And where the return to the player is dependent on an element of chance the generally prevailing opinion seems to be that a slot machine is a gambling device even though the player is assured of his money's worth of some commodity, and hence cannot lose." Ferguson v. State, 178 Ind. 568, 99 N.E. 806, 42 L.R.A., N.S., 720, Ann. Cas. 1915C 172; Lang v. Merwin, 99 Me. 486, 59 A. 1021, 105 Am. St. Rep. 293; Painter v. State, 163 Tenn. 627, 45 S.W.2d 46; 81 A.L.R. 173, see Annotation 177.

In the case of Harvie v. Heise, 150 S. C. 277, 148 S.E. 66, 69, it is said:

" 'In no field of reprehensible endeavor has the ingenuity of man been more exerted than in the invention of devices to comply with the letter but to do violence to the spirit and thwart the beneficent objects and purposes of the laws designed to suppress the vice of gambling. Be it said to the credit of the expounders of the law that such fruits of inventive genius have been allowed by the courts to accomplish no greater result than that of demonstrating the inaccuracy and insufficiency of some of the old definitions of gambling that were made before the advent of the era of greatly expanded, diversified and cunning mechanical inventions.' [City of ] Moberly v. Deskin, 169 Mo. App. 672, 155 S.W. 842.

"In addition to what has been said, even if it should be conceded that it is the sincere purpose of the owner, that the checks be played only for the amusement of the operator, we cannot say that they have no value whatever; for it must be that the amusement or entertainment furnished the player is worth something to him if it constitutes the inducement for him to operate the machine. It is idle to argue that he would spend his money and time in operating the machine for the purpose of obtaining something that is of no value to him-unless we impute to him the lack of that common sense which he is presumed to have. Further, especially in view of the high cost of amusement or entertainment and the immense sums paid for it by people of all classes, it is reasonable to suppose that the owners of the machines, if they expect the amusement or entertainment furnished to operate as an inducement

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to play, must consider it of some value to the operator."

And see Com. v. Bowman, 267 Ky. 602, 102 S.W.2d 382.

In the case of Colbert v. Superior Confection Co., 154 Okla. 28, 6 P.2d 791, Syllabus No. 2, is as follows:

"Nickel slot machine delivering package of mint of reasonable value of five cents and sometimes, in addition, checks usable for further playing of machine for amusement only, held prohibited."

In the body of the opinion it is said:

"It is immaterial whether or not the playing of the slot machines amounts to gambling. The act of playing the machines is prohibited, without regard to whether or not the same amounts to gambling.

"The right of the state to legislate against this character of machine, without regard to whether or not the machines are kept or operated for gambling purposes, has been sustained by other courts. See 27 Corpus Juris 989; 12 R.C.L. 730, and cases therein cited." Citing and quoting from the opinion in State v. Woodman, 26 Mont. 348, 67 P. 1118, 1120, and Nelson v. State, 37 Okla. Cr. 90, 256 P. 939.

And concludes as follows:

"If the act in question applied only to things of value, we think that the amusement held out as an inducement is a thing of value sufficient to bring these machines within the plain provisions of the act. We are of the opinion that the act is applicable without regard to the value of the things held out as an inducement to the playing of the machine.

"The trial court was in error in granting an injunction restraining the defendants from enforcing the plain provisions of the act in question, and its judgment is reversed, and the cause is remanded to that court, with directions to dismiss this action."

In the case of Mackay v. State, supra, the previous opinions of the appellate courts of this state, relating to

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slot vending machines as a gambling device, are elaborately reviewed in the opinion of this court, written by Judge Barefoot, and we approve and reaffirm the principles therein set forth.

The foregoing opinions and authorities therein cited set forth the true principles upon which the statute in question must be sustained as a valid law. If the principles enumerated and the conclusions reached are correct, and we think they are, and hereby adopt them, they conclusively refute and fully answer the contention of petitioner that the statute under consideration in this case is unconstitutional and void.