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the register as candidates in the order of that there is no such position as ordinary their relative excellence, as determined by cle

clerk known to the cliarter. The term "orexamination, without reference to priority of dinary clerk" is used by the civil service time of examination." Section 9 of the same commissioners to designate an arbitrary article provides: "The head of the depart- class established by them, from which variinent or office, in which a position classified ous extra clerks allowed to various officers under this article is to be filled, shall notify | and departments must be appointed. A furthe commissioners of that fact, and the com- ther examination of the charter discloses that missioners shall then certify to the appoint- various positions are provided for, which by ing officer the name and address of one or the law of their creation are not continuous more candidates, not exceeding three, stand

or permanent, but are intended by the law ing highest upon the register for the class or

to be for limited periods. Thus, article 11 grade to which the position belongs, but la- provides for the organization of the departborers shall he taken according to their pri- ment of elections, and, after providing for ority of application. *

Section 10 the appointment of a registrar of voters, it of the same article is as follows: "The ap

is, in section 4 thereof, provided as follows: pointing officer shall notify the commission- "The board may appoint such other clerical ers of each position to be filled separately, assistants as may be necessary, at a salary and shall fill such position by the :ppoint- not to exceed one hundred dollars a month ment of one of the persons certified to him each for the time actually employed. The by the commissioners therefor.

Such ap

board shall, by resolution adopted by a mapointment shall be on probation for a period | jority vote of all its members and entered to be fixed by the rules of the commissioners; upon its minutes, designate the service to be but such rules shall not fix such period at rendered by such assistants and the time for exceeding six months. The commissioners

which they shall be employed. The time of may strike off names of candidates from the

employment of such assistants shall not be register after tliey have remained thereon extended except by like resolution of the more than two years. It or before the ex

board, and when a salary shall have been piration of the period of probation, the head

once fixed it shall not be increased. This of the department or office in which a can

section is subject to the provisions of article clidate is employed, may, by and with the

13 of this chapter.” The appointment pleadconsent of the commissioners, discharge him ed in plaintiff's petition was an appointment upon assigning in writing his reason therefor as one of the clerical assistants provided to the commissioners. If he is not then dis

for in the above section. No other positions charged his appointment shall be deemed are provided for in the department of eleccomplete. To prevent the stoppage of pub- tions, except that of registrar. If the law lic business or to meet extraordinary ex- was complierl with the resolution authoriigencies, the head of any department or office zing the employment of plaintiff in the demay, with the approval of the commissioners,

partment of elections limited the time of his make temporary appointments, to remain in employment. When that time expired, it is force not exceeding sixty days, and only until difficult to see why his employment did not regular appointments, under the provisions end. He was not discharged in violation of of this artile, can be maile." The period of any provision of the civil service provisions probation provided for in the above section of the charter, but the term of his employwas fixed by the commissioners at six

ment or office expireul hy the law of its creamonths. Section 12 provides that: "Yo dej- tion. uty, clerk or employé in the classified civil There is no warrant in the charter for the service of the city and county, who shall position that by an appointment to a position have been appointed under said rules, shall in the department of elections plaintiff bebe removed or discharged except for cause, came entitled to hold a similar or any posiupon written charges, and after an opportuni- tion in any other office or department of the ty to be heard in his own defense."

municipal government. On the contrary, it The plaintiff contends that by having been is perfectly apparent that the head of each appointed to a position as ordinary clerk in department may appoint his own subordithe department of elections he becomes such nates and assistants, after requisition by an employé as could only be removed in the the head of such department and certificamanner provided for in the above-quoted sec- tion by the civil service commissioners. tions, and that the action of the civil service I'laintiff pleaded that after his appointcommissioners in placing his name upon ment to the position in the department of the list of eligibles according to the excel- elections, and after his duties therein were lence of his examination, without regard to fully performed and completed, and, as we the priority of the examination, was in viola- must assume, after the expiration of his tion of his rights and of the said provisions term of employment as fixed by the resoluof the charter. To properly interpret the tion authorizing his employment, he performforegoing sections, especially sections 10 ed the duties of ordinary clerk in the departand 12. they must be read in connection with ment of elections, in the office of the tax colother sections of the charter. At the outset leitor, and in the office of the auditor; but of vur examination of the charter we find by the return to the writ it appears that he performed such duties by virtue of separate

(7 Cal. Unrep. 301) appointments following requisitions and cer- Ex parte WILLIAMS. (Civ. 287.) tifications, as required by the civil service

(Court of Appeal, Third District, California. provisions of the charter. As we have al

July 31, 1906.) ready seen, he could not under the charter

1. GAMING-OFFENSES-STATUTES. perform duties in either the office of the tax

It is not a crime, under Pen. Code, $ 330, collector or auditor by virtue of any appoint-making it an offense to operate any banking or ment by the department of elections. There percentage game played with any device for is no such position under the charter as ordi

money, "hecks, credit or other representative

of value," to set up and operate a slot machine nary clerk that may be floated from depart- on which games are played, unless played for ment to department. The charter authorizes money, checks, credits, or other representative the tax collector to appoint one chief deputy,

of value, and, if played for something not in

cluded in these words, it is not a crime. one cashier, and fifteen deputies; "and extra

[Ed. Note.-For cases in point, see Cent. Dig. clerks who shall be paid at the rate of not vol. 27, Gaming, $$ 137, 138.] more than one hundred dollars a month dur

2. SAME - OFFENSES - STATUTES- CONSTRUCIng the time of their employment.” Article TIOX. 4, c. 5, § 1, Charter of San Francisco. This

Pen. Code, $ 330, making it an offense for clearly indicates that the term of employment game played with any device for money, checks,

any one to oporate any banking or percentage of such extra clerk is limited, and not con- credit, or other representative of value, adopted tinuous or permanent. Besides various dep- in 1872, prior to the existence of cigar slot mauties, the auditor “may employ such number

chines, when considered in connection with sec

tion 331, prohibiting the use of any house for of extra clerks during the time their services gambling, prohibited by section 330, and section may be necessary for the lawful discharge 4, providing that the Penal Code is to be conof his official duties, as the board of super

strued according to the fair import of its terms,

does not make it an offense to operate a slot visors may designate. Such extra clerks

machine on which games are played for cigars. shall each receive a salary not to exceed one [Ed. Note.-For cases in point, see Cent. Dig. hundred dollars a month for the time they vol. 24, Gaming, $$ 161, 198.] shall be actually employed.” Article 4, c. 2, $ 2, Charter. Here, again, the positions are

Application by C. C. Williams for a writ of created of limited duration. It was to such

habeas corpus for his discharge from impositions only that plaintiff was appointed.

prisonment on conviction of an alleged crimiThe assessor is also authorized to employ,

nal offense. Petitioner discharged. Transduring four months of each year, 100 clerks

ferred to Supreme Court. See 87 Pac. 568. “who shall each be paid at the rate of not

T. J. Butts, for petitioner. C. H. Pond. more than one hundred dollars a month dur

Dist. Atty., for the People. ing the time of their employment." These various extra clerks were appointed from the class designated as "ordinary clerks" in the BUCKLES, J. The petitioner was engaged classification adopted by the commissioners; in the saloon business, also selling cigars and and, by the method adopted by the commis- tobacco in the city of Petaluma, and had sioners when the term of employment ended,

therein a slot machine used by his customers or the services of such clerk were no longer

in gambling for cigars. The complaint on required, he was treated as no longer an em- which the petitioner was charged, arrested, ployé, and his name was again placed on the

tried, and convicted was as follows: "On register of candidates according to the rela- the 4th day of December, A. D. 1905 tive excellence of his examination, without

did willfully and unlawfully open, carry on, regard to the priority of the examination. and conduct, at his saloon and place of busi

We think this course of action accords ness at 319 Main street, in the city of Petawith the letter and spirit of the civil service luma, Sonoma county, state of California, a provisions of the charter. It makes a work- certain banking game, played by means of able system, Plaintiff has not been discharg- a slot machine, for money, checks, and other ed in violation of any provision of the char

representatives of value, to wit, cigars and ter, or discharged at all. He was employed

tobacco." While the complainť charges “for for a limited term, and upon the expiration money, checks, etc.," there is no pretension of the term of his employment he ceased to

that either money or checks were played. hold office, or to be an employé of the munic

It does appear from the return and record in Ipality. By again placing his name on the the case that the crime charged and intended register of candidates according to the rel- to be charged was using the slot machine for ative excellence of his examination, without

"other representatives of value," and that such regard to the priority of the examination, representatives of value were cigars and tothe conmissioners complied with the charter bacco. The petitioner was sentenced to pay (article 13, & 7), and accorded to plaintiff his a fine of $100, and to be imprisoned until full rights.

such fine be paid, etc. The fine was not The judgment is reversed.

paid, and the petitioner was imprisoned. This

answer to the return made by the sheriff conWe concur: HARRISON, P. J.; COOP- tains the following, 'to wit: “That the slot ER, J.

machine mentioned in said complaint is operated by dropping a nickle or slug in the slot in either penal or otherwise, which forbids the the right-hand side of said machine, and then adoption of any construction that will defeat pressing a lever, and, if the proper combina- the purpose for which the statute was option of cards showed upon the cylinder, the viously intended, and our Code (Pen. Code $ party putting the nickle in the slot was en- 4) provides that all of the provisions of the titled to a certain number of cigars, accord- Penal Code are to be construed according to ing to the combination of cards. If a royal the fair import of their terms, with a view flush was made to show upon the cylinder, to effect its object and to promote justice. the party playing the machine was entitled These rules apply here. If we take into conto 40 cigars; for 4 aces, 15 cigars; for 4 sideration, as the people contend we must, kings, 14 cigars; for 4 queens, 13 cigars, and the fact that the chapter in which section under queens, 10 cigars; full hand, s cigars; 330 is found is headed “Gaming," we are a flush, 6 cigars; for three queens, 3 cigars, furnished no aid, no light by which to arrive and under queens, 2 cigars; and 2 pairs, at the meaning of the words "or other reprejacks up, 2 cigars; and 1 pair, aces, kings, or sentative of value," for there is no pretense queens, 1 cigar; and any other combination that the section contains a prohibition against would not win anything. That said ma- all kinds of gaming, but is limited to the chine was played for cigars, and nothing kinds therein mentioned.

kinds therein mentioned. Courts have no else, and that these facts were established power to legislate, and if the Legislature inand proved at the trial of this case." These tended to simply prohibit banking and perfacts are not controverted, and are set forth centage games where played for money, , with above particularity for the sole purpose checks, credits, and other things similar to of showing that the entire charge made and money, checks, and credits, this court has the crime complained of was running the no power to add a further prohibition, and slot machine, not for money, checks, or cred- say that it will be a crime if such banking its, but for "other representatives of value." or percentage game is for other kinds of The slot machine is a device or thing where property, such as grain, fruit, horses, cattle. the person who plays it must, of necessity, lumber, and all other things of whatever play at a chance game, the owner or operator kind which may have a value. The rule thereof paying when the person who has put seems to be well established in the interprein his nickle wins, and taking the nickle tation of statutes and clauses like the one when there is a loss, and it is thus a bank- under consideration that where general words ing game. People v. Carroll, 80 Cal. 153, 22 follow particular ones, the former are conPac. 129. It is not a crime, under section strued as applicable to persons or things of 330 of the Penal Code, to set up and run the same kind, class or nature. The rule such a device as a slot machine described has been further stated as follows: "Where here, unless played "for money, checks, cred- a statute or other document enumerates severits, or other representatives of value." Il al classes of persons or things, and immeplayed for something not included in these, diately following and classed with such it is not a crime.

enumeration the class embraces 'other' perAs it is here admitted that it was not sons or things, the word 'other' will generally played for either money, checks, or credit, be read as 'other such like,' so that the perbut for cigars, we are therefore called upon sons or things therein comprised may be read to determine what the Legislature intended to as of the same kind, class, or nature, with include within the words,"or other repre- and not of a quality superior to, or different sentative of value." The respondent con- from, those specifically enumerated." 21 Au.. tends they can have but one meaning, and & Eng. Ency. 1012. In New York, where it that anything of value, and therefore includes statute exempted from taxation every buildall kind of property having a value; while ing erected for the use of a college, incorthe petitioner claims they can refer only to porated academy, or other seminary of learnsome similar thing—to money, checks, or ing, it was held, as all those enumerated were credit. If the Legislature was intending to corporations, that the general words "or othprohibit all gambling with banking devices er seminary” required that such institution or by banking games played with cards, dice, should also be an incorporated one in order or any device, it seems to us there would have to have the benefit of the exemption. Chebeen no limitation as now to money, checks, garay v. N. Y., 13 N. Y. 220. In the Illinois or credits, but the statement would have Criminal Code the words "or other instrubeen for anything of value or that represents ment of writing" is held to include only invalue. Gambling such as it is sought to pro- struments of the same kind as those previoushibit by section 330 is carried on almost ex- ly specified; that is, bills, notes, checks, etc., clusively for money, or some obligation or for the payment of money, and not to apply promise which calls for money, and not other to the case of a contract under which it property. The very language of the section was wholly uncertain whether the money precludes any other idea. Then, if this be would ever become payable. Shirk v. People, so, we must keep this in view in trying to 121 Ill. 61, 11 N. E. 888. So in Kentucky, determine to what the words "or other repre- where the statute read: "Section 1. Whosentative of value” were intended to apply. ever with or without compensation, shall set There is a general rule in construing statutes, up, carry on, or conduct, or shall aid and assist in setting up, carrying on, or conducto , in section 330. Neither is it plain that the ing, a keno bank, faro bank, or other ma- | Legislature had in mind any kind of "ropchine or contrivance used in betting whereby erty other than money, the thing most commoney or other things may be won or lost, mon for use in such games, and its repreetc.," the indictment charged that the de- sentative such as checks and demands for the fendant "unlawfully and feloniously set up, payment of money. Neither would it be a carry on, and conduct a machine and contriy. reasonable supposition that in 1872, when ance used in betting, to wit, a game of oontz the act was passed, any banking game would played with dice and upon which money was be set up or carried on in gambling for anywon and lost.” It was held that other ma- thing but money and the instruments reprechine or device must be of the same kind or senting money, and therefore the Legislanature with the keno bank or faro bank, ture could not have had in mind the cigar under the rule above stated. In that case slot machine, and could not have prohibited the evidence showed that the game played its use. The ingenuity of man, however, has was that commonly known as "craps" or devised a banking game in the cigar slot ma"oontz,” in which no machinery or imple-chine by which gambling may be carried on ments are used save two ordinary dice. Com- for property not included within “money, monwealth v. Kammerer (Ky.) 13 S. W. 108. checks, credits or other representatives of Many other cases may be cited which uphold value.” There is nothing in section 330 this rule, but we deem this sufficient. But which prohibits gambling for cigars. It folthe rule is not inflexible, for where it is lows that the petitioner must be discharged. plain from the whole act, document, or sub- The prisoner is discharged. ject-matter that the real intent was different, then such manifest intent, and not the above

CHAUGHLIN, J. I concur. Section 330 rule, prevails. As in the definitions given in of the Penal Code provides that: “Every the Code of degrees of murder: “111 mur- person who deals, plays, or carries on, opens, der which is perpetrated by means of poison,

or causes to be opened, or who conducts eior lying in wait, torture, or by any other

ther as owner or employee, whether for hire kind of willful, deliberate and premeditated

or not, any game of faro, monte, roulette, killing * is murder in the first de

lansquenet, rouge et noir, rondo, tan, fan-tan, gree.” One who administers poison to an- stud horse poker, seven-and-a-half, twentyother with intent to kill, and death results

one, hokey pokey, or any banking or pertherefrom, is at once guilty of murder in the

centage game played with cards or dice or first degree, because the deliberation, premed- any device, for money, checks, credit, or othitation, malice aforethought, and all have er representative of value," is guilty of a heen established. So when the killing fol- misdemeanor. It is clear from the language lows from lying in wait or from torture, of this section that it is a misdemeanor to but there are many other ways than these conduct or carry on a slot machine or any by which murder in the first degree may be other device played for money, checks, or - ommitted. People v. Bealoba, 17 Cal. 389. credits, but we are here called upon to deThe killing may be accomplished by pushing termine whether a person who conducts or one from a high wall or into a deep well, carries on such a device played for cigars or by any means which shows willful, de- and tobacco is likewise guilty of an inliberate, and premeditated

premeditated killing. Such fraction of the law. Such acts as those statute needs no interpretation, for the in- enumerated in this and similar statutes are tent of the lawmaker is seen at once. The crimes only because they are prohibited by betting on elections, on horse racing, and the law, and unless the act charged against the gambling in stocks and in grain are kinds of petitioner is so prohibited, he is entitled to gambling not included within section 330. bis discharge. If it is forbidden by law at The very language of the statute itself shows all, it must be because cigars and tobacco that the gambling which the Legislature was are representatives of value, within the meanattempting to prohibit was that sort of gam- ing of the section quoted. The words "or bling usually carried on at a fixed place of other representative of value" found in the business, where those seeking to play at section must be construed in connection with games of chance could come, and where mon- the preceding language in the same sentence, ey is the thing usually wagered, or its rep- for the word “other” is a correlative and resentative, such as checks or anything which specifying word, meaning "different from is a demand to be paid in money. It would that which has been specified; not the same; hardly be considered reasonable that the not this or those; different.” Hyatt v. Allen, Legislature had in mind that the games and 54 Cal. 357. In other words, the word devices eunmerated were played in the gener- "other" will "generally be read as 'other such al markets where grain, animals, and stocks like,' so that persons or things therein comare bought and sold. The intent of the prised may be read as ejusdem generis with, Legislature to legislate against games set up and not of a quality superior to or different and carried on at a fixed place and in houses from, those specifically enumerated." Am. & or rooms is shown by section 331 of the Eng. Ency. of Law, vol. 21, p. 1012; Stroud's Penal Code, which attempts to prohibit the Judicial Dict., p. 1359 et seq.; Lewis Sutheruse of any house for the gambling prohibited land, Statutory Constitution, $$ 423-430. A

study of the innumerable cases suporting this doctrine or dealing with the proposition under discussion, found in the notes in works above cited, will show that in nearly every instance where this rule was not followed the word wils used in a different connection or sense from that apparent in the statute before us. In a recent case the Supreme Court of this state said that there was little, if any, controversy as to the rule in its application to the Penal Statutes. Matter of La Societe Francaise, 123 Cal. 531, 56 l'ac. 4.38. Applying this rule, and adopting the meaning of the word "other" when used in exactly the same connection and sense as in section 330 of the Penal Code, declared in Ilyatt v. Allen, supra, we cannot escape the conclusion that conducting a slot machine played for cigars and tobacco is not within the prohibition of that section of the Penal (odc.

But, aside from this, there is another rule commanding that words not plainly used in a technical sense shall be taken in their ordinary, general sense, and if this is applied to the word "representative," as used in the section, it seems quite clear to my mind that rigars or tobacco cannot be considered as representative of value. The word “representative" as used in the statute certainly means "typifying"; "presenting by means of something"; "standing in the place of"; "that which represents anything.” Cigars and tobacco are things of value; they have a value. This is beyond cavil. But in my opinion it could hardly be said that they represent their own inherent or market value. A certain coin or check or bill will represent the value of any quantity of cigars or tobacco, and these in turn will be inlierently worth the price obtainable for them. But it would hardly be contended that because they have a certain value, measured by current mediums of exchange, they represent the value of the coin or currency paid for them, any more than they represent any other commodity which might be exchanged for them in the course of trade. Every commodity has a value measured according to fixed standards, but the various commodities sold and bought in many markets and transactions do not represent the value of the gold, silver, or currency paid for them. On the contrary, the medium of exchange established by law or recognized in business dealings represents their value. Thus we are led to the conclusion that the words "representative of Talue" do not mean that cigars and tobacio or any other commodity represents its own intrinsic or market value. A similar statute was before the Supreme Court of Montana in a recent case, and the decision of that court illustrates this distinction. There the statute read "for money, checks, credits or any representative of value, or for airy property or thing whatever," and the court held that this language included cigars and tobacco, and in so holding said: The enumera

tion includes every species of property of classes to which the particulars belong. Money' includes all money; 'checks' includes all kinds of articles embraced under that designation ; 'credits' is a term of universal application to obligations due and to become due; and when we consider the expression 'any representative of value there is nothing left of any of the classes of property enumerated; and unless the words 'any property or thing whatever' were designed to include merchandise such as cigars and similar articles, then it must be rejected as of no import whatever.” Stonte v. Woodman (Mont.) 67 Pac. 1120. It will be noted that the statute there construed was much stronger than ours. It not only contained the comprehelisive language "any property or thing whatever,” but it was far more emphatic, in this, that it included "any representative of value," and hence the maxim ejusdem generis could not apply. And yet no person reading the decision can doubt that if the words "any property or thing whatever" had been omitted the decision would have been the other way. And so it must be here, for had the Legislature intended to place the ban of the law on slot machines played for cigars or any other class of merchandise, the natural, ordinary common sense, and in fact the only way to do so, would have been to use the phrase "anything of value," or some similar and equally comprehensive expression. Not having done so, we cannot extend the scope of the statute by giving it a construction at variance with rules of law and the accepted and established meaning of words employed. If the legislative department of government desires to prohibit this character of gaming, that result may easily be accomplished; but until they do so, every citizen is entitled to immunity from punishment for acts which are neither mala in se nor mala probibita,

I concur; CHIPMAN. P. J.

(7 Cal. Unrep. 309) Ex parte WILLIAMS. (Cr. 1,364.) (Supreme Court of California. Sept. 25, 1906.) COURTS-COURTS OF APPELLATE JURISDICTION


The constitutional provision with refidence to the transfer of a case from the District Court of Appeal to the Supreme Court has no application in matters of habeas corpus.

Application by C. C. Williams for a writ of habeas corpus for his discharge from imprisonment on conviction of an alleged (riminal offense. The District ('ourt of Appeal discharged petitioner. 87 P'ac. 50.). Application for an order transferring the cause to the Supreme Court for determination. Denied.

PER CURIAM. The application for an order transferring the above-entitled cause

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