Opinion
Appeal from the District Court of the Sixth Judicial District.
This action was brought to recover the license-money alleged to be due under the acts to license gaming, of March 15th, 1851, and April 29th, 1851. (See statutes 1851, pp. 165-167.)
The complaint avers that the defendant kept a gaming-house in Sacramento City, with more than three gaming tables, in which banking games, and games having a percentage, were played during a period of three months, and had thereby become liable to pay the plaintiffs the sum of $ 500, under the statute, which he had refused to pay.
The defendant demurred, on the ground that the complaint did not state facts sufficient to constitute a cause of action.
The demand was sustained, and plaintiff appealed.
COUNSEL
The common law of England was adopted in this State 13th April, 1850, and the keeping of a common gaming-house is indictable at common law. (1 Russell on Crimes, 323.) The civil action is not merged in the misdemeanor created by the statute, though it is in a felony. (10 Wheat. 473; 1 Chitty's Genl. Prac. 10, 11.)
We say that whenever a legal liability to pay money iscreated, whether by statute or at common law, a civil action to recover it will lie, in the name of the person to whom it is due. The statute requires any person keeping gaming-tables to pay a certain sum for the privilege. It is in the nature of a license tax. (See Addison's Rep. 312; 2 Greenl. 404; 6 N.H. 499; 1 N.H. 20; U.S. Dig. p. 271.)
Taxes may be recovered, though no action is given by statute, and this, though distress may lie. (6 Har. & Johns. 383; 2 Roch. 61.) The same principle is held, 3 Mason, 324; 1 Mason, 482; 5 Mass. 326; 2 Conn. 215; 1 U.S. Dig. 272.
Where a statute provides for the payment of money, and gives no means to enforce it, an action at law will lie. (Cowp. 474; and see 1 Doug. 10, n. 2; 19 Vt., 4 Wash., 621; 2 Cranch, 236; 4 Wash. C. C. 106.
Carlton, District Attorney, for Appellants.
No brief for respondent is found with the record.
JUDGES: Heydenfeldt, Justice, delivered the opinion of the Court. Murray, Chief Justice, concurred.
OPINION
HEYDENFELDT, Judge
The defendant was the keeper of a common gaming-house, and this action was for the amount required by law for a license, which the defendant had neglected to obtain. It was decided by this Court, in the case of The People v. Craycroft, 2 Cal. 243, that such an action could not be maintained.
The statute re-enacts the common law, in making this evil occupation a misdemeanor, punishable by fine and imprisonment, and the license is proposed as a sort of compromise for the offence, doubtless with the hope of regulating and thereby diminishing the bad influence of a vice which it is impossible to suppress.
The failure to obtain the license leaves the party as he would have been at common law, a public wrong-doer, and subject to indictment and punishment. Judgment affirmed.