ing of such pools, or becomes the custodian or depositary for gain or hire," etc., in effect excepts and permits all receiving which is. not for gain, hire or reward and which is not done in some one of the places mentioned by one who uses or occupies such place for that purpose. It is, therefore, to that extent inconsistent with that part of the preceding clause which forbids the receiving of such money for the use of the parties to the bet or wager anywhere or under any circumstances, and under the rule applicable to a statute in which the latter clause is found irreconcilably inconsistent with the preceding clause that the clause later in position operates as a repeal of the former clause so far as it is inconsistent, renders that former clause practically inoperative so far as it relates to the mere receiving of money, property, bet or wager, and renders the only conditions under which the receiving money will be criminal those mentioned in the latter clause.—Matter of Roberts, 157 Cal. 472, 476, 108 Pac. 315.

6. The inconsistency between the two clauses mentioned in the last note, applies only to that part of the clause first mentioned relating to the "receiving" the money or thing bet or wagered and has no necessary bearing upon so much of the first clause as relates to a person who "records, registers or forwards" such money or things.

Those acts are different from merely receiving and involve other elements, intents and results.-Matter of Roberts, 157 Cal. 472, 476, 108 Pac. 315.

7. Money must be for bet.-Under clause providing that every person who receives, registers, records or forwards, or purports or pretends to receive, register, record or forward whatsoever any money, thing or consideration of value, bet or wager, to constitute a criminal acceptance of such money, it is necessary that it be received for the use of the parties to the bet or wager and not as the due or right of the person receiving it. He must take it as their property and not as his own. If he receives it in payment of a debt or as a gift he commits no offense and the fact that it was the identical money or thing which had been wagered from the party or parties from whom he received it is immaterial. In that case, he would be no party to the bet or wager which the law intends to denounce as criminal. In order to constitute a crime under this clause, therefore,

the person receiving the money must do so as custodian or depositary for the parties to the bet or wager and must act as such for some period of time, however brief.Matter of Roberts, 157 Cal. 472, 476, 108 Pac. 315.

8. Offer to bet with spectators at a ball game, or any of them, at given odds upon a named contingency, and upon the offer being accepted by one of the spectators, the bet being registered and recorded by "the one making the offer," is a character of betting within the language and intent of this section.-People v. Schwartz, 14 Cal. App. 9, 110 Pac. 969.

9. Penalty-Felony or misdemeanor.— The distinction between a felony and a misdemeanor is for the legislature, and the legislature of this state has expressly stated where a crime may be punishable by imprisonment in the state prison and also by fine and imprisonment in the county jail in the discretion of the court such crime shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the state prison. The legislature has designated the classification and the means whereby such classification shall be ascertained. In imposing sentence under this section, the court is not authorized to determine as to whether or not certain acts would constitute a crime. The legislature has already prescribed that, and merely vested discretion as to the punishment in the court.-In re O'Shea, 11 Cal. App. 568, 574, 105 Pac. 776.

10. Power to punish gambling unquestionable.-It has long been the practice in this country for the legislature of the state or the legislative body of municipal corporations to pass laws prohibiting and punishing any practice or business the tendency of which as shown by experience is to weaken or corrupt the morals of those who follow it, or to encourage idleness instead of habits of industry, and to prohibit and punish gambling in the various forms in which it is practiced. Such regulation when not in conflict with general laws or with the constitution or charter under which they are enacted are universally upheld by the courts. In fact, it has been settled that gambling in its many forms may be rightfully suppressed and punished and that the question is no longer open for discussion in this country.-In re O'Shea, 11 Cal. App. 568, 570, 105 Pac. 776.

$338. Pawnbroking without license. $339. Failing to keep a register. $340. Pawnbrokers, what interest may charge.

$341. Selling before time of redemption has expired, or without notice.

§ 342. Refusing to disclose particulars of sale. § 343. Refusing to allow inspection of register of pledged articles.

§ 344. Junk dealers, application of code sections to.

PAWNBROKERS-REGULATING.

1. As to definition of pawnbroker. 2,3. Carrying on other business-Subject to provisions of section.

4. Chattel mortgage required-Effect of. 5. Doing business in violation of lawValidity of contract.

6. Subject to regulation under police power. 7. Same-Ordinance regulating.

1. As to definition of pawnbroker.— Pawnbroker, under this section, is one who carries on business of receiving goods in pledge, for loans, exacting interest for such loans.-Levison v. Boas, 150 Cal. 185, 11 Ann. Cas. 661, 12 L. R. A. (N. S.) 575, 88 Pac. 825, 826.

2. Carrying on other business-Subject to provisions of section.-Party carrying on business of pawnbroker is subject to regulations of such business, though he conducts other kinds of business at same time and place.-Levison v. Boas, 150 Cal. 185, 11 Ann. Cas. 661, 12 L. R. A. (N. S.) 575, 88 Pac. 825, 827.

3. One is no less pawnbroker though he does not make loans on pledges on any other kind of goods than jewelry and diamonds.-Levison v. Boas, 150 Cal. 185, 11 Ann. Cas. 661, 12 L. R. A. (N. S.) 575, 88 Pac. 825, 826.

4. Chattel mortgage required—Effect of. -The fact that a person doing a pawnbrokering business requires the pawner or pledgeor to sign a note and execute a chattel mortgage in connection with the transaction does not change the nature of the business or relieve the party of obligation to comply with the law regulating a pawnbrokering business; the fact of taking possession of the property as a pledge, and relying upon his possession as a pledgee, negatives the conception of a chattel mortgage, or that he is doing a chattelmortgage business.-Levison v. Boas, 150 Cal. 185, 11 Ann. Cas. 661, 12 L. R. A. (N. S.) 575, 88 Pac. 825, approving St. Paul v. Lytle, 69 Minn. 1, 71 N. W. 703.

5. Doing business in violation of lawValidity of contract.-Contracts of pledge made with pawnbroker who carries on business without license is void.-Levison V. Boas, 150 Cal. 185, 11 Ann. Cas. 661, 12 L. R. A. (N. S.) 575, 88 Pac. 825, 828.

As to validity of contract made in 20 business carried on in violation of state statute or municipal ordinance, see notes, 1 Ann. Cas. 333; 11 Ann. Cas. 664.

As to validity of a contract made in the course of a business which it is a misdemeanor to transact, see notes, 12 L. R. A. (N. S.) 575; 43 L. R. A. (N. S.) 1109; L. R. A. 1915B, 851.

6. Subject to regulation under police power. The carrying on of the business of

a

pawnbroker is a privilege and not a right, and in engaging in that business a party must comply with the laws of the state and the municipal ordinances of the city in which the business is transacted. These regulations, state and municipal, are made for the benefit of, and to prevent fraud upon, the public.-Levison v. Boas, 150 Cal. 185, 11 Ann. Cas. 661, 12 L. R. A (N. S.) 575, 88 Pac. 825. See Ex parte Lichtenstein, 67 Cal. 359, 56 Am. Rep. 713, 7 Pac. 728; Grand Rapids v. Brandy, 105 Mich. 670, 55 Am. St. Rep. 472, 32 L. R. A. 116, 64 N. W. 29; St. Joseph v. Levin, 128 Mo. 588, 49 Am. St. Rep. 577, 31 S. W. 101; Ferguson v. Norman, 5 Bing. (N. C.) 76, 35 Eng. C. L. 37.

See, also, notes, 32 L. R. A. 117; L. R. A. 657.

or

38

or

7. Same-Ordinance regulating pawnbrokers, requiring them to pay a reasonable fee for a license to do business, and also to give a bond conditioned to comply with such ordinance, and prohibiting them from purchasing goods or taking articles things offered by any person (1) under sixteen years of age, or (2) intoxicated or an habitual drunkard, and reserving the power in the city council to revoke such license to do business at will, is a reasonable and valid ordinance.-Grand Rapids v. Brandy, 105 Mich. 670, 55 Am. St. Rep. 472, 32 L. R. A.

PAWNBROKERS-INTEREST MAY
CHARGE.

1. Act April 17, 1861-Constitutional.

2. Acts March 20 and 21, 1905-Unconstitutional.

3. Section general law-Not unconstitutional. 4. Statute against discounting at higher rate than 8 per cent-Constitutionality.

5. Violation of provision-Effect of on con

tract.

1. Act of April 17, 1861-Constitutional. -The act of April 17, 1861, prohibiting pawnbrokers from charging more than four per cent per month interest is not unconstitutional.-Jackson v. Shawl, 29 Cal. 267, 271. See People ex rel. Smith v. Judge Twelfth District, 17 Cal. 547, 554; Ex parte Andrews, 18 Cal. 678, 680; French v. Teschemaker, 24 Cal. 518, 544.

2. Acts March 20 and 21, 1905-Unconstitutional.-Lending money upon chattel mortgage, charging for the examination, and the interest to be charged on such loan, "are the subject of legislation in two laws passed by the legislature of 1905 upon different days, namely, the act of March 20, 1905, entitled 'An act fixing the rates of interest and charges upon loans on chattel mortgages on certain personal property, and prescribing the penalties for the violation of the act' (Stats. 1905, p. 422), and the act approved March 21, 1905, entitled 'An act to provide for the incorporation of associations for lending money on personal property, and regulating the same, and to forbid certain loans of money, property, or credit' (Stats. 1905, p. 711). Each one of these laws made the particular acts charged in the complaint upon which the petitioner was convicted a misdemeanor. The petitioner was convicted, and sentenced to pay a fine of one hundred dollars, with imprisonment if the fine was not paid. He asks to be

tional."

released from custody, on ground that the above-mentioned statutes are unconstituContention upheld, and laws declared unconstitutional.-Matter of Sohncke, 148 Cal. 262, 268, 82 Pac. 956.

3. Section is general law uniform in its operation, and is not in conflict with constitutional provisions that no local or special law shall be passed by legislature for punishment of crimes or misdemeanors or for regulating rate of interest on money.Ex parte Lichtenstein, 67 Cal. 359, 361, 56 Am. Rep. 713, 7 Pac. 728. See Jackson v. Shawl, 29 Cal. 267; Ex parte Koser, 60 Cal. 177.

4. Statute providing that any banker who discounts any commercial paper at higher rate of interest than eight per cent per annum, not including difference of exchange, is guilty of misdemeanor, is not invalid as being class legislation, as it applies to all kinds of bankers.-Youngblood v. Birmingham T. & S. Co., 95 Ala. 521, 522, 36 Am. St. Rep. 245, 20 L. R. A. 58, 12 So. 579.

on

5. Violation of provision-Effect of contract. The violation of this section by the defendant as a pawnbroker does not render the transaction whereby he charged and received a rate of interest in excess of two per cent so wholly void as to entitle the pledgeor to recover his property without paying or offering to pay the amount of his several loans. The agreements between plaintiff and defendant as to their loans and pledges were legal as to the principal sum of the loans and security were concerned and only illegal as to the interest to be charged. The question as to whether plaintiff is required to make an additional tender of any sum as interest up to or less than the two per cent is mentioned, but not decided.-Innes v. Goldwater, 30 Cal. App. 101, 157 Pac. 18.

P. C.-28

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