AGLO 1977 No. 35 - Aug 10 1977
GAMBLING ‑- LOTTERIES ‑- IMPOSITION OF FEES FOR LICENSED SOCIAL CARD GAMES
On and after the effective date of chapter 76, Laws of 1977, 1st Ex.Sess., it will be legally permissible for a limited fee to be charged for playing licensed social card games in accordance with the provisions of §§ 1(18) and 2(11) of that act.
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August 10, 1977
Honorable Irv Greengo
State Representative, 46th District
3203 N.E. 88th
Seattle, Washington 98115 Cite as: AGLO 1977 No. 35
By recent letter you have directed our attention to what you have referred to as an "apparent conflict" between the provisions of two laws passed by the recent legislature relating to certain gambling activities. You have then asked for our opinion on the matter, thereby raising a question which we would paraphrase as follows:
On and after the effective date of chapter 76, Laws of 1977, 1st Ex. Sess., will it be legally permissible for a limited fee to be charged for playing licensed social card games in accordance with the provisions of §§ 1(18) and 2(11) of that act?
We answer the foregoing question in the affirmative for the reasons set forth in our analysis.
Briefly summarized, the problem described in your letter is as follows:
[[Orig. Op. Page 2]]
By its enactment of chapter 76, Laws of 1977, 1st Ex. Sess. (House Bill No. 601), the legislature amended the preexisting provisions of RCW 9.46.020(18) to read as follows:
"(18) 'Social card game' means a card game, including but not limited to the game commonly known as 'Mah Jongg', which constitutes gambling and contains each of the following characteristics:
"(a) There are two or more participants and each of them are players; and
"(b) A player's success at winning money or other thing of value by overcoming chance is in the long run largely determined by the skill of the player; and
"(c) No organization, corporation or person collects or obtains or charges any percentage of or collects or obtains any portion of the money or thing of value wagered or won by any of the players: PROVIDED, That this item (c) shall not preclude a player from collecting or obtaining his winnings; and
"(d) No organization or corporation, or person collects or obtains any money or thing of value from, or charges or imposes any fee upon, any person which either enables him to play or results in or from his playing in excess of one dollar per half hour of playing time by that person collected in advance: PROVIDED, That a fee may also be charged for entry into a tournament for prizes, which fee shall not exceed twenty-five dollars, including all separate fees which might be paid by a player for various phases or events of the tournament: PROVIDED,FURTHER, That this item (d) shall not apply to the membership fee in any bona fide charitable or nonprofit organization ((
or to an admission fee allowed by the commission pursuant to RCW 9.46.070)); and
"(e) The type of card game is one specifically approved by the commission pursuant to RCW 9.46.070; and
"(f) The extent of wagers, money or other thing of value which may be wagered or contributed by [[Orig. Op. Page 3]] any player does not exceed the amount or value specified by the commission pursuant to RCW 9.46.070."1/
Then correspondingly, the legislature also amended RCW 9.46.070 to read, in material part, as follows:
"The [state gambling] commission shall have the following powers and duties:
". . .
"(11) To regulate ((
and establish a reasonable admission)) the collection of and the accounting for the fee which may be imposed by an organization, corporation, or person licensed to conduct a social card game on a person desiring to become a player in a social card game (( . A 'reasonable admission fee' under this item shall be limited to a fee which would defray or help to defray the expenses of the game and which would not be contrary to the purposes of this chapter)) in accordance with RCW 9.46.020(18)(d) as now or hereafter amended:"2/
This act was signed into law by the governor on May 24, 1977, but since it carries no emergency clause it will not take effect until ninety days after adjournment of the legislative session during which it was passed.3/ In the meantime, however, another act relating to gambling activities which was passed by the 1977 legislature, because it did carry an emergency clause, has already gone into effect‑-as of June 30, 1977, when it was signed by the governor. That latter act, which originated as House Bill No. 1133, is now designated as chapter 326, Laws of 1977, 1st Ex. Sess.
Chapter 326,supra, did not purport to amend chapter 76‑-nor did it amend either RCW 9.46.020(18) or RCW 9.46.070(11), supra. It did, however, amend other subsections of both of those statutes and, in addition, it added two new subsections to RCW 9.46.020, thereby causing RCW 9.46.020(18) to be renumbered as RCW 9.46.020(20). And, in addition, as a part of the amendatory process, chapter 326 set forth both of the subsections which had earlier been amended by chapter 76,supra, in their pre‑1977 form. Accord, the requirement of Article II, § 37 of our state constitution which reads as follows:
[[Orig. Op. Page 4]]
"No act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length."
It is for that reason you have suggested the existence of an "apparent conflict" between the two laws. Then, on the basis of that "conflict," you have argued that the limited fee which was expressly sanctioned for social card games by the earlier enacted provisions of chapter 76,supra, should be deemed to have been superseded by chapter 326.4/ In addition, you have pointed to the fact that neither of the two 1977 laws in question amended the legislative declaration against "professional gambling" in RCW 9.46.010 and have urged that this "omission" is also supportive of the same conclusion.
We must, however, respectfully reject that position and, thereby, answer your question, as above paraphrased, in the affirmative; i.e., on and after the effective date of chapter 76, Laws of 1977, 1st Ex. Sess., supra, a limited fee may be charged of persons engaged in playing licensed social card games in accordance with the provisions of that amendatory act.5/
First, insofar as the "apparent conflict" is concerned, there is none because RCW 9.46.020(18) and RCW 9.46.070(11) were only amended by the first of the two acts in question. But for the requirement of Article II, § 37, supra, it would [[Orig. Op. Page 5]] not have been necessary for the legislature to have referred to the preexisting language of those two subsections at all within the text of chapter 326 (House Bill No. 1133).6/ And as explained by the court inKnowlton v. Mason County, 134 Wash. 255, 261, 235 Pac. 33 (1925),
"'By [thus] observing the constitutional form of amending a section of a statute, the legislature does not express an intention then to enact the whole section as amended, but only an intention then to enact the change which is indicated. Any other rule of construction would surely introduce unexpected results and work great inconveniences.'"
In short, chapter 326,supra, was not designed to amend, and it did not amend, anything contained in chapter 76, Laws of 1977, 1st Ex. Sess.,supra. Instead, chapter 326 merely repeated the preexisting language of the two subsections which were expressly amended by chapter 76 in order to comply with the above‑quoted constitutional requirement. Accordingly, the two acts are not to be regarded as being in conflict regarding the question of fees for participation in social card games. Instead, chapter 76,supra, governs with respect to that question.
Moreover, we are also of the opinion that the express amendments contained in chapter 76,supra, must be given full effect in accordance with the terms thereof even though the legislative declaration in opposition to "professional" gambling in RCW 9.46.010 has not been amended. On the one hand, it may well be possible to reconcile the imposition of a limited, and closely regulated, fee for the privilege of participating in a social card game with a continuing expression of legislative opposition to true professional gambling. But on the other hand, even if such a reconciliation were not deemed to be possible, the result would simply be the establishment, by the enactment of chapter 76,supra, of a limited exception to the general rule. State v. Becker, 39 Wn.2d 94, 234 P.2d 897 (1951). In other words, it was not necessary for the legislature expressly to amend RCW 9.46.010,supra, in order to permit such limited fees for participation in social card games as are now provided for [[Orig. Op. Page 6]] (as of its effective date) by chapter 76, Laws of 1977, 1st Ex .Sess., supra.7/
We trust that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/Section 1(18), chapter 76, supra.
2/Section 2(11), chapter 76, supra.
3/Wash. Const., Article II, § 1 (Amendment 26).
4/See, RCW 1.12.025, which reads as follows:
"If at any session of the legislature there are enacted two or more acts amending the same section of the session laws or of the official code, each amendment without reference to the others, each act shall be given effect to the extent that the amendments do not conflict in purpose, otherwise the act last filed in the office of the secretary of state in point of time, shall control: PROVIDED, That if one or more extraordinary sessions of the same legislature shall follow any regular session, this rule of construction shall apply to the laws enacted at either, both, any, or all of such sessions."
5/In addition, under § 2(7)(a) of chapter 326, supra, certain bona fide charitable or nonprofit organizations may now permit their members to play social card games on the organization's premiseswithout licensure by the gambling commission but may not charge a fee therefor.
6/Except, again, to the limited extent of renumbering the former by reason of the earlier addition of two new subsections to RCW 9.46.020.
7/It is also interesting to note in this regard that the legislature had previously made other such exceptions to the general policy statement of RCW 9.46.010 against professional gambling by earlier legislation. In fact, the original authorization of the licensed operation of punchboards and pull tabs as a commercial stimulant in RCW 9.46.030(4) has never been limited by an express prohibition against making a profit therefrom and many operators have done so. Further, by section 3(5), chapter 87, Laws of 1975-76, 2nd Ex. Sess., the legislature authorized any person to operate amusement games under license at specified locations without any limit upon private profit.