Show BILLIARD TABLES OPINION OF or chier mckeam mckeay territory of utah 1 third district september court term the people etc 1873 vs chinsw kitchen J on the tho oth day of september dinst one brigham young hampton made in before joten jeter clinton a justice of the peace of salt lake city in which lie he deposed that charles W V kitchen on the ath dinst at what is known as the clift house in said city unlawfully did keep and was there and then the keeper of billiard tables the said tables not there anet and then being kept within any dwelling house for the owners recreation and without first obtaining a license for so doing contrary to the provi provisions of an all ordinance of said city entitled etc ete citing the ordinance the ordinance referred to provides that for billiard tables table so kept a license shall be paid as is follows to wit for ono oue table fou for abreo mouths tico 03 00 t two tivo tables three 1 tt at A at 0 CO for each additional table for three months 2300 2500 the ordinance also provides that whoever shall shail violate any of its provisions shall be deemed guilty of a misdemeanor and on conviction thereof shall be je liable to allne aline in fil iny any sum not exceeding one hundred dollars or to imprisonment imprisons ent cut not exceeding six months or both fine and imprisonment the justice of the peace issued bis ills liis warrant and caused the defendant to be brought before him the defendant pleaded guilty to the charge the tiie magistrate thereupon imposed upon the defendant a fine tine of one hundred dollars and committed him until the nine fine should be paid not exceeding one day for each dollar of the fine the defendant is brought into this court by a writ of habeas corpus tile tiie petitioner claiming 0 that the 0 ordinance in in question is unreasonable unjust illegal lle lie Ile gui gul unconstitutional and void J 11 ilc Arc mcbride Bride for the petitioner cites the tho city charter laws of utah city of mount pleasant vs breeze 11 iowa sog 99 dillon on municipal corporations sees 1855 6 9 8 9 and 14 stat utes at large sec see 1 E D hoge for the people peaple cities city charter sec see 61 amended charter laws of 1872 p 11 sees 3 and 9 laws 0 of f 1869 pp ap 16 and 17 chilvers Chil chii vers vcra vs the tho people 11 michigan 43 tobias watkins 3 peters dillon on municipal corporations sees 8 and 90 9 I 1 hurd ur on habeas corpus 6 1 I 1 and hosea osea stout vs the tho people lc M MSS mckean chief justice not only is tho the power to issue the wi it of habeas corpus conferred upon this court and the tile judge thereof by the organic act seo see see sec sec see 9 but tile the territorial jaws laws have given the mo most ampie ample authority ther evinder gention 19 10 chapter 1 10 page 40 laws lawa of utah provides as follows upon the return of any writ of habeas corpus the court or judge shall proceed in a summary manner to settle settie tho the said fact facts by hearing the testimony molly and arguments as well of all parties interested civilly if any there be as of the tho prisoner or prisoners and the tho person oy or persons who hold him heror hecor her ber or them in custody and shall dispose of the prisoner or prisoners a ai tho the caso case may require etc this statute authorizes ancl and requires the court to examine into and pass upon the questions raised in this C case lse use so faras fanas far fan aa the legislative assembly can confer tile tilo power it lias has by section 22 of the city charter empowered the city council to license tax tar regulate suppress or prohibit billiard tables there can bo be no doubt that this provision gives tho city council ample authority in all cases where billiard tables are used for gambling gamb b bettinger betti bettl ngor or winning money or property by a game of chance but if f there was wim in this city a manufacturer tur tuf eror enor or vender of billiard tables and aud if the city council were to pass gass sass an ordinance prohibiting such manufacture or sale or demanding an oppressive arid ruinous licen license se the courts would be compelled in a proper case to declare such ordinance to be unreasonable nulland null nuil and void section 21 of the city charter authorizes the city council A to prevent punish or prohibit all descriptions of gaming playing at dice cards ur or other games of chance with or without gett bett betting ing inq 11 I 1 repeat this gives ample pl at authority bority where any game ef of chance chancels chan ehan eels cels is used for gambling betting jetting tin or winning property but if unar under this provision provision vision the eity city coun couo cou con n ell were wro to prohibit a manfrom man from crom playing a game of chess with his ills wife or young men from playing a gamo game of balc base ball bali or young ladies ladles from play playing luc lur a game of croquet boquet where there was no semblance of betting both such ordinance and tho tile 8 statute authorizing it would be to this extent nulland null nuil and vod void such games ame ames 9 so conducted can neither be e prohibited nor can a 9 license be d demanded it is not the province of government to interfere with such matters until they shall have derene decene degenerated rated into some abuse injurious to society the supreme co court urt of michigan says the ithe object of a license is to cclif era right that does docs not exist without a license and consequently a power to license involves in the exercise of it a power to prohibit under undena a pain or penalty without a license chilvers vis via s the tle people michad Mic vic hag hAQ the right to indulge in the innocent games referred to above exists without a license licen sei set it therefore cannot bo be prohibited in the case ease caveat at bar ibi iti t la not charged eliat the billiard tables of the petitioner were wore used for betting gambling or winning property by any game of chance indeed it is elear clear elearly clearly proven that they were wole dotso nol not so usey used and that nothing not liing whatever was charged for their use there were eight of them in number and they cit cost cst between and the license demanded of the petitioner for keeping them amounts to 1400 per year the offence charged is not gambling nor the permitting of gamblin gambling but keeping billiard tables what must musts the tile petitioner titio tit ioner loner nordo do ho he owns eight billiard tables lie he does not allow them to be toe put to any wrongful use and yet tile the alternative ia presented to himy him either to destroy his tables or else to pay each and every year a forced loan under the guise of a license amounting to nearly one half the original cost of the proper tyl the ordinance in question is unreasonable and therefore void r the petitioner is discharged |