Ex parte Draughn

• Decision Date: 27 October 1933
• Docket Number: A-8601.
• Citation: 26 P.2d 437,55 Okla.Crim. 139
• Parties: Ex parte DRAUGHN.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

26 P.2d 437

55 Okla.Crim. 139

Ex parte DRAUGHN.

No. A-8601.

Court of Criminal Appeals of Oklahoma

October 27, 1933

Syllabus by the Court.

1. A city council of a city has power to enact an ordinance to regulate, restrain, prohibit, or abolish pool or billiard halls within the corporate limits.

2. The power conferred on the county judge by section 2423, O. S 1931, to issue a license to any person to operate a pool or billiard hall does not restrict the right of a city or town to regulate, restrain, prohibit, or abolish them.

3. When a municipality, acting within the scope of its authority, has passed an ordinance, it is presumptively valid, and where carried for several years, it will be conclusively presumed to have been passed and published as required by law.

Original habeas corpus proceeding by Hugh Draughn, allegedly unlawfully restrained by the Chief of Police of the City of Ada.

Writ denied.

Jeff H Williams, of Chickosha, and C. T. Rice, of Purcell, for petitioner.

J. Wm Crawford, of Ada, for respondent.

EDWARDS Presiding Judge.

This is an original proceeding in habeas corpus. Petitioner alleges he is unlawfully restrained by the chief of police of the city of Ada for an alleged violation of Ordinance 624, which prohibits the operation of pool halls within said city; that he was assessed a fine and costs in the sum of $19.75; that said ordinance is void and the restraint illegal.

The city of Ada is operating under a charter form of government. February 9, 1915, it enacted Ordinance 334, prohibiting the operation of a pool or billiard hall in said city, fixing a maximum punishment at a fine of $100. On June 12, 1919, amendatory Ordinance 422 was enacted, reducing the punishment fixed by Ordinance 334, to a maximum fine of $20. In November, 1932, Ordinance 624 was enacted, prohibiting the operation of billiard or pool tables or a combination thereof for hire or gain, fixing punishment and declaring an emergency. This latter ordinance was not published until June, 1933. On July 21, 1933, petitioner opened a pool and billiard hall, after having obtained a license from the county judge, as provided by section 2423, O. S. 1931. He was arrested and fine assessed, as stated. Petition for habeas corpus was filed in this court and a rule to show cause issued. The chief of police, in his response, states he is holding petitioner under a commitment issued for a conviction under Ordinance 334.

It is argued that since the operation of a pool and billiard hall is authorized under a statute and the county judge vested with power to grant a license, that a city is without power to prohibit the operation by ordinance; that there is a conflict of authority between the county court and the city government, citing Oklahoma City, Okla., v. Dolese (C. C. A.) 48 F. (2d) 734; section 6432, O. S. 1931; E. I. DuPont, etc., v. Dodson, 49 Okl. 58, 150 P. 1085.

By section 2423, O. S. 1931, providing for licensing pool hall operators, the Legislature did not intend to restrict a municipality in its police power to regulate, prohibit, or abolish pool or billiard halls. This is evident from the fact that section 2425, further provides: "This act shall in no way impair the right of any incorporated city or town to impose an additional license fee for maintaining any such pool or billiard hall, or pool or billiard table; or to prevent any incorporated city or town from abolishing same under existing laws."

Also in section 5998, O. S. 1931, express power to restrain and prohibit is conferred, as follows: "The city council of each city of the state and the board of trustees of each incorporated town or village shall have power to enact ordinances to restrain, prohibit and suppress games and gambling houses, bowling alleys, pool and billiard tables, and other gambling tables."

It is obvious that considering these sections together, the municipality has very broad power to protect its citizens by regulating, prohibiting, or abolishing pool and billiard halls. Section 2423 does not take away from the municipality any of its power in this particular, it applies only in the event the municipality does not exercise its power. But even if the municipality does not exercise the power, a pool or billiard hall is not to be permitted to operate without any regulation, so by section 2423, power is conferred on the county judge to investigate and license or refuse to license the person seeking to operate. These statutes construed together do not conflict. The situation is analogous to that existing for a time under the prohibition laws. The federal authority might issue a liquor license to a citizen of the state, yet, by so doing, he was not authorized to violate the state Constitution and laws. There was no conflict of jurisdiction. The fact that petitioner was licensed by the county judge did not, in any manner, nullify the city ordinance prohibiting the...