Ex parte Rowe

• Decision Date: 07 May 1912
• Citation: 4 Ala.App. 254,59 So. 69
• Parties: EX PARTE ROWE.
• Court: Alabama Court of Appeals

59 So. 69

4 Ala.App. 254

EX PARTE ROWE.

Court of Appeals of Alabama

May 7, 1912

Appeal from Probate Court, Tallapoosa County; G. J. Sorrell, Judge.

Application by Whit Rowe for writ of habeas corpus. From an order denying the writ, petitioner appeals. Affirmed.

Lackey & Watkins, of Dadeville, for appellant.

James W. Strother, of Alexander City, and N. D. Denson, of La Fayette, for appellee.

DE GRAFFENRIED, J.

Section 1341 of the Code confers upon all municipalities of the state the power to "license, tax, regulate, restrain or prohibit theatrical and other amusements, billiard and pool tables, nine or ten pin alleys, box or ball alleys, shooting galleries, theaters, parks, and other places of amusement," etc. It is evident that the power to license, tax, regulate, restrain, or prohibit the places or business named in the statute refers only to such places or businesses as are had or conducted for the public. The statute does not affect, nor was it intended to affect, the right of an inhabitant of a municipality to keep within his own home, for instance, a billiard or a pool table, for his own private entertainment or recreation.

Acting under the authority of the above statute, the municipality of Camp Hill passed an ordinance prohibiting the keeping of a pool table for hire within the limits of the municipality. The petitioner was convicted of a violation of that ordinance, and now raises the question of the validity of the ordinance. The proposition insisted upon is that as the general laws of the state authorize the keeping of pool tables upon the payment of a license tax, and as the petitioner, under the authority of the general law of the state, had, before the prosecution was commenced, taken out a license to keep a pool table for hire, he should not have been convicted. It is insisted that as the general laws of the state authorize the licensing of pool tables for hire and as section 89 of the Constitution provides that "the Legislature shall have no power to authorize any municipal corporation to pass any laws inconsistent with the general laws of the state," the part of said section 1341 which confers upon all municipalities the power to prohibit the keeping of pool tables for hire is violative of that clause of the Constitution.

The police power of a state is that power which is necessary for its preservation, and without which it cannot serve the purposes for which it is formed.

Municipalities are but subordinate departments of a state government, and it is essential to their healthy growth, to their peace, and the well-being of their inhabitants that the state should delegate to them all police powers which are necessary to their orderly existence. The fact that the Legislature has brought the pool table within its license system, when operated for public purposes, indicates that in the opinion of the Legislature the pool table, when operated for public purposes or for gain, should be an object within the police jurisdiction of the state. The fact that the Legislature in section 1341 of the Code confers upon municipalities broad powers in the matter of licensing, controlling, or even prohibiting, such pool tables, clearly shows that the Legislature was of the opinion that the subject was one which should be peculiarly placed within the police jurisdiction of municipalities.

The reason for this provision is plain. As was said by the Supreme Court of Kansas in City of Burlingham v Thompson, 74 Kan. 393, 86 Pac. 449, 11 Ann. Cas. 64: "Many games and practices may be detrimental to the welfare of a community which are unaccompanied by boisterousness and cannot be classed with nuisances of the disturbing kind. Some of the most enticing are reported as 'gentlemen games,' in playing which the nicest decorum is observed. So the constant tendency to become disorderly may be one of the faults of the small town poolroom. It may be vicious and not be loud." "A pool hall in a village is apt to degenerate into a trysting place for idlers and a nidus for vice." Morgan v State, 64 Neb. 369, 90 N.W. 108. "Those occupying useful trades and occupations do not occupy the same relation to society as those engaged solely in giving amusement to the public. Keepers of billiard tables are not recognized by the state as exercising a useful occupation. They are subjected to police regulation by the state and by cities under powers granted them by the state." The City of Tarkio v. Cook, 120 Mo. 1, 25 S.W. 202, 41 Am. St. Rep. 678.

It is evident from what we have above said that a poolroom or pool table kept for public uses is a proper subject for police regulation by municipalities when the jurisdiction to do so has been properly conferred upon them by the state. The statute expressly confers upon municipalities the power to prohibit pool tables, and the question is, "Did the Legislature contravene the provisions of section 89 of the present Constitution in doing so?" Section 89 provides, as above stated, "that the Legislature shall have no power to authorize any municipal corporation to pass any laws inconsistent with the general laws of the state." This section simply means that in conferring police jurisdiction upon municipalities the Legislature shall not confer upon them the power to make that lawful in municipalities which the general laws of the state declare to be unlawful. It does not mean that the Legislature cannot confer upon municipalities the power over matters within the scope of the police power of the state to make that a violation of a municipal ordinance which is not by general law made a crime. That this is the proper construction of said section 89 of the Constitution is made evident from the following language of the Supreme Court of Alabama in the case of Ex parte Cowert, 92 Ala. 94, 9 So. 225, cited by counsel for the state: "This conclusion renders it unnecessary to decide whether the General Assembly may authorize a municipal corporation, in which the general law of the state as to licensing the sale of liquors is in force, to prohibit that traffic, the general law to the contrary notwithstanding. We are, however, of the opinion, based on exhaustive investigation and consideration, that such authorization would not be violative of article 4, § 50 (now section 89), of the Constitution." There is no general law of the state making the keeping of a pool table for public purposes affirmatively a lawful occupation. We have a general law punishing the keeping of such a table without a license. A license from the state is revocable at the pleasure of the state, and the mere fact that the state has seen proper to make it a crime for any person to keep such a table anywhere in the state unless licensed so to do does not, it seems to us, bring the statute under consideration, certainly in so far as the particular question now before us is concerned, within the operation of said section 89 of our Constitution. The general law makes it a crime for a public pool table to be operated without a license, and the act now under consideration authorizes municipalities to prohibit such tables altogether if they see proper so to do. We see no inconsistency in the two acts, nor is there any inconsistency, within the meaning of the above constitutional provision, between the ordinance under consideration and the general laws of the state. In other words, the ordinance is not in contravention of the general law of the state. Gambrill v. Endwich Bros., 143 Ala. 506, 39 So. 297; Ex parte Sikes, 102 Ala. 173, 15 So. 522, 24 L. R. A. 774; Sou. Ex. Co. v. Mayor, 132 Ala. 326, 31 So. 460; Ex parte Russellville, 95 Ala. 19, 11 So. 18; Hewlett v. Camp, 115 Ala. 499, 22 So. 137; Holt v. Mayor and Aldermen, 111 Ala. 369, 19 So. 735; Mayor and Aldermen of Talladega v. Fitzpatrick, 133 Ala. 613, 32 So. 252.

We are not unmindful of the fact that in some of our states ordinances similar to the one for the violation of which the petitioner in...