Town of Dardanelle v. Gillespie

• Decision Date: 18 January 1915
• Docket Number: 128
• Citation: 172 S.W. 1036,116 Ark. 390
• Parties: TOWN OF DARDANELLE v. GILLESPIE
• Court: Arkansas Supreme Court

172 S.W. 1036

116 Ark. 390

TOWN OF DARDANELLE v. GILLESPIE

No. 128

Supreme Court of Arkansas

January 18, 1915

Appeal from Yell Circuit Court, Dardanelle District; Hugh Basham Judge; affirmed.

Judgment affirmed.

Town of Dardanelle, pro se.

If the town had the right to enact and enforce the ordinance, the subsequent granting of a license was no justification or protection. 43 Ark. 361. The necessity for regulating and the power to prohibit public places of amusement where games are played has long been recognized. 5 Ark. 412; 13 Id 752; 16 Id. 489; 44 Id. 134; 46 Id. 497; Acts 1911, p. 62; 109 Ark. 429; Kirby's Digest, § 5438; 70 Ark. 221; 34 Id. 372.

Bullock & Davis, for appellee.

1. The only authority to enact the ordinance to suppress the game of pool is found in Kirby's Digest, 5438. It was a game alone for innocent amusement and not an instrument used for "gaming." The ordinance is oppressive and unreasonable and not authorized by the Legislature. 20 Cyc 671; 86 Ark. 356; 84 Ala. 13.

2. As to whether or not a thing is a suppressable nuisance is a question of fact and never of law. 14 N.E. 677; 47 N. J. Law 286; 60 Miss. 451.

3. There is no proof to show that the pool hall was a loafing place for the idle, vicious or immoral. 70 Ark. 12; 52 Id. 23, 25; 12 S.W. 412. In this case defendant had a license from the town and the hall was not used for gaming.

SMITH, J. KIRBY, J., dissents.

OPINION

SMITH, J.

This cause was tried upon the following agreed statement of facts:

"It is agreed by counsel representing the plaintiff and defendant that the town of Dardanelle, prior to the arrest of the defendant herein, had enacted an ordinance prohibiting any person from keeping a pool hall or operating a pool table in the incorporated town of Dardanelle, and the mayor of the town, without the repeal of the ordinance, had issued a license to the defendant, permitting the defendant to keep a pool hall and operate pool tables therein; that said table or said pool hall was not used as a gambling device, and no gambling was allowed at the playing of the said pool games therein, but the same was carried on alone for the amusement of the customers, each of whom paid -- cents for the use of the table to the owner on each game played."

Under this agreed statement of facts the court, sitting as a jury, found the appellee not guilty and ordered him discharged, and the town has prosecuted this appeal from that judgment.

Appellee can claim no immunity under the license issued to him by the mayor. The mayor could issue no license unless some ordinance of the town authorized him so to do, and from the agreed statement of facts it appears that there was, not only no such ordinance, but that keeping a pool hall or operating a pool table was declared to be an unlawful act in said town.

We think, without question, the Legislature might declare the keeping of a pool hall to be unlawful, and it might, no doubt, confer upon town councils the authority to prohibit them; but no such action can be taken by the council without legislative sanction. In re Jones, 4 Okla.Crim. 74, 31 L.R.A. (N.S.) 548, 109 P. 570. It is urged that this authority is conferred by section 5438 of Kirby's Digest. So much of that section as is applicable here reads as follows:

"They (town councils) shall have power to license, regulate, tax or suppress (various occupations named) * * * billiard tables or other instruments used for gaming," and in the same sentence there is also named tippling houses, dram shops, gaming, gambling houses, etc. But it has been held that the authority to license dram shops could be exercised only when this...