State v. Hanger

By the Court,

Ringo, C. J.

No question other than that relating to the validity of the provisions of the statute, above quoted, has been raised or argued at the bar, and none other need, be decided by this court. The defendants insist that the effect of the enactment in question, is, to indirectly impose upon them a tax of $¡50 a year, for the privilege of keeping a billiard table, and therefore it assumes to do indirectly, that which the legislature is incompetent to do directly; and that its operation is not to prevent or punish the defendants for any unlawful exhibition or use of their billiard table, but to prohibit them from.having and keeping it.

On the contrary, it is urged, by the Attorney General, that it neither operates as a prohibition to keep a billiard table, in a lawful manner, nor as a tax upon the privilege of keeping it, unless such effect be produced by the proviso, in which event, the proviso being repugnant to the enactment, the former ought to. be rejected, and the latter upheld.

The language used in the enactment is plain and unambiguous, and its design most obvious. It is not to prohibit any person from setting up, and keeping a billiard table, or nine or ten pin alley, but to prohibit all persons from setting and keeping any such table, or, for the purpose of playing, or suffering others to play thereon, at any game of billiards, or of nine or ten pins, and in this manner prohibit all persons from playing at said games. It proceeds upon the ground that the playing at such games is detrimental to the public morals, and general welfare of^ the community, but concedes,- that the mere setting up and keeping of such table or alley, upon which no game is played, is both innocent and harmless, and therefore, forbids and punishes the former, but leaves the latter, where the constitution has placed it; that is, to be exercised at the discretion of each individual in the community.

The enactment therefore, unless rendered so by the proviso, is not, in our opinion,'repugnant to any provision contained in the constitution; nor subversive of any right protected by it..

The effect of the proviso, upon the enacting clause, seems to us to be,- not to suspend its. operations for a limited period of time, and thereby make the offence punishable, only when committed within certain specified periods of time, but to legalize the acts prohibited for a périod of one year from the date of each conviction, and thereby' make the conviction operate indirectly as a periodical tax levied upon the convict, for the immunity which he acquires thereby of playing, and suffering others to play, on such table, or alley, at the game of billiards, or nine or ten pins, it must, according to the principles adjudicated by this court in the case of Stevens & Woods vs. The State, 2 Ark. Rep. 271, be repugnant to the constitution, and void. The proviso, therefore, being a nullity, it cannot have the effect to control, or repeal the enactment, as according to the principles adjudged by the court of exchequer, in the case of the Attorney General vs. The Governor and Company of Chelsea Water Works, reported by Fitzgibbon, 195, cited in 1 Kent's Com. 432, and in Dwarris on Statutes, 660, it would otherwise probably do. Consequently the enactment, divested, as we hold it must be, of the proviso, which we consider void, is, we think, unquestionably valid, and therefore, such as offend against its provisions may be prosecuted, convicted, and fined for every violation thereof, however frequently the offence may be committed.

The judgment of the circuit court, pronounced in this case, must therefore be, and it is hereby, reversed, annulled, and set aside, with costs, and the case be remanded to the court from whence it came, with instructions to that court, to deny the motion of the defendants to quash the indictment, and for such further proceedings to be there had therein, as may be consistent with law, and not inconsistent with this opinion.