The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1881-04-12
THE BILLIARDS CASE.
Opinion Of Judge Hunter.

lO7ft Of hG6edS corpus.
Sutherland & Mcbride, for applicant;
Miner for respondent.
The frat duty Of court when called
upon to consider the force and validity
Iof the ordinances of municipal corpora
ton Is % look into tAe powers conferred
upon such corporation by its charter
Municipal corporations have no powers
cave those which are delegated 10 them
under the law Of their creation, such As
are nesessary to the exercise of their cor
tporate existence.
i The supreme legislative power of this
territory Is vested in the Governor and q
Legislative Assembly, subject to the
right of Congress of the UniIed States 10
disapprove of any Of its enactmsnts.
The Territorial Legislature. under the
powers conferred upon it by the Organic
Act and section 1851 of the Revised
Statutes Of the United States, subject 70
the reserved right Of disapproval by the
Congress OF the United States, has the
right to grant charters to municipal cor
porations.
By an act passed January 10Th, 1860,
entitled An Act Incorporating Salt
Lake City," and by sections q and o.
thereof, the City Council OF Salt Lake
City j. empowered, within the jurisdic-
ton Of the city, by ordinance and en-
| lorcement thereof, TO license, tax, regu-
late, suppress or prohibit billiard tables,
etc.
And by an act entitled San Act
/ Amending the Charters Of Incorporated
Cities" approved February 18th, 1872,
and by sections and 9 thereof, it is en-
acted that THE City Council Of the
respective cities are hereby empowered.
by ordinance, To license, tax, regulate
and suppress billiard tables" ETC., and
by section 10 thereof, repeAls so much OF
the city charters of the several cities as
conflict with the foregoing sections. It Is
evident that the effect Of this enactment
and the repeating section is to repeal sec
ton y Of the act Of January 22d, 1860.
All power, therefore, which is con-
ferrsd on the City Council Of Salt Lake
City, to license, tax, regulate and sup
press billiard tables, etc., is derived from
this amendment.
1t will be observed that the form OF eI-
pressing the powers thus conferred, is
different in the two ensetments. That
used in section % Of the act OF January
22d, 1850, has the additional word ''pro-
| hibit, !" and il connected by the disjune-
tive conjunction "or;;" that used in sec
ton leaves out the word "prohibit,"
and is connected by the conductive con-
junction sand" In giviog construction
% enactments, consideration must be had
as TO the grammatical purport Of the
language used When the former case,
IN which these same parties we're before
The court on q writ of hdbedS corpus, for
violstion of an ordinance Of this city,
was heard, the existence of the amend
ment to the city charter Of February 10Th,
| 1872, escaped the attention Of counsel on
both sides and the court, the whole line
II argument then presented being with
reference to. the provisions of the charter
IF January 22d, 1860, and what was
then said by the court had reference only
to the case as 1t was presented to the
court. The conclusions Of the court,
based upon the case as then made, WAS
10 the effect that the City Council did
not have the power under It's charter Of
anuary 22i, 1860, TO license and tax
billiard tables, and that the effect of the
ordinance then presented to the court
Was TO do both Of these things. 1t is the
general principle, that where two or
more powers are granted to q municipal
corporation, which are inconsistent with
each other, that the attempt on the part
of the corporation TO exercise one excludes
the right to exercise the other. 1t is In
the nature of an option, and when the
option is exercised, and IS long as the or
dinance remains in existence which sets
forth the option, just so long will the cor
poration be estopped from assuming the
other power. Consequently, rely
ing upon the counsel who argued the
case for the presentation of all
The chartered privileges of the city,
and having only presented the
charter Of January %, 1861, the court
WAS forced to the conclusion it reached
on that hearing. In the case just referred
To-, the charter IN expressing the powers
to be conferred upon the city, uGed th 3
distinctive conjunction "or," there could
be no other conclusion reached by the
court, than the one it did, and in such
case it could make no difference whether
the powers conferred were inconsistent or
not. AS in the construction Of q criminal
statute which confers upon a court the
power to imprison or fac convict, the
| word cor" controls the authority Of the
court. The court cannot both fine and
lmprison. 1t has the right Of choice as
bstween the two puniShments, and hav-
| ing chosen one, 1t cannot infiict the
other. Nor can it infict both. The
contrary is the rule where the coniunc-
tive conjunction "Gnd" Is used. In such
case both grades of punishment may be
inflicted, and must be under the state OF
the law as it is now before the court.
With the aid Of the amendment of Feb
ruary Is, 1872, this construction will not
do. And 10 determining the effect OF
that amendment, resort must be had to
the general principle before referred to.
namely, il the two or more powers are
granted, are they such ss being SO con-
sistent with each other they Can stand to-
gether, or are they so inconsistent one
with the other that they cannot be exer-
cised at the same time. By this amend
meut the city is empowered by ordinance
''tO license, tax, regulate and suppress
billiard tables" Under this grant OF
power the City Council of Salt Lake
City has enacted the following ordi-
nRnces:
| SECTION 1.-Bs IL ordained By The
City Council Of Salt Lake CITY, That nc
person shall keep any OF tbs tables here
matter mentioned in any hotel, saloon oil
other public place, for use, without first
obtaining license therefor sccor ding tc
the provisions of this ordinance.
SEC. 2.-For the purpose Of revenue
there shall be levied aud collected in ad-
vance, of the keeper thereof, for every
license to keep. as Aforesaid, billiard
bagstelle, borondalette, pigson-hole, poo
or o.har kind Of tables on which game;
are played, for one such table for three
months fifteen dollars, and for eaef
/ additional table, for three months, ter
dollars.
SEC. 3.-Licenses under this ordinances
4 shall be obtained, Issued aud recorded il
the same manner as provided in Chapte
Eight of the Revised Ordinances Of Sal
Lake City.
SEC. Amy person refusing or neg
Letting to comply with the provisions o
this ordnance shall be liHble to fine
not exceeding Ninety-niDe Dollars, snC
to imprisonment rot exceeding Ont
Hundred Days, or both for every such
ofense.
SEC. 5.-That Article Seven of Chspte
Eight, Of the Revised Ordinances Of Sal
Lake City, "Relsting to Billiards and
Pin Alleys" also "An Ordinance in re-
lation to Billiards and Other Tables, anc
to Pin Alleys" passed May 10Th, 1879
be, and the same are hereby repealed.
Passed September 18th, 1879.
SECTION l.-Be it ordained blythe CIts
Council of Salt Lake City, That it shall
moi be lawful for any owner or person II
charge of any billiard, or other kind o.
tables, or ball or pin alleys, or runway:
on which games are plsyed st any public
place 10 said city, to permit games Of any
kind to be played thereon on the first q y