The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1881-04-01
THE BILLIARD CASE.
A Good Deal Of Talk, but the 0rdi-
nance Untouched.
BechtOl is Discharged

Judge p. II. Emerson, On the wri
of habeGS corpus issued on Officer
John Y. Smith to show why he de
tanned the person of John BechtOl
The particulars of the arrest of Mr.
BechtOl were given on Thursday
morning, and there were quite q
number of persons assembled tC
hear the proceedings. The grounds
of the petition for the writ were
that the officer took the petitioner in
to custody and held him restrained
of his liberty without any warrant
or process whatever, and without
your petitioner having done any act
in the presence of said officers, or
otherwise, to authorize, justify or
afford any cause for such arrest or
restraint" On these allegations in
the petition the writ was issued and
the return made thereto by Andrew
Burt, captain of police, by his dep
uty, John Y. Smith, was that John
Bechtol had been arrested on sight
and while in the act of violating an
ordinance in relation to billiards
and pin alleys" and that the pris-
oner was held pending a hearing of
the charge.
Upon this return Mr.. Miner, city
attorney, asked that the writ be els
charged; whereupon Sutherland &
Mcbride, who appeared for the petit
toner, stated that they proposed to
file a demurrer. Judge Emerson
said he understood the object was to
bring up in this case the matter of
the validity of the ordinance, that
it might stand for future cases.
Judge Sutherland answered that
such was the desire, but by the re-
turn made by the officers, they had
been precluded, and they therefore
made a demurrer, the grounds of
which were: First-That the re-
turn is insufficient in law to justify
the detention complained of; sec
ond-that it appears from said re-
turn that the detention of the said
prisoner is unlawful, and prays that
he may be discharged.
The point in this was that the re-
turn did not set out the fact that
the prisoner was guilty of viola
ton or a breach of the ordinance;
and that as the ordinance was
corporation bylaw, the court
had no judicial knowledge of the
character of the ordinance and
therefore could not determine
whether the defendant BechtOl had
been guilty of a violation or not.
Had it been a statute, it would not
n ct q n
ment in the return as then the court
must have taken judicial notice Of
1t. After a brief discussion, Mr..
Miner asked and obtained leave to
set forth the fact and the tenor of
the ordinance and in what regard it
had been violated, as this would
bring up the question of its valid
itv, which, otherwise, could not
have been reached. Judge Emerson
stated that if Mr.. Miner stood by
the original return the court would
be compelled to discharge the pri-
sOner.
\ delay followed, in which Mr.
Miner prepared his amended return.
a private consultation between the
attorneys succeeded, when Judge
said that he thought
they could agree as to certain facts,
which he stated: That the City
Council had passed an ordinance
l6, 1879, and that under
it the petitioner has been granted
license, March II, 1891, to continue
until June next, and tBat the new
under which the arrest
had been made, was not passed until
four days after the license had been
taken out. and S65 paid thereon;
that the Walker House was one Of
the leading hotels in the city; that
the principal part of the business of
the billiard hall came from the
of guests, most of whom
did not arrived by the night train at
the hotel until about twenty min
utes to 8, and that these guests con-
sumed perhaps an hour in making
toilets and getting supper, and that
the only patronage the billiard hall
from them was from about
a quarter to 10 and after.
In the argument that followed
Judge Sutherland insisted that the
recently passed was void
under the charter, which provided
that the city could restrain,
regulate, suppress or prohibit the
use of billiard tables and the like.
The city here had the privilege to do
several inconsistent things, among
which is to prohibit billiard playing.
The city has not seen fit to do this,
but has preferred to license them
for the sake of revenue. The city
could not prohibit the persons
without refunding the amount of
the license; but had passed regula-
lions which would take away the
lucrative part of their business; it
was not immoral, for then the city
should have prohibited it instead of
it; it was not shown that
a disOrderly house had been kept,
and therefore he claimed the ordi-
nance was unreasonable, unjust and
void; by the licensing of billiard
tables, the practice was encouraged
as a source of revenue to the city,
and therefore 10 o'clock was an
unreasonable hour for the players of
billiards and for the persons who
have taken out their licenses.
Mr.. Miner held that those taking
a license, or making contract with
the city, did so subject to such regu-
latiOns as the city might deem
advisable to make. lie also held
that the City Council could not bind
itself so that it could not exercise
its charter powers; this was not a
contract, it was merely tax, and
was no more Il contract than the
levying a tax on a piece of property
or for the construction of sidewalk.
lie challenged Judge Sutherland to
bring a single authority to prove
that a license was a contract, or had
ANYTHING in the nature of a con-
tract Under the principle that it
was a contract, the city never could
amend Its ordinances.
Judge Emerson asked Mr.. Miner
if the Council could not put in, as a
part of the contract, that the license
was subject to subsequent regula-
tons; or it might provide that after
the passage Of an amended or new
ordinance, any person taking out a
license should be subject to the new
ordinance.
Mr.. Miner replied that such would
be true were the license is a con-
tract; but even admitting this, the
result would be that a person would
take a license one day under an old
ordinance, and another individual