The Birmingham age-herald., 1904-06-16
JUDGE FEAGIN HAS
 GIVEN \ DECISION Pool Room Case in Favor of
 the City POOL SELLING PROHIBITED In the Matter of Old Dominion Tele- graph Go. Defense contended That City Ordinance Was uncon-
 stitutional-The Code.
POOL SELLING PROHIBITED

Judge Feagin yesterday rendered a de- cision in the pool room case In favor oi the city of Birmingham, and fined Charles Berry $25 for being employed in a place where the results of horse races were being posted or called off. This decision of Judge Feag gin practically means that pool selling cannot be conducted In the city of Birmingham.
 Berry and another employe of the Old Dominion Telegraph company were ar rested by Chief Wier on charge of vo- lating city ordinance. The defense argued that the ordinance was unconsti- tutional on the grounds that 1t was abridging personal rights, and interfering with a mans business.
 The city contends that the ordinance was constitutional as the city had the power to pass it, and that this power was granted by legislature in one of the sections of the charter which gave the city power to pass any ordinance and restrain or prohibit gambling. as long 8 constitution of the state.
 Judge Feagin based his decision on sec ton 4O52 of the criminal code of the state of 1886 which prevents cards and dice playing at public houses and and other public places although no bets are made on such games. Judge Feagin said that the city ordinance specifies public places, and also names certain public places at which calling out the results of races could not be made, and that under the city ordinance as under the state code places where any crowd assemblies be- comes a public place. For that reason the city has the power to prevent the ap- pearance of gambling. or anything that might be suspected of being gambling or anything that might lead to gambling. The sections of the state code that ap- plies to this, and on which Judge Feagin based his decision, is as follows:
 The Code.
 Card and Dice Playing at Public Houses and Other Places.-Any person who plays at any game with cards or dice or any other device or substitute thereof, at any tavern, inn, or store house for selling or retailing spirituous, vinous or malt H. quors. or house or place where spirltu- ous vlnous or malt liquors are retailed, | sold or given away in any public house, highway, or in any other public place. or any outhouse where people resort, must on conviction be fined not less than $20 or more than $50"
 In the 27 Alabama, page 369, public place in general is any place which for fI,1 .a. sembage of people. Any place house, or even a bed room, may become a public place from the use of it. generally, or at the time
 The city charter which grants the same power to the mayor and aldermen for prohibiting or restraining gambling is as follows:
 Section 25. 1. That the mayor and al- dermen shall have full power and author ity to make. adopt and declare motions, resolutions bylaws, ordinances and or ders in whatever manner and upon what ever subject they may see fit to carry out the powers herein granted
 Part of the same section of the city code says: To restrain, to prohibit gambling houses, or house of i'll fame. disorderly conduct, brooches of peace, riots, unlawful assemblies and public in- decency, and to restrain and prohibit chicken fighting and all games of an im- moral character
 Principle of Interpretation. Judge Feagin also said that the courts were required to give the benefit of any doubt as to the constitutionality of an ordinance In favor of the ordinance un- less such ordinance was in a clear con travention of the constitution of the state. In other words there being three coordinate departments of government, the legislative, judicial and executive, each department being separate and in- dependent of the other, the actions of each are to stand unless 1t is in clear contravention of the constitution and fundamental laws of the state. The case of Van Hook vs the city of Selma. in the 10th Alabama, the supreme court of Alabama says that the legisla- tive department of the government is supposed to act within the province of the constitution, wherever the laws passed by 1t Is not in clear controven- tion of constitutional right.