The Birmingham age-herald., 1905-12-30
DECIDES AGAINST
 CHIEF OF POLICE
Case Won by Alleged Proprie-
 tor of Gambling ParIor
WEIR WILL TAKE APPEAL
Question of ConstItutionalIty of Ger tain Ordinance Providing for Selz- ure and Destruction of Gam
 bling Devlces-Decislon.

The case of Frank Marrange vs. ". E. Wier. chief of police, was decided yes- terday by Justice H. B. Abernathy in favor of the plaintiff.
 Some time ago the police raided an alleged gambling parlor In the Morris ho- tel of which 1t twas averred at the time that Frank Marragne was proprietor. A roulette wheel poker table and other gaming paraphernalia was confscated by the police. It was stated that those caught in the parlors at the time were arrested.
 The gaming paraphernalia found in the alleged gambling place was seized by the police and brought to police headquar- ters. The plaintiff in the case maintained thet the police had exceeded their juris- diedon, and further charged that the Mayor and Board of Aldermen of Bir- mingham had no authority to pass the ordinance under which the raid was made
 A few days after the raid and confisca- tion of the property in question, Frank Marragne, through his attorney, filed suit against Chief Wier alleging that the ordinance under which the arrest was iiieelt was utltCliN6 dllu
 Service was secured on Chief Wier. An agreement was made between the attorney for the plaintiff and City Attorney Ed Smith to submit the case to Justice Aber- nathy on facts. Both sides agreed that the ordinance was legal so far as the arrests by the police were concerned. The attorney for Marragne averred in his pe- tition that the City Council had exceeded the authority given the body by the con- stitution in enacting such an ordinance and therefore that the measure was un- constitutional.
 The ordinance in full is as follows:
 AN ORDINANCE
 To provide for the seizure and destruc-
 ton of all devices used for gaming in
 the city of Birmingham, Ala.
 Section 1. Be 1t ordained by the Mayor and Aldermen of Birmingham, that each and every table, cloth, box and other device used for the purpose of gaming in the city of Birmingham is, and is hereby declared to be, a public nuisance, and may be seized, abated, and sumarily destroyed by any person; and it shall be the duty of the chief of police and every policeman to seize, remove and forthwith destroy the same when found in the possession of or under the control of any person violat- Ing any city ordinance or state law against gaming, or on the premises where any such violation is being Or has been committed.
 Sec. 2. Be 1t further ordained that no action for damages shall lie or be main- tained against any person for or on ac- count of any seizure and destruction such as mentioned in section 1 of this ordi- nance.
 Adopted June [ 1905.
 In deciding the case Justice Abernathy held that the first section of the ordinance is constitutional, but that the second is not inasmuch as the Board of Aldermen do not possess authority to exempt per- sons or municipalities from damages.
 Justice Abernathy further held that the evidence produced was not sufficient to show that gaming was going on at the time of the arrest and raid. The court held further that as no gaming was in progress when the raid was made that the police exceeded their authority.
 Chief of Police Wier was seen last night in reference to the decision of Jus tice Abernathy.
 "The case will most certainly be ap- pealed," said Chief Wier. 'I was author- ized some time ago by Mayor Ward to take such action should justice of the peace deside against the city The cause will be taken to the next higher court, and if the decision of Justice Aberna thy is sustained, an appeal will be taken to the supreme court"