Aicardi v. The State

ERROR to the Supreme Court of Alabama.

The Revised Code of Alabama, section 3621, in force before and in the year 1868, enacts that,

'Any person who keeps or exhibits, or is interested or concerned in keeping or exhibiting, any table for gaming, of whatsoever name, kind, or description, not regularly licensed under the laws of the State, must, on conviction, be fined not less than $100,' &c.

This section of the code being in force, the legislature, on the 31st of December, 1868, passed an act which enacted,

'SECTION 1. That Clifton Moses & Co. shall have the full right and authority to form themselves into a partnership association, for the purpose of receiving subscriptions, and to sell and dispose of certificates of subscription which shall entitle the holder thereof to such prizes as may be awarded to them, which distribution of award shall be fairly made in public, by casting of lots, or by lot, chance, or OTHERWISE, in such manner as to them may seem best to promote the interest of the school fund of Mobile County, which said distribution of award and prizes shall be made at their office in the city of Mobile,' &c.

'SECTION 2. That before commencing business under the provisions of this act, said partners shall pay to the board of school commissioners of Mobile County, for the use of the public schools of said county, the sum of $1000; and annually thereafter a like amount, for the term of ten years, or so long as said partnership shall choose to do business under the provisions of this act; it being understood and agreed, that said payment of $1000 per annum is the consideration upon which this privilege is granted.

'SECTION 4. That this act shall remain in full force and effect for ten years, upon the consideration herein contained, during which time said partnership company shall have the right to exercise the privilege and franchise herein given, any law to the contrary notwithstanding.'

Under this act J. C. Moses & Co. formed a partnership, which gave to one Aicardi its authority to keep or exhibit what was clearly a roulette-table, or 'a table for gaming.'

On the 8th of March, 1871, the legislature repealed the above-quoted act.

Moses & Co., however, still paid the $1000 a year, and kept the table open to the public.

Aicardi being now indicted under the section of the code already quoted, set up an authority under the license from Moses & Co., and that the act of the 8th of March, 1871, which he alleged gave Moses & Co. the right to keep such a table as he did, was void, as violating the obligation of contracts. The court in which he was indicted held that it was not thus void, and Aicardi was there convicted.

The Supreme Court of the State affirmed that judgment on the authority of Mayor, Aldermen, and Council of Mobile v. Clifton Moses et al., a case decided at the same term.

In that case the said court held the act of 31st of December, 1868, unconstitutional and void under the constitution of the State; moreover that it did not authorize a gaming-table. Aicardi now brought the case here on error.

Messrs. J. A. Elmore and S. F. Rice, for the plaintiff in error, contended that the legislature had full power to take away either by general law or otherwise all indictable quality from gambling; that they had here done so, so far as Moses & Co. were concerned; and that as to them the section 3621 of the code had been repealed for a valuable consideration paid to the State. That if the act of December, 1868, was valid, it was impossible to argue that its broad language did not confer upon Moses & Co. the franchise or privilege to do everything which Aicardi did, and to select any mode they deemed best for the distribution of awards and prizes; that the act of 1871 plainly impaired the obligation of the contract made with Moses & Co., and liberally paid for by them.

Mr. P. Phillips, contra, argued that no question was before this court as to whether the repealing act of 1871 violated the obligation of contracts; that the decision by the Supreme Court of Alabama, on its own constitution and statutes, had obviated the necessity of question here on that point, and was beyond the revisory power of this court.

Reply: This court will decide for itself whether there was a contract to be impaired, what were its terms, and what its obligations, even though the contract have been a legislative contract, or one which arises from the acceptance of the provisions of an act of a State legislature. State courts are not permitted to evade or elude the jurisdiction of this court, by deciding that to be no contract which this court knows to be a contract, or by any other mistake or device.

Mr. Justice SWAYNE recapitulated the facts of the case, and delivered the opinion of the court.