Aicardi v. The State/Opinion of the Court

The record discloses, so far as is necessary to state it, the following case:

The plaintiff in error was indicted for keeping a gaming-table.

The legislature of Alabama passed an act, approved December 31st, 1868, entitled 'An act to establish the Mobile Charitable Association, for the benefit of the common-school fund of Mobile County, without distinction of color.' It authorized certain persons therein named to form themselves into a partnership association, under the name and style of J. C. Moses & Co., and to establish and carry on the business specified. Before commencing business they were required to pay to the board of school commissioners of Mobile County, for the use of the public schools of that 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 by said partnership to said common-school fund, is the consideration upon which this privilege is granted, and whenever said company shall fail to pay said sum according to the provisions of this act, then and in that case the right to do business shall cease.' The last section declared '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.'

On the 8th of March, 1871, the legislature repealed the act.

Moses & Co. paid the amount required as a condition precedent, and continued to pay from time to time thereafter as if the repealing act had not been passed.

It was admitted that the defendant in keeping the gaming-table acted under the authority of Moses & Co., and as their agent. The offence was charged to have been committed on the 2d of December, 1871.

The bill of exceptions sets forth fully the evidence given at the trial. The table was 'a table similar in many respects to a table commonly known and called a roulette-table, or table and wheel similar to a roulette-table, at which money was bet by persons operating at said table; that the money was bet in this manner.' The manner of using the wheel and table and of conducting the gaming process are then fully described.

The court instructed the jury in substance that if the defendant had kept a gaming-table they should find him guilty. The defendant excepted. He thereupon asked certain instructions, which were refused, and he excepted to the refusal.

The Supreme Court of the State affirmed the judgment, and this writ of error has been prosecuted to bring the judgment of affirmance before this court for review. The plaintiff in error insists that the act of December 31st, 1868, was, when the repealing act was passed, as between Moses & Co. and the State, a contract, and that the repealing act was a violation of that contract within the meaning of the Constitution of the United States, and therefore void.

Our attention has been called to the opinions of the judges of the Supreme Court of Alabama in the case of The Mayor, Aldermen, and Common Council of Mobile v. Clifton Moses et al. That case involved the same statutes and presented the same questions as the case before us. In that case a majority of the judges held that the act was unwarranted by the constitution of the State, and therefove void. But a majority also held that keeping a gaming-table was not within the purview of the act, and that the act did not affect the pre-existing provision of the code upon that subject. One of the judges, holding this latter view, said: 'The act declares that the association was allowed to be formed for the purpose of receiving subscriptions, and to sell and dispose of certificates of subscription, which shall entitle the holders thereof to such prizes as may be awarded to them. This is the means provided by the law to carry on 'business' under the franchise. This may be done, whatever it may mean, without the violation of the statutes against gambling; that is, without keeping a gaming-table in the manner forbidden by the revised code. The scheme of operations set out in the bill is clearly that of keeping or exhibiting 'a table for gaming.' The legislature did not intend to repeal this section of the code by the law allowing the formation of this association, and turn loose upon society the evils thus restrained.'

This construction of the statute is authoritative in this court. We concur in the views expressed by the learned judge from whose opinion we have quoted. Such an act should be construed strictly. Every reasonable doubt should be so resolved as to limit the powers and rights claimed under its authority. Implications and intendments should have no place except as they are inevitable from the language or the context. But aside from these views it is not to be supposed that it was the purpose of the act to give to the association the power to carry on, throughout the State, for the period of ten years, gaming in the form disclosed in this record, in defiance of the legislative authority, and without any check or limitation save such as they might choose to impose upon themselves.

This conclusion renders it unnecessary to consider the constitutional validity of the original act or the effect of the repealing act. We have not found it necessary to consider those subjects.

JUDGMENT AFFIRMED.