1. Whether the legislature of a state has authority under the
constitution of the state to pass a particular statute, what is the
true interpretation of any statute passed by it for a purpose
specified, and what acts will be justified under the statute, are
matters which lie exclusively within the determination of the
highest court of the state.
2. Statutes which allow gaming are to be construed strictly.
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 $1,000; 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
$1,000 per annum is the consideration upon which this privilege is
granted."
"SECTION 4. That this act shall remain in full force and
effect
Page 86 U. S. 636
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 $1,000 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, 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.
Page 86 U. S. 637
MR. JUSTICE SWAYNE recapitulated the facts of the case and
delivered the 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 31,
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,
Page 86 U. S. 638
the sum of $1,000,
"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 $1,000 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 offense 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
Page 86 U. S. 639
of affirmance before this Court for review. The plaintiff in
error insists that the Act of December 31, 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
Mayor, Aldermen,
and Common Council of Mobile v. Clifton Moses. 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
therefore 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 preexisting 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
Page 86 U. S. 640
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.
