While the Fourteenth Amendment protects the citizen in his right
to engage in any lawful business, it does not prevent legislation
intended to regulate useful occupations which, because of their
nature and location, may prove injurious or offensive to the
public.
The Fourteenth Amendment does not prevent a municipality from
prohibiting any business which is inherently vicious and
harmful.
The Fourteenth Amendment does not prevent a state from
regulating or prohibiting a non-useful occupation which may become
harmful to the public, and the regulation or prohibition need not
be postponed until the evil is flagrant.
An ordinance prohibiting the keeping of billiard halls is not
unconstitutional under the Fourteenth Amendment, either as
depriving the owner of the hall of his property without due process
of law or as denying him the equal protection of the laws.
Where, in the exercise of the police power, the municipal
authorities by ordinance determine that a certain class of resorts
should be prohibited as harmful to the public, the courts cannot
except from the operation of the statute one of the class affected
on the ground that his particular place does not produce the evil
aimed at by the ordinance.
One cannot be heard to complain of his money loss by reason of
the legislating out of existence of a business in which he had
invested and which is not protected by the federal or state
constitution and which he knew was subject to police regulation or
prohibition.
Page 225 U. S. 624
A classification in a statute regulating billiard halls based on
hotels having twenty-five rooms is reasonable, and the owner of a
billiard hall, not connected with a hotel, is not denied equal
protection of the laws by an ordinance prohibiting keeping billiard
halls for hire because hotels having twenty-five rooms can maintain
a billiard hall for their regular guests.
One who does not keep a hotel with less than the specified
number of rooms cannot be heard to complain that a statute denies
the owners of the smaller hotels the equal protection of the laws,
it not appearing that the provision was inserted for purposes of
evasion or that the ordinance was unequally enforced.
The fact that one of a class excepted from the operation of a
police ordinance, on complying with a condition, does not comply
therewith does not render the statute unconstitutional as against
the classes upon which it operates, but renders the person
violating the condition subject to the penalties of the
ordinance.
The ordinance of South Pasadena, California, passed in pursuance
of police power conferred by the general law of the state,
prohibiting the keeping of billiard halls for hire, except in the
case of hotels having twenty-five rooms or more for use of regular
guests is not unconstitutional under the Fourteenth Amendment
either as depriving the owners of billiard halls not connected with
hotels of their property without due process of law or as denying
them equal protection of the law.
155 Cal. 322 affirmed.
The facts, which involve the constitutionality under the
Fourteenth Amendment of a police law of California regulating
billiard halls, are stated in the opinion.
Page 225 U. S. 627
MR. JUSTICE LAMAR delivered the opinion of the Court.
In 1908, the City of South Pasadena, California, in pursuance of
police power conferred by general law, passed an ordinance which
prohibited any person from keeping or maintaining any hall or room
in which billiard or pool tables were kept for hire or public use,
provided it should not be construed to prevent the proprietor of a
hotel using a general register for guests, and having twenty-five
bedrooms and upwards, from maintaining billiard tables for the use
of regular guests only of such hotel in a room provided for that
purpose.
The plaintiff in error was arrested on the charge of
Page 225 U. S. 628
violating this ordinance. His application for a writ of habeas
corpus was denied by the court of appeals and supreme court of the
state.
Ex Parte Murphy, 8 Cal. App. 440, 155 Cal. 322.
Thereafter, the case came on for trial in the recorder's court,
where the defendant testified that, at a time when there was no
ordinance on the subject, he had leased a room in the business part
of the city, and, at large expense, fitted it up with the necessary
tables and equipments; that the place was conducted in a peaceable
and orderly manner, that no betting or gambling or unlawful acts of
any kind were permitted, and
"that there was nothing in the conduct of the business which had
any tendency to immorality or could in the least affect the health,
comfort, safety, or morality of the community or those who
frequented said place of business."
This evidence was, on motion, excluded, and testimony of other
witnesses to the same effect was rejected.
The defendant was found guilty and sentenced to pay a fine, or,
in default thereof, to be imprisoned in the county jail. The
conviction was affirmed by the superior court of the county, the
highest court to which he could appeal. The case was then brought
here by writ of error, the plaintiff contending that the ordinance
violated the provisions of the Fourteenth Amendment, claiming, in
the first place, that, in preventing him from maintaining a
billiard hall, it deprived him of the right to follow an occupation
that is not a nuisance
per se and which therefore could
not be absolutely prohibited.
The Fourteenth Amendment protects the citizen in his right to
engage in any lawful business, but it does not prevent legislation
intended to regulate useful occupations which, because of their
nature or location, may prove injurious or offensive to the public.
Neither does it prevent a municipality from prohibiting any
business which is inherently vicious and harmful. But, between
the
Page 225 U. S. 629
useful business which may be regulated and the vicious business
which can be prohibited lie many non-useful occupations which may
or may not be harmful to the public, according to local conditions
or the manner in which they are conducted.
Playing at billiards is a lawful amusement, and keeping a
billiard hall is not, as held by the Supreme Court of California on
plaintiff's application for habeas corpus, a nuisance
per
se. But it may become such, and the regulation or prohibition
need not be postponed until the evil has become flagrant.
That the keeping of a billiard hall has a harmful tendency is a
fact requiring no proof, and incapable of being controverted by the
testimony of the plaintiff that his business was lawfully
conducted, free from gaming or anything which could affect the
morality of the community or of his patrons. The fact that there
had been no disorder or open violation of the law does not prevent
the municipal authorities from taking legislative notice of the
idleness and other evils which result from the maintenance of a
resort where it is the business of one to stimulate others to play
beyond what is proper for legitimate recreation. The ordinance is
not aimed at the game, but at the place, and where, in the exercise
of the police power, the municipal authorities determine that the
keeping of such resorts should be prohibited, the courts cannot go
behind their finding and inquire into local conditions, or whether
the defendant's hall was an orderly establishment, or had been
conducted in such manner as to produce the evils sought to be
prevented by the ordinance. As said in
Booth v. Illinois,
184 U. S. 425,
184 U. S.
429:
"A calling may not, in itself, be immoral, and yet the tendency
of what is generally or ordinarily or often done in pursuing that
calling may be towards that which is admittedly immoral or
pernicious. If, looking at all the circumstances that attend or
which may ordinarily attend
Page 225 U. S. 630
the pursuit of a particular calling, the state thinks that
certain admitted evils cannot be successfully reached unless that
calling be actually prohibited, the courts cannot interfere unless,
looking through mere forms and at the substance of the matter, they
can say that the statute enacted professedly to protect the public
morals has no real or substantial relation to that object, but is a
clear, unmistakable infringement of rights secured by the
fundamental law."
Under this principle, ordinances prohibiting the keeping of
billiard halls have many times been sustained by the courts.
Tanner v. Albion, 5 Hill 121;
City of Tarkio v.
Cook, 120 Mo. 1;
Clearwater v. Bowman, 72 Kan. 92;
Corinth v. Crittenden, 94 Miss. 41;
Cole v.
Culbertson, 86 Neb. 160;
Ex parte Jones, 4
Okl.Crim.Rep. 74, 97 P. 570.
Indeed, such regulations furnish early instances of the exercise
of the police power by cities. For Lord Hale, in 1672 (2 Keble
846), upheld a municipal bylaw against keeping bowling alleys
because of the known and demoralizing tendency of such places.
Under the laws of the state, South Pasadena was authorized to
pass this ordinance. After its adoption, the keeping of billiard or
pool tables for hire was unlawful, and the plaintiff in error
cannot be heard to complain for the money loss resulting from
having invested his property in an occupation which was neither
protected by the state nor the federal Constitution, and which he
was bound to know could lawfully be regulated out of existence.
There is no merit in the contention that he was denied the equal
protection of the law because, while he was prevented from so
doing, the owners of a certain class of hotels were permitted to
keep a room in which guests might play at the game. If, as argued,
there is no reasonable basis for making a distinction between
hotels with twenty-five rooms and those with twenty-four rooms or
less, the plaintiff
Page 225 U. S. 631
in error is not in position to complain because, not being the
owner of one of the smaller sort, he does not suffer from the
alleged discrimination.
There is no contention that these provisions permitting hotels
to maintain a room in which their regular and registered guests
might play were evasively inserted as a means of permitting the
proprietors to keep tables for hire. Neither is it claimed that the
ordinance is being unequally enforced. On the contrary, the city
trustees are bound to revoke the permit granted to hotels in case
it should be made to appear that the proprietor suffered his rooms
to be used for playing billiards by other than regular guests. If
he allowed the tables to be used for hire, he would be guilty of a
violation of the ordinance, and, of course, be subject to
prosecution and punishment in the same way, and to the same extent,
as the defendant.
Affirmed.
