#### Town of Dardanelle v. Gillespie.

Opinion delivered January 18, 1915.

1. License — authority—city ordinance. — The mayor of an incorporated town can not issue any license unless some ordinance of the town authorizes him to do so.

*3912. Poor, halls — license—authority op city council. — A city council can not iproMblt the maintenance of a pool (hall without legislative sanction.

3. Pool halls — regulation—authority op city council. — Under Kinby’s Digest, § 5438, a city council has not authority to declare a pool hall to Ihe a nuisance, when it is not such in fact, and where it is not used for gaming as covered by the statute.

4. Pool halls — regulation—nuisances—showing.—In the absence of any showing that a pool hall operated iby appellee was operated ■for the purpose of gaming, or was so conducted as to be a nuisance, a town council has no authority to pass an ordinance prohibiting the maintenance of the same.

Appeal from Yell Circuit Court, Dardanelle District; Hugh Basham, Judge;

affirmed.

Town of Dardanelle, fro se.

If the itown had the right to enact and enforce the ordinance, the subsequent granting of a license was no justification or protection. 43 Ark. 361. The necessity for regulating and the power to prohibit public places of amusement where games are played has long been recognized. 5 Ark. 412; 13 Id. 752; 16 Id. 489; 44 Id. 134; 46 Id. 497; Acts 1911, p. 62; 109 Ark. 429; Kirby’s Digest, § 5438; 70 Ark. 221; 34 Id. 372.

Bulloch & Davis, for appellee.

1. The only authority to enact the ordinance to suppress the game of pool is found in Kirby’s Digest, § 5438. It was a game alone for innocent amusement and not an instrument used for “gaming.” The ordinance is oppressive and unreasonable and not authorized by the Legislature. 20 Cyc. 671; 86 Ark. 356; 84 Ala. 13.

2. As to whether or not a thing is a suppressable nuisance is a question of fact and never of law. 14 N. E. 677; 47 N. J. Law 286; 60 Miss. 451.

3. There is no proof to show that the pool hall was a loafing place for the idle, vicious or immoral. 70 Ark. 12; 52 Id. 23, 25; 12 -S. W. 412. In this case defendant had a license from the town and the hall was not used for gaming.

Smith, J.

This cause was tried upon the following agreed statement of facts:

> *392“It is agreed by counsel representing the plaintiff and defendant that' the town of D ardan elle, prior to the arrest of the defendant herein, had enacted an ordinance prohibiting any person from keeping a pool hall or operating a pool table in the incorporated town of Dardanelle, and the mayor of the town, without the repeal of the ordinance, had issued a license to the defendant, permitting the defendant to keep a pool hall and operate pool tables therein; that said table or said pool hall was not used as a gambling device, and no gambling was allowed at the playing of the said pool games therein, but the same was carried on alone for the amusement of the customers, each of whom paid — cents for the use of the table to the owner on each game played.”

Under this agreed statement of facts the court, .sitting as a jury, found the appellee not guilty and ordered him discharged, and the town has prosecuted this appeal from that judgment.

(1) Appellee can claim no immunity under the license issued to him by the mayor. The mayor could issue no license unless some ordinance of the town authorized him so to do, and from the agreed statement of facts it appears that there was, not only no such ordinance, but that keeping a pool hall or operating a pool table was declared to be an unlawful act in said town.

(2) We think, without question, the Legislature might declare the keeping of a pool hall to be unlawful, and it might, no doubt, confer upon town councils the authority to prohibit them; but no such action can be taken by the council without legislative sanction. In re Jones, 31 L. R. A. (N. S.) 548, 109 Pac. 750. It is urged that this authority is conferred by section 5438 of Kirby’s Digest. So much of that section as is applicable here reads as follows:

(3-4) “They (town councils) shall have power to license, regulate, tax, or suppress (various occupations named) * * * billiard tables or other instruments used for gaming,” and in the same sentence there is also named tippling houses, dram shops, gaming, gambling *393houses, etc. But it has been held that the authority to license dram shops could he exercised only when this could be done without violating the laws of the State, and that “license could never be issued to authorize gambling,” because gambling was a violation of the laws of the State, and those laws are supreme. The authority here is not to tax, regulate, .or suppress billiard tables, but to tax, regulate, or suppress “billiard tables or other instruments used for gaming. ’ ’ The town council has the authority to prohibit the keeping of pool or billiard tables for gaming, but the agreed statement of facts shows that appellee’s pool hall was not kept for that purpose and that no gambling was allowed in playing games in his place. Pool halls 'and billiard parlors are uniformly held to be proper subjects for police regulation. They are places which may become nuisances, but are not such places as must necessarily be so, and the town council has no authority to declare that to be .a nuisance which is not a nuisance in fact. Arkadelphia v. Clark, 52 Ark. 23. If a pool hall or billiard parlor was so conducted as to become a nuisance the town council could order its suppression. But, not being nuisances per se, town councils would have no .authority to prohibit their maintenance, unless that authority was conferred by express legislative enactment, or unless their maintenance was made unlawful by the laws 'of the State. In the absence of any showing that appellee’s pool hall was operated for the purpose of gaming, or was so conducted as to be a nuisance, the town council would have no authority to pass the ordinance in question, and the court below, therefore, properly discharged appellee. Judgment affirmed.

Kirby, J., dissents.