Matter of Ah Cheung

The petitioners were convicted for a violation of an ordinance of the city of Sacramento, which is as follows:—

We do not think that the ordinance is in violation of any of the constitutional principles invoked by petitioners, nor unreasonable and oppressive because an infringement upon ordinary personal rights. The ordinance refers only to places which are specially barred and barricaded against intrusion by officers of the law, so that illegal gambling may be protected from discovery. Rightly construed, the words “barred and barricaded” do not include an ordinary private residence or room where doors are sometimes locked or bolted in the ordinary method. Neither should it be construed to mean an attempted prevention of ordinary innocent games played with cards, dice, or dominoes. These petitioners were charged with visiting a place where the gambling implements named in the complaint referred specially to the game of fan-tan, which is made unlawful by the state law. The ordinance, therefore, was merely in furtherance of the state policy upon the subject; and, as was said in Ex parte McClain, 134 Cal. 110 , “In a reasonable exercise of its police powers a municipality may pass…

For the purpose of sustaining the constitutionality of this ordinance, I fear the court has wandered too far from its language. It seems to me the construction given it is entirely too liberal in view of the text. I can only reiterate my views as found in Ex parte Lorenzen, 128 Cal. 440 : “We only know what the intention of the board of supervisors was from what it did, and this court can only measure and test this act by what it says. ’ ’

The particular offense charged against these petitioners is a matter wholly immaterial. The question before the court bears alone upon the constitutionality of the ordinance, reading it as a whole. The opinion declares: “Neither should it be construed to mean an attempted prevention of ordinary innocent games played with cards, dice, or dominoes. These petitioners were charged with visiting a place where the gambling implements named in the complaint referred specially to the game of fan-tan, which is made unlawful by the state law. The ordinance, therefore, was merely in furtherance of the state policy upon the subject.” Upon reading the language of the ordinance, I see no sufficient justification in law for the construction here given it. As…