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 already stated, there is no question before the court as to the validity of the particular charge made against these petitioners. The real question is, What does the ordinance provide Í If the ordinance only purported to deal with implements used in the game of fan-tan,—-a game prohibited by the state law,— probably it would be constitutional, but to so construe the ordinance, as the opinion does, is to close our eyes to its plain language. In the face of the language of the ordinance how can this court say, “Neither should it be construed to mean an attempted prevention of ordinary innocent games played with cards, dice, or dominoes ”1 For the language of the ordinance is: “Where any cards, dice, dominoes, fan-tan table or layout, or any part of such layout . . . are exhibited,” etc. When the ordinance uses the words, “fan-tan table or layout, or any part of such layout, ’ ’ the subject-matter of fan-tan in the ordinance is exhausted. And it is thus apparent that the words “cards, dice, and dominoes,” do not refer to the implements used in playing the game of fan-tan. Indeed, the court is bound to take judicial notice of the fact that neither cards, dice, nor dominoes are implements used in playing that game. It seems naturally to follow that the ordinance as a whole was not enacted in furtherance of a state policy prohibiting the playing of the game of fan-tan. And the ordinance being unconstitutional as to part, is unconstitutional as to all. For the constitutional and unconstitutional parts are too closely connected for segregation.

79 Am. St. Rep. 47 .