IV. A licensed business cannot be adjudged a nuisance, even if it is in its nature against public policy or against the highest standard of public morality: State v. Mosly, 14 Ala. 390; State v. Alaire, 14 Fla. 435; State v. Jones, 26 Ala. 155; State v. Hawkins, 33 Ala. 433; Hinchman v. Patterson, 17 N. J. Eq. 77; Davis v. Mayor, 14 N. Y. 506 (67 Am. Dec. 186); State v. Overby, 18 Fla. 178; State v. Stearne, 21 Tex. 695; State v. Houghton, 41 Tex. 136; Transportation Co. v. Chicago, 99 U. S. 635; Rutherford v. State, 45 S. W. 579.

Where the offense charged belongs to criminal nuisances, as understood at common law, we have no such section or provisions. The absence of them is what reduces the State to the necessity of trying to read into Section 1930 that the offenses it enumerates are common nuisances, as defined at common law, to sustain the indictment, charging the defendant with maintaining a public nuisance. As this section has no common law word, or definition, no description or specification of a common law offense, no words indicating an intention to adopt the common law, as to indictable nuisances, it cannot have read into it by construction a common law offense, or other offense than its language describes in its ordinary meaning. Upon the wording of the section it is not possible to predicate a common law nuisance; that can only be done, if it can be done at all, by the legislature amending the section declaring the offenses to be public nuisances. We feel that we are entitled to a reversal on the broad ground that our Section 1930, of B. & C. Comp. does not, either in terms or by description of the offense, adopt or re-enact the common law against criminal nuisances, and that the words of the statute cannot be extended by construction so as to include it.

For the State there was an oral argument by Mr. Andrew M. Crawford, Attorney General, and Mr. Henry E. McGinn, with a brief over the names of Mr. Crawford, Mr. John Manning, District Attorney, and Mr. McGinn, to this effect.

1. Horse racing is a game within the meaning of Section 1944, B. & C. Comp., where a contrivance, such as a blackboard, or a "Paris Mutual" or "French Pool" machine is employed to enable one to bet more intelligently or safely, and lessen the

chances of disaster to himself. A device is included in the expression "any other device" of Section 1944: 14 Am. & Eng. Enc. Law (2 ed.), 682; Swigart v. People, 154 Ill. 284, 290 (40 N. E. 432); Commonwealth v. Simonds, 79 Ky. 618; People v. Weithoff, 51 Mich. 203 (47 Am. Rep. 557, 16 N. W. 442); Miller v. United States, 6 App. Cas. D. C. 6; People v. Weithoff, 93 Mich. 631 (32 Am. St. Rep. 532, 53 N. W. 784); Tallett v. Thomas, Law R. 6 Q. B. 514, 521. Opposed is State v. Shaw, 39 Minn. 153, 154, criticised in 14 Am. & Eng. Enc. Law (2 ed.), 709.

2. Section 1930, B. & C. Comp., is a re-enactment of the common law on the subject of "public nuisance" in the particulars specified, to-wit, public health, public peace, and public morals. Whatever therefore could be punished at common law, because of its tendency to grossly disturb the public peace, or the public health, or openly outrage the public decency and to injure public morals can be punished under our statute: State v. Bertheol, 6 Blackf. 474 (39 Am. Rep. 442); Burk v. State, 27 Ind. 430; State v. Taylor, 29 Ind. 517; State v. Berdetta, 73 Ind. 185 (38 Am. Rep. 117); Western Union Tel. Co. v. Scircle, 103 Ind. 227 (2 N. E. 604); State v. Friend, 47 Minn. 449 (50 N. W. 692); United States v. Jones, 3 Wash. (C. C.), 209; Sutherland, Stat. Const. §§ 247, 253; Endlich, Interp. Stat. §§ 3 and 75.

3. To learn the meaning of such phrases as "grossly disturbs the public peace" or "openly outrages the public decency and is injurious to public morals" one turns to the common law of nuisance, and there finds that from time immemorial the keeper of a gaming house was guilty of maintaining a public nuisance and was punishable as such, though what was carried on in the gaming house may in itself be innocent and not prohibited by law, and the reasons assigned by the common law judges and writers were that the keeping of such places tended to disturb the public peace, to outrage decency and to injure public morals: 1 Hawkins, Pleas of the Crown (Curwood's ed.), 693, §§ 6 and 7: 1 Bishop, New Crim. Law. § 1135; 14 Am. & Eng. Enc. Law (2 ed.), 697; Thrower v. State, 117 Ga. 753 (45 S. E. 126); Jenks v. Turpin, 13 Q. B. D. 505; Thatcher v. State, 48 Ark.

60 (2 S. W. 343); Vanderworker v. State, 13 Ark. 700; King v. People, 83 N. Y. 587; State v. Mosby, 53 Mo. App. 571; Lord v. State, 16 N. H. 325, 330 (41 Am. Dec. 729); State v. Black, 94 N. C. 812; State v. Bertheol, 6 Blackf. 474 (39 Am. Rep. 442); State v. Haines, 30 Me. 65; People v. Jackson, 3 Denio, 101; State v. Layman, 5 Har. (Del.), 510; State v. Williams, 30 N. J. L. 104; Commonwealth v. Cobb, 120 Mass. 356; Cheek V. Commonwealth, 79 Ky. 359; Bohlinger v. Commonwealth, 98 Ky. 574; Commonwealth v. Cheek, 100 Ky. 1.

4. The city has no authority to license pool rooms, its power is limited to preventing and suppressing gaming and gambling houses: Odell v. City of Atlanta, 97 Ga. 670; Schuster v. State, 48 Ala. 199; State v. Caldwell, 3 La. Ann. 435; 14 Am. & Eng. Enc. Law (2 ed.), 696, note 7.

The fact that the morality clause of our statute has been most frequently considered in cases where offenses directed against modesty and chastity were under consideration seems to have created the impression that to punish such offenses was the only office of that clause; but the impression is a very erroneous one. "Chastity is not the only form of morality protected by the common law," says Bishop. The erection of mountebank's stages, gaming, and other disorderly houses, cock fighting, drunkenness and sepulture are instances cited to show that the punishment of offenses against modesty and chastity is not the only purpose of the common law: Bishop, New Crim. Law, § 504, 505, 506; Kanavan's Case, 1 Greenleaf, 226.

Our conclusion, then, is that whatever could be punished at common law, because of its tendency to disturb the public peace, or because of its tendency to injure the public morals, may now be punished under the two clauses of Section 1930 of B. & C. Comp., which we have considered in this brief, unless it be that the legislative assembly, by some specific enactment on a subject which was formerly covered by Section 1930, B. & C. Comp., has by a subsequent statute shown an intention to so completely cover the subject treated as to leave no doubt that it intended to repeal pro tanto the right to punish under Section 1930. It will not be claimed that there is any specific law in Oregon punishing the keeper of either a gaming or a gambling

house, the legislature has legislated against games, but not against keepers of gaming houses. It must follow, therefore, that the keeper of a common gaming house is indictable as the keeper of a common nuisance under Section 1930, B. & C. Comp., precisely as he was at common law.

MR. JUSTICE BEAN delivered the opinion of the court.

The defendant was indicted for willfully committing an act which grossly disturbs the public peace, openly outrages the public decency, and is injurious to the public morals, in that he, viz:

"On the 20th day of October, A. D. 1904, and thence continuously until the 1st day of November, 1904, ** did then and there, for gain, habitually sell pools upon horse races, and habitually procure idle and evil-disposed persons to come to his house to buy pools and to bet upon horse races, to the common nuisance and annoyance of all good citizens," etc.

He had previously obtained from the City of Portland a license to conduct a pool room. The trial court held that the license was no protection, and refused to direct an acquittal of the defendant. He was consequently convicted and appeals.

1. The evidence shows that he was the keeper and proprietor of what is called a "turf exchange," or pool room, on one of the principal thoroughfares in the city, at which persons daily congregated for the purpose of betting upon horse races run in other states, and reported to him by telegraph. The odds on every horse in any race of importance about to be run, as made at the race course, were reported to the defendant before the race, and posted for the information of the public on a blackboard in the room used by him. A person desiring to bet would select a horse, pay the amount of his bet according to the odds appearing on the blackboard, and receive from the defendant a ticket showing the sum to which he would be entitled in case the horse selected by him won. As soon as the race was run the result would be immediately telegraphed to the defendant, and he would pay the amount coming to the holders of tickets on the winning horse, less a certain per cent as commission. That such a house is a gaming or gambling house, and punishable as a nuisance at common law, whether betting on a horse

race is a crime or not, has so often and uniformly been held by the courts that it is no longer open to discussion. There is no dissent in the adjudged cases, and it is unnecessary to do more than cite the authorities: McBride v. State, 39 Fla. 44% (22 South. 711); Thrower v. State, 117 Ga. 753 (45 S. E. 126), Swigart v. People, 154 Ill. 284 (40 N. E. 432); Swigart v People, 50 Ill. App. 181; Cheek v. Commonwealth, 79 Ky. 359; People v. Weithoff, 51 Mich. 203 (16 N. W. 442, 47 Am. Rep. 557); People v. Weithoff, 93 Mich. 631 (53 N. W. 784, 32 Am. St. Rep. 532); McClean v. State, 49 N. J. Law, 471 (9 Atl. 681); Miller v. United States, 6 App. D. C. 6.

2. By its charter the City of Portland is authorized to "prevent and suppress gaming and gambling houses," but not to make such places lawful by licensing them: Schuster v. State, 48 Ala. 199.

3. Nor, as we understand it, are these positions seriously controverted by the defendant, but his contention is that there is no law in this State for the punishment of the keeper of a common gaming house; that, although the statute makes certain kinds of gambling a crime, and punishable as such (B. & C. Comp. § 1944), and provides for the punishment of the owner of a building who suffers or permits gambling to be carried on therein (B. & C. Comp. § 1949), it does not make the keeping of a gambling house unlawful, or provide for the punishment of a keeper or proprietor thereof. Now, there is no statute providing specifically for such an offense, nor have we any common law offenses, as such: State v. Vowels, 4 Or. 324; State v. Gaunt, 13 Or. 115 (9 Pac. 55). But Section 1930 provides "If any person shall willfully and wrongfully commit any act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages the public decency and is injurious to the public morals, such person, if no punishment is expressly prescribed therefor by this Code, upon conviction thereof, shall be punished by imprisonment in the county jail not less than one month nor more than six months, or by fine not less than fifty nor more than two hundred dollars." This section is a part of the original Criminal Code reported to and adopted by the legislature in October,