ERROR TO THE SUPREME COURT OF THE STATE OF OHIO.
Taft, Holmes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Sanford, Stone
MR. JUSTICE STONE delivered the opinion of the Court.
An ordinance, No. 76-1918, of the City of Cincinnati, requires the licensing of pool and billiard rooms, and prohibits the issue of licenses to aliens. Plaintiff in error petitioned the Supreme Court of Ohio for a writ of mandamus commanding defendant in error, the auditor of Cincinnati, to grant him a license to conduct a billiard and pool room in that city. The petition alleged that plaintiff was a subject of the King of England and that he had been refused a license solely because he was not a citizen. It drew in question the validity of the ordinance as violating Art. I of the treaty between Great Britain and the United States of July 3, 1815, 8 Stat. 228; August 6, 1827, 8 Stat. 361; 1 Malloy, Treaties, 624, 645, and as denying the equal protection of the laws guaranteed by the Fourteenth Amendment.
Defendant answered, traversing the allegation of citizenship, and asserting that billiard and pool rooms in the City of Cincinnati are meeting places of idle and vicious persons; that they are frequented by lawbreakers and other undesirable persons, and contribute to juvenile delinquency; that numerous crimes and offenses have been committed in them and consequently they require strict police surveillance; that non-citizens as a class are less familiar with the laws and customs of this country than native born and naturalized citizens; that the maintenance of billiard and pool rooms by them is a menace to society and to the public welfare, and that the ordinance is a reasonable police regulation passed in the interest of and for the benefit of the public.
On plaintiff's motion, the Supreme Court of Ohio gave judgment on the pleadings, dismissing the petition. 113 Oh. St. 347. In an earlier case, State ex rel Balli v. Carrel, 99 Oh. St. 285, it had held that the ordinance in question did not deny any rights guaranteed by the Federal Constitution. The case comes here on writ of error, Jud. Code, § 237 as amended, the plaintiff renewing here the contentions made below.
At the outset defendant insists that plaintiff has not established that he is entitled to the benefit of the treaty since his allegation of citizenship is not admitted on the face of the pleadings. But the Supreme Court of Ohio has construed the pleadings as sufficient to draw in question the validity of the ordinance under the treaty. Hence we need not concern ourselves with those refinements of the local law of pleading which, it is said, enable defendant to justify his refusal to issue a license because of plaintiff's assertion of British citizenship, and at the same time deny that plaintiff has established citizenship entitling him to the protection of the treaty. See Forsyth v. Vehmeyer, 177 U.S. 177, 180; Allen v. Alleghany Co., 196 U.S. 458, 465, 466; Atlantic Coast Line R. R.
v. Mims, 242 U.S. 532, 535; Nevada-California-Oregon Ry. v. Burrus, 244 U.S. 103; Lee v. Central of Georgia Ry., 252 U.S. 109.
The application of the treaty to the present case requires but brief consideration. As stated in the title its purpose is "to regulate the commerce" between the two countries. Article I, which it is said affords the protection against the present discrimination, is printed in the margin.*fn1 It guarantees "reciprocal liberty of commerce" between the territories of the signatories. The privileges secured by it to the inhabitants of the two countries, so far as relevant to the present controversy, pertain to and are intended to facilitate commerce. The clause suggested as pertinent reads: "and, generally, the merchants and traders of each nation, respectively, shall enjoy the most complete protection and security for their commerce." Even if assumed, as argued, that the proprietor of a pool room may for some purposes be regarded as engaged in a trade, the word being used as synonymous with occupation or employment, he does not engage in commerce within the meaning of a treaty which merely extends to "merchants and traders" "protection and security for their commerce." See Bobe v. Lloyds, 10 Fed. 2d 730, 734. It would be an extravagant application
of the language quoted to say that it could be extended to include the owner of a place of amusement who does not necessarily buy, sell or exchange ...