City of Chariton v. Barber , 54 Iowa 360 ( 1880 )

Beck, J.

I. An ordinance of the city of Chariton provides that if any one shall, within the city, “ keep any bawdy house 'or house of ill-fame, or house of assignation, or shall lease or let any house for such purpose, or permit 'any house under his control to be so used” * * ' * * * * lio “ shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined in a sum not less than one, nor more than fifty, dollars, and costs ' of prosecution, and stand committed,” etc.

The information charges that defendant did, in violation of this ordinance, in the city of Chariton, keep a house of ill-fame. 1

The demurrer brought in question the authority of the city council to pass the ordinance. The District Court held that such authority is not conferred by the statutes of the State.

"We will proceed to consider the questions presented by counsel in argument upon this appeal.

i. MuiucirAi. Sinafiaw! oFerime.01*6 II. Code, § 456, confers upon cities power “ to suppress and restrain disorderly houses, houses of ill-lame, billiard tables, nine or ten pin alleys,- and to authorize the destruction of all instruments or devices used for the purpose of gaming.”

Code, § 482, is in these words:

“Municipal corporations shall have power to make and publish, from time to time, ordinances, not inconsistent with the laws of the State, for carrying into effect or discharging the powers and duties conferred by this chapter, and such as shall seem necessary .and proper to provide for the safety, preserve the health, promote the prosperity, improve the morals, order, comfort and convenience of such corporation and the inhabitants thereof, and to enforce obedience to such ordinances by fino not exceeding one hundred dollars, or by imprisonment not exceeding thirty days.”

The authority of the city to pass the ordinance in question, plaintiff claims, is found in these provisions, and no others are relied upon to support it.

The authority conferred by section 456 is “ to suppress and restrain” houses of ill-fame. It is insisted that the punishment of the offense of keeping such houses will tend to suppress and restrain them, and the power to punish the offense is, therefore, incidentally conferred. But this court has held that the authority conferred upon a city to suppress gambling did not authorize the punishment of keeping devices lor gambling. City of Mt. Pleasant v. Breeze, 11 Iowa, 399.

It was held that the authority was to suppress, not punish, gambling, and it must be exercised in such a way that the suppression will be the direct, not incidental, result of the application of the provisions of the ordinance. The decision is not without grave objections as to the reasons upon which it is based. ■ But it has been accepted without question or challenge for more than nineteen years. We ought not, at this late day, disturb it.

It may well be remarked that the power conferred may be exercised by ordinance which shall provide for the direct suppression of houses of ill-fame. In attaining that end the ordinance may provide for closing the houses, removing the inmates, and other like proceedings. The keepers of such houses may be made liable for the costs in such proceedings, and for fines for refusing assistance to the officers, and obedience to their lawful requirements.

x____ • III. It is insisted by plaintiff’s counsel that authority for the ordinance is found in the provision of Code, § 482, above quoted, empowering cities to make ordinances “ to improve the morals and order” of their inhabitants. There is no express authority found in the section for the cities to- punish crimes in order to improve the morals of the people.

The keeping of houses of ill-fame is surely subversive of good morals, and is a crime punishable under the laws of the State. Code, § 4013. All other crimes are subversive of good morals. The construction of the section under consideration contended for by counsel would authorize the cities to provide, by ordinances, for the punishment of all crimes. But this cannot be admitted.

The statute may be made effective by holding that it authorizes ordinances which will tend to improve the morals of tlic inhabitants, so far as their morals may be affected by houses of ill-fame, by forbidding lewd women to reside therein, by forbidding persons to visit such houses except on lawful business, and other like prohibitions. It, therefore, cannot be claimed that the interpretation of the statute insisted upon by plaintiff’s counsel is necessary in order to give it operation.

IV. Counsel for defendant insist that the legislature has not the constitutional power to confer authority upon cities to punish the commission of acts which are declared by the laws of the State to be crimes, and punishable as such. This ■constitutional question does not properly arise under the view wo take, that the statutes in question do not confer such authority upon cities. It will not. therefore, be considered.

The State v. Walls, 46 Iowa, 662, has no application to the case before us. We determined, in that case, that an ordinance of a city similar to the one under which defendant was prosecuted is not in conflict with the constitution of the -United States. The questions we have discussed in this opinion were not in that case, and the point decided therein is not now before us.

The judgment of the District Court is

Affirmed.