Bills v. City of Goshen

• Decision Date: 01 February 1889
• Citation: 20 N.E. 115,117 Ind. 221
• Parties: Bills v. City of Goshen.
• Court: Indiana Supreme Court

117 Ind. 221

20 N.E. 115

Bills

v.City of Goshen.

Supreme Court of Indiana.

February 1, 1889.

Appeal from circuit court, Elkhart county; J. D. Osborne, Judge.

Action by the city of Goshen against Chandler D. Bills, for the violation of an ordinance. Defendant appeals.H. C. Dodge and Johnson & Herr, for appellant. J. A. Simmons and Baker & Defrees, for appellee.

Olds, J.

On the 19th day of January, 1885, the common council of the city of Goshen passed the following ordinance:

“Ordinance No. 55.

In Relation to Licensing Shows and Other Amusements.

Section 1. It shall not be lawful for any person to own, conduct, or manage, for gain, within the city, any theater, circus, caravan, roller-skating rink, or other exhibition, show, or amusement, or exhibit any natural or artificial curiosities or panorama, or other show or device of any kind, or give any concert or any other musical entertainment, without a license: provided, that for musical parties or concerts, and exhibitions of paintings and statuary, given or made by citizens of this city, no license shall be required, and also lectures on historical, scientific, benevolent, or literary subjects, and the apparatus for the elucidation of the same, and the specimens of fine art, shall be deemed within this proviso.

Sec. 2. License shall be granted by the mayor upon written application of any one, for any of the purposes aforesaid, upon the payment into the city treasury of such sum of money as the mayor or common council shall determine in such particular case: provided that, for a circus or animal show or caravan, the license shall not be granted for a less sum than ten dollars.

Sec. 3. Any person that shall violate any of these provisions of this ordinance, or who shall refuse or fail to comply with any or either the requirements thereof, shall be fined in any sum not exceeding one hundred dollars and costs.

Sec. 4. This ordinance shall take effect and be in force from and after its passage and publication for two consecutive weeks in the Goshen Times.”

On the 9th day of February, 1885, the following further proceedings were had by the common council: “Councilman Drake moved that the license fee for skating-rinks be fixed at one hundred and fifty dollars per annum, and that the manager of the rink be required to pay that amount; his license to date from Monday, February 16, 1885. The motion was seconded by Coundman Scott, and carried. Councilman Drake moved that the manager of the rink be required to pay his license in two installments, semi-annually in advance, which motion was carried.”

On the 5th day of March, 1886, this action was commenced before one E. L. Billings, who was the then acting mayor of the city, charging appellant with a violation of section 3 of this ordinance. A conviction was had, and appealed to the circuit court, and there an amended complaint was filed, setting out in such amended complaint the ordinance, and the action taken by the common council, as hereinbefore set out, and alleging that the appellant was engaged in said city in managing, running, and operating a roller-skating rink, for hire and gain, on and prior to the 16th day of February, 1885; that the city offered to him a license duly issued, and demanded of him the first payment; that the appellant refused to pay and accept the license; and charging that he violated sections 1 and 3 of the ordinance on the 16th day of February, 1885, in that he did then and there unlawfully, for gain, own, conduct, operate, and manage a roller-skating rink without having first obtained a license. Appellant filed a demurrer to the complaint for cause that the complaint did not state facts sufficient to constitute a cause of action, which demurrer was overruled by the court, to which ruling appellant at the time excepted. Appellant then filed an answer, to which answer appellee demurred, and the demurrer was sustained, and appellant excepted. Errors are assigned on the ruling of the court on the demurrers to the complaint and answer.

The question presented and argued is as to the validity of the ordinance.

Section 3099, Rev. St. 1881, declares: “All by-laws and ordinances shall, within a reasonable time after their passage, be recorded in a book kept for that purpose, and shall be signed by the presiding officer of the city, and attested by the clerk.”

Section 3106, defining the powers of the common council, provides: “They shall have the management and control of the finances of the city, and of all property, real and personal, belonging thereto, and shall have the additional powers herein permitted, and may make and publish by-laws and ordinances necessary to enforce the same. The common council shall have the power to enforce ordinances.” The fourteenth subdivision of the section is as follows: “ Fourteenth. To regulate and restrain all tables, alleys, machines, devices, or places of any kind, for sports or games, kept for hire or pay, or to prohibit the use of the same as aforesaid, if deemed expedient, without a license being first obtained therefor; and, if deemed necessary to preserve peace, good order, and morality, to prohibit the use of the same as aforesaid, by the infliction of such penalties as this act will permit, to be provided for by ordinance. Fifteenth. To regulate and restrain all theatrical and other exhibitions and public shows for which money is demanded or received, and, if deemed expedient, to prohibit the same without a license having been first obtained therefor.”

It is by virtue of these sections of the statute that the city is given whatever power and right she has to regulate games and sports, and prohibit the same without license, and to provide for licensing the same. Section 3100 declares: “Every by-law imposing a penalty or forfeiture for the violation thereof shall, before the same shall take effect, be published two weeks consecutively in some newspaper printed in the city.”

The words “ordinances” and “by-laws” are used interchangeably in the statute, and they are synonymous. Horr. & B. Mun. Ord. § 1, defining “ordinances,” says: “Municipal ordinances are laws passed by the governing body of a municipal corporation for the regulation of the affairs of the corporation. The term ‘ordinance’ is now the usual denomination of such acts, although in...