City of Chariton v. Fitzsimmons

• Decision Date: 24 January 1893
• Citation: 54 N.W. 146,87 Iowa 226
• Parties: CITY OF CHARITON, Appellant, v. S. A. SIMMONS, Appellee; SAME, Appellant, v. THOS. FRAZIER et al., Appellees
• Court: Iowa Supreme Court

54 N.W. 146

87 Iowa 226

CITY OF CHARITON, Appellant, v. S. A. SIMMONS, Appellee;

SAME, Appellant, v. THOS. FRAZIER et al., Appellees

Supreme Court of Iowa, Des Moines

January 24, 1893

Appeals from Lucas District Court.--HON. W. I. BABB, Judge.

THE defendants were arrested upon warrants issued by the mayor of the plaintiff city upon informations charging them with violating an ordinance of the city. The defendants were taken before the mayor, and entered pleas of not guilty. A trial was had, and they were found guilty, and judgment was entered against each of them in the sum of ten dollars and costs. They appealed to the district court, where, by agreement, the pleas of not guilty were withdrawn, and the defendants demurred to the informations. The demurrer was sustained, and the plaintiff city appeals.

Reversed.

W. B Barger and T. M. Stuart, for appellant.

The clear intent of the first section of said ordinance is to prevent the unreasonable obstruction of public streets and sidewalks, to the injury of others. The intent of the second section is to prevent all persons and all organizations from creating unusual noises in the streets and upon the sidewalks for an unreasonable length of time, and to protect the person and property of others from the menaced danger attending the making of such unusual noise at certain times and at certain places in the public streets. Cities have the right to legislate upon this subject. McClain's Code, sections 615, 726; Des Moines Gas Company v. Des Moines, 44 Iowa 505. That the ordinance vests in the mayor and marshal the discretion of determining when the circumstances exist which would render such order proper, does not render the ordinance invalid. The order or decision of the mayor is not absolute or final. Certain facts must exist before such order is authorized, and the defendant, who is charged with a violation of this ordinance may show in defense, that the order of the mayor was not authorized. Commonwealth v Davis, 4 N.E. (Mass.) 577; Veneman v. Jones, 118 Ind. 41. The ordinance in question is reasonable in its provisions; Roderick v. Whitson, 51 Hun, N. Y. 620; Commonwealth v. Plaisted, 148 Mass. 375; State v. Cantieny, 24 N.W. 458; State v. Holcomb, 68 Iowa 107; 1 Dillon on Mun. Corp. sections 420, 379; Mashburn v. City of Bloomington, 32 Ill.App. 245.

J. C. Mitchell and Warren S. Duncan, for appellees.

The ordinance in question is unreasonable. Dillon on Mun. Corp. [3 Ed.], section 329. The city has no authority to delegate its power to the mayor or marshal. The council has no power to make the refusal to obey the mayor or marshal a misdemeanor. The ordinance must itself define the act made a misdemeanor; otherwise the citizen can not know that he is committing an unlawful act. There is no penalty affixed by the ordinance to any act forbidden therein, except the act of not ceasing to march upon the order of the mayor or marshal. "The powers vested in municipal corporations should, as far as practicable, be exercised by ordinances general in their nature, and impartial in their operation." Dillon on Mun. Corp. [3 Ed.], section 322; Mayor v. Winfield, 8 Hamp. (Tenn.) 767. In Mayor of Baltimore v. Radocke, 49 Md. 217; 33 Am. Rep. 239, the defendant was operating a steam engine, under a permit from the city council. The resolution granting this permit contained a provision, in conformity with a city ordinance on the subject, that the engine was "to be removed after six months' notice to that effect from the mayor." The court says: "An ordinance, which clothes a single individual with such power, hardly falls within the domain of law, and we are constrained to pronounce it inoperative and void. " "General powers of this character, without more, do not enable a town council to carry out any unreasonable ideas of general good government, and to impose penalties for the doing of things which are not prohibited by any public statute, nor by the common law." Dillon on Mun. Corp. [3 Ed.], section 393; Wythe v. Mayor of Nashville, 2 Swan's Rep.; Frazee's case, 30 N.W. 72; Anderson v. The City of Wellington, Pac. Rep., November 19, p. 719. In the case of Commonwealth v. Plaisted, 148 Mass. 375, quoted by appellants, the validity of the ordinance was not questioned. In Trotter v. The City of Chicago, 33 Ill.App. 15, it is held, that there was no legal question involved in Mashburn v. City of Bloomington, 32 Ill.App. 245, relied on by appellant.

OPINION

ROTHROCK, J.

The ordinance under which the arrests were made and trial had was, by agreement, made part of the record, and the demurrer was sustained upon the ground that the ordinance was invalid. The ordinance in question, so far as it pertains to the question involved, is as follows:

"First. That the collection or congregation of persons upon the streets or sidewalks of the city, and the marching or movement of persons in crowds or processions thereon, at such times and places, and in such numbers and manner, as to obstruct or impede public travel thereon, or to injuriously affect or interfere with the business of any person or persons on such streets is hereby prohibited and it is hereby made the duty of the mayor and city marshal to order all such congregations or processions of persons to quietly disperse; and the failure or refusal of any person or persons to promptly obey such order of the mayor or city marshal shall be deemed a misdemeanor, and, upon conviction thereof, such person or persons shall be fined in any sum of not less than one dollar and not more than fifty dollars, in the discretion of the court, and shall be imprisoned in the county jail until such fines and costs of prosecution are paid.

"Second. That the making of any noise upon the streets or sidewalks of the city, by means of musical instruments or otherwise, of such character and extent, and at such times and places as would likely cause horses and teams to become frightened and ungovernable, or of such character, extent and duration as to annoy and disturb others, is hereby prohibited; and it is hereby made the duty of the mayor and city marshal to order any person or persons making such noise to desist therefrom and the failure or refusal of such person or persons to promptly obey...