City of Des Moines v. Reisman

• Decision Date: 07 May 1957
• Docket Number: No. 49137,49137
• Citation: 248 Iowa 821,83 N.W.2d 197
• Parties: CITY OF DES MOINES, Iowa, Appellant, v. Kenneth Lee REISMAN, Appellee.
• Court: Iowa Supreme Court

Page 197

83 N.W.2d 197

248 Iowa 821

CITY OF DES MOINES, Iowa, Appellant, v. Kenneth Lee REISMAN, Appellee.

No. 49137.

Supreme Court of Iowa.

May 7, 1957.

I. Joel Pasternak, Asst. City Sol., Des Moines, for appellant.

SMITH, Justice.

Section 9-28 of the 1954 Des Moines Municipal Code provides in part: '* * * it shall be unlawful for a person under twenty-one years of age to be in, or for any person to permit a person under the age of twenty-one years to be in, a place where beer is sold unless the major portion of the business conducted by the permit holder is other than the sale of beer and the sale of beer is merely incidental thereto.' (Emphasis supplied.)

Defendant was on July 14, 1956, in a tavern on East 30th Street, in the city of Des Moines, with two companions who so testified upon trial of defendant charged with violation of said ordinance. Defendant himself testified 'I am twenty years old. I was twenty years old on April 3rd. I was married on June 16, 1956 * * *. My wife lives with me and is now present in the court room.' He made no denial of the factual charge and testimony against him.

He was acquitted in Municipal Court, the decision being based on section 599.1 of the Iowa Code 1954, I.C.A., which provides: 'The period of minority extends to the age of twenty-one years, but all minors attain their majority by marriage, and females after reaching the age of eighteen years may make valid contracts for marriage the same as adults.' (Emphasis supplied.)

Thereupon the City appealed to the district court with the same result and has now appealed to this court, being desirous of getting a final pronouncement upon the validity of its ordinance. Defendant-appellee has not appeared and of course, being acquitted, will not be affected by a decision either way.

We have the one single, legal proposition: Is the city ordinance applicable to and enforceable against a married person 'under twenty-one years of age?' But it involved several inquiries: 1. Does Code section 599.1 or any other section operate to emancipate by reason of marriage in cases of this kind? 2. Is it within the city's police power, regardless of the question of emancipation, to deny married people under twenty-one access to taverns? And 3. Does the language of the ordinance apply to such married people?

Defendant has filed no brief and written argument. But the abstract sets out for our assistance the district court's ruling and the relevant cited statutes and considerations leading to the court's conclusion: 'That it was not the intention of the legislature to permit cities and towns to pass an ordinance making it illegal for a married person under the age of twenty-one years to enter a tavern * * * and the ordinance * * * cannot be sustained as a legitimate exercise of police power * * * to the extent that it prohibits married persons * * * to be in taverns * * *.'

The trial court also refers to code sections other than 599.1 which we shall mention later.

I. Code section 599.1 is found in Title 28 of the Code which deals with the subject of 'Domestic Relations' and in chapter on 'Minors.' The chapters in the Title cover 'Marriage,' 'Physical Requirements for Marriage Licenses,' 'Husband and Wife,' 'Divorce and Annulment of Marriage,' 'Minors' and 'Adoption.'

Its interest for us here is its provision that 'all minors attain their majority by marriage.' But unfortunately for defendant's contention the majority it speaks of is of a quite different sort. The only case we find in Iowa remotely involving a contention that marriage had resulted in majority, for purposes of criminal or juvenile jurisdiction is McPherson v. Day, 162 Iowa 251, 144 N.W. 4. The contention was denied.

It serves to show code section 599.1 does not define 'majority' for cases of this sort. In this Iowa agrees with the weight of authority. See Annotations 19 A.L.R. 616; 49 A.L.R. 402; Jones v. Jones, 63 App.D.C. 373, 72 F.2d 829, 95 A.L.R. 352; In re Hook (Bagley), 95 Vt. 497, 115 A. 730, 19 A.L.R. 610. We find the Montana Court in State ex rel. Foot v. District Court, 77 Mont. 290, 250 P. 973, 974, 49 A.L.R. 398, says:

'Although marriage may, and under our statute does, emancipate a child from parental authority, it has otherwise little effect (Bool v. Mix, 17 Wend. 119, 31 Am.Dec. 285), the disabilities of infancy remain in the absence of express statutory provision (31 C.J. 1009); in other words, while marriage releases a child from parental authority, it does not change the status of a child from that of a minor to that of an adult within the meaning of statutes defining those terms, unless some statute expressly so provides (see Trammell v. Trammell, 20 Tex. 406; [Inhabitants of] Taunton v. [Inhabitants of] Plymouth, 15 Mass. 203; Austin v. Austin, 167 Mich. 164, 132 N.W. 495, Ann.Cas.1913A, 545).' See 43 C.J.S. Infants § 29; 27 Am.Jur., Infants, § 5n.7.

It is to be said the ordinance, quoted and involved here, even avoids use of the terms 'minority' and 'majority'. 'It shall be unlawful for a person under twenty-one years of age * * *.' The ordinance certainly does not indicate the city meant the terms 'minority' and 'majority' as used in the code section 599.1, supra. It does not profess to make it unlawful for a minor, as such, to be in a tavern. It is not because he is a minor, but because he is under 'twenty-one.'

We are cited to no decision of this court (nor for that matter to a decision from any other state) applying the statutory or common law civil concepts of minority and emancipation to criminal cases. Certainly defendant, by marriage, did not cease to be a 'person under twenty-one years of age.'

II. The district court cites three other code sections, 123.43, 124.20, and 124.34 in another part of the Code relating to Alcoholic Beverages, the first found in the 'Iowa Liquor Control Act,' the other two in the chapter on 'Beer and Malt Liquors.'

Section 124.20 provides: 'It shall be unlawful * * * for any minor to buy or attempt to buy or to secure or attempt to secure beer from any person * * *;' and section 124.34 (in the same chapter): 'Cities and towns are hereby empowered to adopt ordinances for the enforcement of this chapter * * * and are empowered to adopt ordinances, not in conflict with the provisions of this chapter, governing any of the activities in matters which may affect the sale and distribution of beer under class 'B' permits and the welfare and morals of the community involved.'

Code section 123.43 in the Liquor Control Act, on the other hand, forbids (with certain exceptions) the selling, giving or otherwise supplying of liquor 'to any such person under the age of twenty-one years' or knowingly permitting 'any person under that age to consume alcoholic liquors.'

The court points out that under the 'Beer and Malt Liquor' law the legislature refers to minors in its grant of power to municipalities to legislate; whereas in the 'Liquor Control Act' no such legislative power is expressly given and the prohibition is to 'persons under the age of twenty-one years.'

From these sections and section 599.1 the court deduces the legislature meant the word 'minor' in the Beer and Malt Law and the expression 'person under the age of twenty-one' in the 'so-called whiskey statute' (meaning the Liquor Control Act); and concludes the intention, 'examining the statutes with the view to reconciling them, and upon reading section 599.1 which is pari materia,' was to forbid 'supplying liquor to any person under the age of twenty-one years and 'if the legislature in the beer statute had meant to forbid a person under twenty-one * * * to enter a place where beer is sold they (sic) would have said so in so many words, that is, used the expression 'under twenty-one years of age" in section 124.20.

We cannot agree with this theory. We need not stress the difference in wording between the sections in chapters 123 and 124. Section 124.34 is broader in scope than such reasoning implies. It not only authorizes cities and towns to adopt ordinances 'for the enforcement of this chapter * * * not in conflict' therewith, but it expressly empowers enactment of ordinances 'governing any other activities or matters which may affect * * * the welfare and morals of the community involved.'

It would have been much easier, had the legislature so intended, and more simple and normal to have expressly provided in chapter 124 for emancipation by marriage for its purposes as was done for civil purposes in code section 599.1.

Nor do we deem the ordinance in question here in 'conflict with the provisions' of the Beer and Malt Liquors chapter 124, even in absence of the concluding broad authorization in section 124.34. The chapter contains no limitation upon the discretion of the municipal council or power of the city in regulation of the taverns without respect to the married status of minors who desire to enter them. Section 124.34 purports to grant but not to limit the municipal power of regulation.

III. We shall spend no time upon argument as to the wisdom of the ordinance, when applied to married persons under twenty-one years of age. Opinions differ--differ more emphatically doubtless as the dividing age line is reached. Certainly most persons will agree that 'the welfare and morals of the community' at some point justifies exclusion of young persons from taverns.

Whether the test be the rigid common law age of twenty-one, as in civil matters such as parental control, liability on contract, etc; or whether the age test be further lowered by marriage or other manner of emancipation, is within the sound discretion of the municipal council in its legislative capacity.

We find no abuse of discretion in the enactment of the ordinance. Marriage of persons at extremely early ages is not uncommon. Termination of the ban on entering taverns at the age some marry would be as unreasonable to some--perhaps most--as would be extending it to twenty-one...