City of Watertown v. Meseberg, 10232
| Decision Date | 15 July 1966 |
| Docket Number | No. 10232,10232 |
| Citation | 144 N.W.2d 42,82 S.D. 250 |
| Parties | CITY OF WATERTOWN, a Municipal Corporation, Plaintiff and Respondent, v. Mae MESEBERG, Defendant and Appellant. CITY OF WATERTOWN, a Municipal Corporation, Plaintiff and Respondent, v. Delores MESEBERG, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Beardsley, Osheim & Wagner, Watertown, for appellants.
Dean Summer, Watertown, for respondent.
These defendants were charged with becoming barmaids in violation of an ordinance of the City of Watertown. Pursuant to stipulation the controversy was heard by the trial court, without a jury, on an agreed statement of facts. The court denied their motions to dismiss and found them guilty after which a fine of $25 was imposed on each of them. They appeal.
In their assignments of error they claim that the ordinance in question is (1) unconstitutional because of its vagueness and uncertainty; (2) that it is invalid as an exercise of municipal power in excess of the power granted to the municipalities of this state; and (3) it is unconstitutional because it denies them equal protection of the laws in contravention of the Fourteenth Amendment to the Constitution of the United States. These same grounds were urged in the trial court in support of their motions to dismiss.
The conduct which occasioned the prosecution of the defendants is set forth in these two paragraphs of the statement of facts:
'That neither of the Defendants are employees of the Canteen Bar but at the time of the alleged offense were assisting their husbands in the operation of said business because of the shortage of regular employees.'
The ordinance which it is claimed the defendants violated provides as follows:
'No woman or girl shall be employed in any place of business where intoxicating liquor is sold 'on sale', or be permitted to be connected in any way, directly or indirectly, with the sale or serving of intoxicating liquor, non-intoxicating beer, or any other article or commodity sold in such place of business'.
The complaint against the defendants charged them with becoming employed in a place of business where intoxicating liquor is sold on sale. In regulations of this type the word 'employed' embraces all persons whose services are utilized in furtherance of the licensed business notwithstanding the absence of a technical employer-employee relationship. Kravis v. Hock, 137 N.J.L. 252, 59 A.2d 657.
It is to be noted that the language of the ordinance is in the alternative. The first statement of the proscription is that no woman or girl shall be employed in any place of business where intoxicating liquor is sold on sale. Second, no woman or girl shall be permitted to be connected in any way, directly or indirectly, with the sale or serving of intoxicating liquor, non-intoxicating liquor, non-intoxicating beer, or any other article or commodity sold in such place of business. In claiming that the ordinance is unconstitutional because of vagueness or uncertainty the defendants direct their attack to the second statement of the offense. But these defendants are not charged with violating that portion of the ordinance; nor could they be because it condemns only the one who permits a woman or girl to be connected in any way therewith.
Since they are not being prosecuted under this portion of the ordinance they may not urge its invalidity in this proceeding. State v. Perry, 269 Minn. 204, 130 N.W.2d 343. In 62 C.J.S. Municipal Corporations § 433 at page 828 appears the following statement, 'one prosecuted for violation of one section of an ordinance may not attack the validity of other separable sections which he is not accused of violating.' McQuillin, Municipal Corporations, 3rd Ed., § 20.11, states the rule thus: 'Provisions, sections or parts of an ordinance, clearly separable from those invoked, not affecting a party cannot be questioned by him.' See also 37 Am.Jur., Municipal Corporations, § 170. We think this rule here applicable. It is in accord with general principles governing attacks on the constitutionality of statutes enacted by the legislature. Torigian v. Saunders, 77 S.D. 610, 97 N.W.2d 586.
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