Appeal
from Jasper Circuit Court.
THE
petition alleges that the defendant McCord filed before the
defendant Stuver an information charging the plaintiff with
keeping for sale beer contrary to the terms of an ordinance
of the city of Newton, and praying the issuance of a search
and seizure warrant to "take any beer that might be
found in the possession of the plaintiff, as by said
ordinance provided"; that the defendant Stuver, as an
acting justice, issued such warrant; that the defendant
McCord, as the acting marshal of the city of Newton, by
virtue of said warrant, searched the premises of the
plaintiff, and seized two kegs or parcels of beer, and kept
them until the beer was spoiled and rendered worthless. The
petition alleges that the ordinance, in so far as it attempts
to authorize a search of premises and seizure of beer, is
void, and conferred no authority upon the defendants. The
plaintiff asks judgment in the sum of five thousand dollars.
A copy of the ordinance in question is attached to the
petition. Each of the defendants demurred to the petition.
The demurrers were sustained. The plaintiff elected to stand
upon his petition, and judgment was rendered against him for
costs. The plaintiff appeals.
AFFIRMED.
OPINION
DAY, J.
I.
The
provisions of the ordinance in question involved in this
action are as follows:
"Sec
1. Be it ordained by the mayor and council of the city of
Newton that it shall be unlawful for any person by himself
his clerk, servant or agent, for himself, or for any person
else, to keep any beer or wine for sale within the limits of
the city of Newton, unless where the sale of said liquors is
permitted by the board of supervisors of Jasper county.
"Sec.
4. If any credible resident of the city of Newton shall,
before the mayor, or any justice of the peace in said city,
make written affidavit that he or she has reason to believe,
or does believe, that any of the liquors mentioned in section
one hereof is, in any place described as particularly as may
be, kept or owned by any person with intent to be sold in
violation of section one hereof, then said mayor or justice
of the peace shall, upon finding probable cause for said
belief, issue his warrant of search, directed to the marshal
of said city, or to any other peace officer, describing as
nearly as may be the place to be searched, the liquors in the
information, and the person named as the owner
or keeper of said liquors, and commanding said officer to
thoroughly search said place for said liquor, and, in case he
find any, to seize it and the vessels containing it, and
retain the same until disposed of, as hereinafter provided.
"Sec.
5. Whenever, upon such warrant, any such liquors shall be
seized the mayor or justice who issued the warrant shall
cause a notice to be posted up
at some conspicuous place where said liquor was seized, and
also a copy thereof to be left with or at the usual place of
residence, if in this city, of the person named in said
information as the owner or keeper of said liquor, summoning
such person, and all others whom it may concern, to appear
before said mayor or justice at a time not less than five nor
more than fifteen days from the posting and leaving of said
notice, and show cause, if any they have, why said liquor,
and vessels containing it, should not be forfeited; the
notice shall also describe said liquors and vessels, and
state when, where and why the same were seized. At the time
named in said notice any person claiming any part of said
liquors or vessels may appear and be made a party defendant
in said case, and show cause why said liquor should not be
forfeited. A trial shall be had, conducted as near as may be
in ordinary cases of misdemeanor, in which the defendant may
demand a jury. Whether any person appears as defendant or not
the mayor or justice shall, at the prescribed time, proceed
to the trial of said cause, and the complainant may, and, in
his default, the officer having the liquor shall, appear and
prosecute said information.
"Sec.
6. Whenever, under a search warrant, judgment of condemnation
against any beer or wine has been rendered, it shall be the
duty of the officer who served said warrant to file at once
information against the person or persons in whose possession
it was found, or against the person claiming to be the owner
of said liquor, charging him with a violation of section one
hereof.
"Sec.
7. Any person convicted of a violation of this ordinance shall be fined fifty dollars, and costs of suit,
and shall stand committed to jail until the same is paid, not
exceeding thirty days. For each subsequent offense he shall
pay a fine of one hundred dollars, and costs of suit, and
shall stand committed until the same is paid, not exceeding
thirty days.
"Sec.
8. Ordinance No. 40, passed August 7th, 1872, is hereby
repealed."
It is
claimed that these provisions are void for the reason that no
power to enact them has been by the State delegated to
municipal corporations. "It is a general and undisputed
proposition of law that a municipal corporation possesses,
and can exercise, the following powers, and no others: First,
those granted in express words. Second, those
necessarily or fairly implied in or incident to the
powers expressly granted. Third, those essential to
the declared objects and purposes of the corporation, not
simply convenient, but indispensable." 1 Dillon on
Municipal Corporations, p. 173, and authorities cited.
Section
463 of the Code confers upon a municipal corporation power
"to regulate or prohibit the sale of intoxicating
liquors not prohibited by the laws of this State." It
cannot be claimed that this section, in express words,
confers upon a municipal corporation authority to search for
and destroy liquors kept for sale in violation of an
ordinance prohibiting their sale. It must be admitted also,
we think, that this power is not essential, that is
indispensable, to the declared objects and purposes of a
municipal corporation. It remains to be seen whether it is
necessarily or fairly implied in or incident to the power
conferred of prohibiting the sale of intoxicating liquors not
prohibited by the laws of the State. It has been quite
uniformly held that a municipal corporation has no authority
to pass an ordinance creating a forfeiture of goods and
chattels as a penalty for violating its by-laws or
ordinances, unless such powers are expressly granted by its
charter.
In
White v. Tallman, 2 Dutcher 67, it was held that an
ordinance of a municipal corporation providing
for the forfeiture of impounded animals for the benefit of
the borough, by reason of the failure of the owner to claim
them within a specified time, was void.
In
Cutler v. Doughty, 5 Ohio 245, it was held that the
city of Cincinnati had no power to declare a forfeiture of
gunpowder, brought within the city in violation of an
ordinance, although the act of incorporation conferred upon
the city authority "to impose reasonable fines on all
persons offending against the laws and ordinances aforesaid,
and to cause all such fines and all such forfeitures
and penalties as may be incurred, under the laws and
ordinances of the corporation, to be assessed, levied and
collected, in such manner as they may prescribe." The
court say: "That the city council, under the law of
1815, had the power to pass a law to prevent large quantities
of gunpowder from being kept in the city, we have no doubt.
For offending against an ordinance of this description they
might impose fines. With equal propriety they might provide
for its removal to a safe place without the limits of the
corporation. But they have not the power to declare it
forfeited, nor the right when it is removed to withhold it
from the owner."
In
Miles v. Chamberlain, 17 Wis. 446, it was held that
towns in that state have no authority to provide for...
