In re Sapp

• Decision Date: 03 October 1907
• Docket Number: 15,326
• Citation: 113 N.W. 261,79 Neb. 781
• Parties: IN RE MARTIN L. SAPP
• Court: Nebraska Supreme Court

113 N.W. 261

79 Neb. 781

IN RE MARTIN L. SAPP

No. 15,326

Supreme Court of Nebraska

October 3, 1907

ORIGINAL application for a writ of habeas corpus. Writ allowed.

PETITIONER DISCHARGED.

Adam McMullen and L. M. Pemberton, for petitioner.

E. N Kaufman, contra.

OPINION

SEDGWICK, C. J.

This application for writ of habeas corpus presents the question of the validity of an ordinance of the city of Wymore. Section 1 of the ordinance in question is as follows: "That it shall be unlawful for any person in the city of Wymore to set up or keep any card table in or adjacent to any place of business or place of public resort, or to permit card playing in any place of business or adjacent thereto or place of public resort." The complaint against the petitioner, filed in the police court of the city, charged that on the day named in the complaint, and within the city of Wymore, the defendant "did keep card tables in his place of business, and did permit card playing thereon in his place of business, unlawfully and against the peace and dignity of the people of said city." There was a trial upon this complaint, resulting in the conviction of the defendant, and a fine of $ 5 and costs. The defendant, having been committed for a failure to pay this fine and costs, made this application to this court for a writ of habeas corpus.

A city of the second class cannot by ordinance limit the liberty of its citizens, unless the power to do so is given in its charter. The city of Wymore is a city of the second class and we are referred to several sections of the statute governing such cities as containing the power exercised by the city in this case. They are sections 8639, 8642, 8650 and 8723, Ann. St. The first section cited gives the city power "to restrain, prohibit, and suppress billiard tables and bowling alleys kept for public uses, houses of prostitution and unlicensed tippling shops, gambling and gambling houses, and other disorderly houses and practices, and all kinds of public indecencies, and all lotteries or fraudulent devices and practices for the purpose of obtaining money or property." Clearly playing a game of cards for amusement is not within the purview of this section. Section 8650 relates to places of amusement, and gives the city power to determine when such places "are not safe for such uses," and when such places are not provided with sufficient and ample means of exit and entrance, or are not safe as places of amusement, or when the party licensed to conduct such place has been convicted of any violation of the ordinances in relation thereto, the city is given...