Incorporated Town of Avoca v. Heller

• Decision Date: 16 December 1905
• Citation: 105 N.W. 444,129 Iowa 227
• Parties: INCORPORATED TOWN OF AVOCA, IOWA, Appellant, v. ELMER HELLER and JOHN HELLER
• Court: Iowa Supreme Court

105 N.W. 444

129 Iowa 227

INCORPORATED TOWN OF AVOCA, IOWA, Appellant, v. ELMER HELLER and JOHN HELLER

Supreme Court of Iowa, Des Moines

December 16, 1905

Appeal from Pottawattamie District Court.--HON. W. R. GREEN, Judge.

THE defendants were charged with the violation of an ordinance of the town of Avoca. A demurrer to the information was sustained and the defendants were discharged. The town appeals.

Reversed.

Roscoe Barton, for appellant

No appearance for appellee.

OPINION

SHERWIN, C. J.

The information charged that the defendants had committed the crime of assault and battery, in violation of section 9 of an ordinance of the town defining public offenses and fixing a penalty therefor. The mayor overruled a demurrer to the information and found the defendants guilty as charged whereupon an appeal was taken to the district court, where the following demurrer was interposed and sustained:

"That said Town of Avoca has no power under the laws of this State to pass and enforce the ordinance upon which said information is founded, and no right or authority to punish the defendants under said ordinance or fine defendants or restrain them of their liberty for the violation of said pretended ordinance." The ordinance on which the prosecution was based provides as follows "Any person who shall unlawfully beat, strike or fight another in the town of Avoca, Iowa shall be deemed guilty of an offense against the town and upon conviction thereof shall be punished by a fine not exceeding $ 100.00 or imprisonment in jail not exceeding 30 days." Section 680 of the Code expressly provides that municipal corporations shall have power to enact "ordinances not inconsistent with the laws of the State, for carrying into effect or discharging the powers and duties conferred by this chapter, and such as shall be necessary and proper to provide for the safety, preserve the health, . . . improve the morals, order and comfort . . . of such corporation and the inhabitants thereof."

If there were no State law punishing the crime of assault and battery, it is clear that the town would have authority under section 680 to enact and enforce the ordinance in question for its purpose is to improve the morals and order of the municipality and its inhabitants, as well as to provide for their safety. To allow affrays and assaults and the disorderly conduct necessarily connected therewith would be in the highest...