Incorporated Town of Nevada v. Hutchins
| Decision Date | 18 October 1882 |
| Citation | 13 N.W. 634,59 Iowa 506 |
| Parties | INCORPORATED TOWN OF NEVADA v. HUTCHINS |
| Court | Iowa Supreme Court |
Appeal from Story Circuit Court.
THE defendant is the owner of a hotel in the town of Nevada. In front of the building there is a porch, and steps thereto which extend beyond the line of defendant's lot and into the adjacent street about eight feet, and which totally obstruct that part of the street covered by them, the porch being some four or five feet above the level of the street. Under the porch and within the street there is an excavation made for the purpose of an entrance or passage-way to the basement of the hotel.
An information was filed against the defendant under an ordinance of the town charging him with keeping and maintaining an obstruction in the street. The defendant was arrested, tried and convicted before the mayor, and was fined in the sum of five dollars, and an order was made for the removal of the porch and steps, and requiring that the excavation in the street be filled. An appeal was taken by the defendant to the District Court, where a trial was had and a like judgment was entered. Defendant appeals.
REVERSED.
John A McCall, for appellant.
Dyer & Fitzpatrick, for appellee.
I.
The ordinance upon which the prosecution is based, so far as applicable to the case, is as follows:
It is contended by counsel for appellant that the ordinance is void, so far as applicable to this case, because the town had no authority under the statutes of the State to enact it.
Section 456 of the Code, in enumerating the powers of cities and towns, provides that "They shall have power to prevent injury or annoyance from anything dangerous, offensive or unhealthy, and to cause any nuisance to be abated; * * * to prevent any riots, noise, disturbance, or disorderly assemblages, to suppress and restrain disorderly houses, houses of ill-fame, billiard tables, nine or ten pin alleys or tables, and ball alleys, and to authorize the destruction of all instruments and devices used for purposes of gaming, and to protect the property of the corporation and its inhabitants, and to preserve peace and order therein." The act with which the defendant is charged is expressly declared to be a nuisance by section 4089 of the Code, which provides that "the obstructing or incumbering by fences, buildings, or otherwise, the public highways, private ways, streets, alleys, commons, landing places or burying grounds, are nuisances."
The power given by section 456 is to abate nuisances, and the question made is that under this power the town cannot, by fine, punish one who maintains a nuisance. In the case of the City of Chariton v. Barber, 54 Iowa 360, 6 N.W. 528, it was held that the power to suppress and restrain disorderly houses, houses of ill-fame, etc., provided by this section, did not authorize the passage of an ordinance declaring the keeping of such a house a misdemeanor and imposing a punishment therefor. This case followed the case of the City of Mount Pleasant v. Breeze, 11 Iowa 399. These cases were again followed in the case of the Town of New Hampton v. Conroy, 56 Iowa 498, 9 N.W. 417.
Under section 456, power is given to "abate" nuisances and to "suppress and restrain" gambling...
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Inc. Town of Nev. v. Hutchins
... ... Appeal from Story district court.The defendant is the owner of a hotel in the town of Nevada. In front of the building there is a porch and steps thereto, which extend beyond the line of defendant's lot and into the adjacent street about ... 87. (1) Be it ordained by the town council of the incorporated town of Nevada, that if any person shall place any obstruction, excavation on any street, sidewalk, or alley within said town, or dig up or excavate, ... ...