Ogden v. City of Madison

• Citation: 111 Wis. 413,87 N.W. 568
• Parties: OGDEN v. CITY OF MADISON.
• Decision Date: 15 October 1901
• Court: Wisconsin Supreme Court

111 Wis. 413

87 N.W. 568

OGDEN

v.CITY OF MADISON.

Supreme Court of Wisconsin.

Oct. 15, 1901.

Error to circuit court, Dane county; Robert Siebecker, Judge.

Francis A. Ogden was convicted of keeping and maintaining a disorderly house and house of ill fame in violation of an ordinance of the city of Madison, and he brings error. Affirmed.

This action was commenced in the municipal court of Dane county on a complaint charging the plaintiff in error with having been guilty of “keeping and maintaining a disorderly house and house of ill fame,” contrary to the provisions of section 4, c. 7, of the ordinances of the city of Madison. A warrant for his arrest was issued, and he was arrested and taken before the court. A plea of not guilty was entered, and a trial was had before the court without a jury. He was found guilty, and was adjudged to pay a fine of $100 and costs, or, in default of the payment of such fine and costs, that he be committed to the county jail of Dane county at hard labor until said fine and costs were paid,--not, however, to exceed 90 days. An appeal was taken to the circuit court, where a trial was had before a jury, and a verdict of guilty rendered. A similar fine, with costs, was imposed, with imprisonment in the county jail not exceeding 3 months in case of nonpayment. The accused brings the case to this court by writ of error.H. W. Chynoweth, for plaintiff in error.

John A. Aylward, for defendant in error.

BARDEEN, J. (after stating the facts).

Two propositions are presented for our consideration: (1) The city of Madison has no power to enact the ordinance under which the plaintiff in error was convicted; (2) the provisions of law providing for the summary trial of the accused without a jury are in violation of the constitution of the state and of the United States.

1. The first proposition must be determined upon a consideration of the powers granted the common council of the city of Madison under its charter (chapter 36, Laws 1882), with the amendments thereto. Section 1, c. 1, says: “The city of Madison shall have the general powers possessed by municipal corporations at common law and, in addition thereto, shall have the powers hereinafter specifically granted.” Section 3, c. 4, provides that the common council shall “have full power to make, enact, ordain, establish, publish, enforce, alter, modify, amend and repeal all such ordinances, rules and by-laws for the government and good order of the city, for the suppression of vice and immorality, for the prevention of crime, and for the benefit of the trade, commerce and health, as it shall deem expedient; declaring and imposing penalties, and to enforce the same against any person or persons who may violate any of the provisions of such ordinance, rule or by-law, and such ordinances, rules and by-laws are declared to be and have the force of law: provided they are not repugnant to the constitution of the United States and of the state. * * *” Subdivision 1 grants the power to provide for the abatement and removal of nuisances under the ordinances or at common law. Subdivision 3 is as follows: “To prevent any riots, noise, disturbances or disorderly assemblances, suppress and restrain disorderly houses or groceries and houses of ill-fame, and to authorize the destruction of all instruments used for the purpose of gaming.” Section 5 of said chapter 4 declares all “gambling houses, houses of ill-fame, disorderly taverns,” to be public or common nuisances. Section 4 of chapter 7 of the city ordinances provides that, if any person shall voluntarily be guilty of keeping or maintaining any disorderly house or house of ill fame. he shall, on conviction, be fined a sum not exceeding $100, and the further sum of $100 for each 24 hours such house shall be continued after the first conviction, or after such person shall have been ordered “to suppress, restrain or discontinue the same.” The argument is that the charter provisions noted give the common council no power to enact an ordinance punishing a person for keeping a disorderly house or house of ill fame; that its power is limited to suppression and restriction. There can be no doubt of the rule that a municipal corporation possesses and can exercise only such powers as are granted in express words,--such as are necessarily or fairly implied in or incident to the powers expressly granted, and those essential to the declared objects and purposes of the corporation. 1 Dill. Mun. Corp. § 89. If there is great doubt concerning the existence of the power, the corporation cannot exercise it. The books are full of cases in which this subject has been considered. The field has been explored from all directions. Some of the cases are narrow and technical in their construction of the powers granted, while others adopt a somewhat broader view. We get but scanty assistance from adjudged cases, because of the want of uniformity in the language used in granting the power, and the great variety of circumstances deemed proper to be considered in arriving at the legislative intent. Two cases presented for our consideration are deemed decisive of this case in favor of the plaintiff in error. In Re Lee Tong (D. C.) 18 Fed. 253, the power granted was “to suppress bawdyhouses, gaming and gambling houses.” The ordinance forbade and declared it to be unlawful for any person to play any one of a long list of games of chance “for or with any thing of value,” and provided that any person violating the ordinance shall be punished by imprisonment or by fine or both. Lee Tong was arrested for gaming and convicted, and sought his release on habeas corpus. Judge Deady held that the power “to suppress gaming” did not carry with it power to define and punish the crime of gaming. He laid some stress on the fact that the legislature had passed a law punishing gaming, and that in frequent amendments to the charter by the legislature power to punish for offenses had only been given in cases where the state law had not prescribed a penalty. This, he believed, showed a legislative intent, and, with the other circumstances, was sufficient to support the conclusion reached. He cites the other case (City of Mt. Pleasant v. Breeze, 11 Iowa, 399) relied on by counsel here as supporting his decision. This case holds that, where the power granted was “to suppress” gambling, it gave no power to enact an ordinance making gambling a misdemeanor and prescribing a punishment therefor. The city had no power to punish that which it was only authorized to suppress. In a subsequent case (City of Chariton v. Barber, 54 Iowa, 360, 6 N. W. 528, 37 Am. Rep. 209) the court, in referring to this case, say: “The decision is not without grave objections as to the reasons upon which it is based. But it has been accepted without question or challenge for more than nineteen years. We ought not, at this late day, disturb it.” They accordingly held that the power to suppress and restrain disorderly houses did not authorize the passage of an ordinance declaring the keeping of such a house a misdemeanor, and imposing a punishment by fine and imprisonment for the offense. In the case of City of Centerville v. Miller, 57 Iowa, 56, 10 N. W. 293, the court say they are not disposed to extend the rule announced in the Mt. Pleasant Case, and remark “that they know of no more effective way of preventing the commission of an offense than a provision providing for its punishment.” See case, same title and volume, page 225, 10 N. W. 639. We appreciate quite fully the difficulty the court found in following the early decision. It is based upon narrow and technical grounds. It leaves but a mere shadow where substance was necessary. It takes the spirit and the life from the law, and leaves but a feeble and flickering remnant. It must be assumed that the legislature intended that the words of the charter should have their usual and ordinary signification. The following definition of the words “suppress” and “restrain” are instructive in this connection: Bouvier: “Suppress: To put a stop to when actually existing.” Anderson: “To prevent; never, therefore, to license or sanction.” Standard: “To put down or put an end to by force; overpower; crush; subdue.” Century: “To overpower; subdue; put down; quell; crush; stamp out.” Webster: “To overpower and crush; to overwhelm; to subdue; to put down; to repress; to destroy.” As to the word “restrain,” the lexicographers all agree that it means “to curb; to check; to repress; to debar; to prevent; to hinder.” If these words are to be understood to have the meaning here ascribed to them, then it would seem clear that, when the power to suppress and restrain an act is given, the power to adopt such measures as are essential and incident to such express grant of power must follow. Without it the grant would be barren and futile. If the grant of power to suppress and restrain means that the corporation may overpower, crush, subdue, and prevent the evil aimed at, then certainly it may affix reasonable penalties for the commission of such act. As suggested by the Iowa court, we know of no better or more effective way of suppressing a disorderly house, or preventing or crushing them out, than to provide a penalty against the keeper. The power to restrain houses of ill fame would be barren indeed if no means of punishment could be prescribed and enforced. The charter expressly authorizes the council to declare and impose penalties for the breach of its ordinances. The penalty imposed by the ordinance is by fine. Imprisonment only follows in case the fine is not paid. The case of Schwuchow v. City of Chicago, 68 Ill. 444, is somewhat instructive on the question above discussed. It holds that, where the power was granted to suppress groceries where liquor was sold, the city might absolutely prohibit sales, or license, as it pleased. The case of Wong v. Astoria, 13 Or. 538, 11 Pac. 295, is somewhat in point. Jennie Wong was...