State v. Hay, 51467

• Decision Date: 17 November 1964
• Docket Number: No. 51467,51467
• Citation: 131 N.W.2d 452,257 Iowa 51
• Parties: The STATE of Iowa, Appellee, v. La Verta HAY, Appellant.
• Court: Iowa Supreme Court

Page 452

131 N.W.2d 452

257 Iowa 51

The STATE of Iowa, Appellee, v. La Verta HAY, Appellant.

No. 51467.

Supreme Court of Iowa.

Nov. 17, 1964.

Victor N. Kennedy, Waterloo, for appellant.

Evan Hultman, Atty. Gen., Bruce M. Snell, Jr., Asst. Atty. Gen., John Haughey, State Counsel, State Department of Social Welfare, for appellee.

PETERSON, Justice.

For several years prior to June 30, 1961, defendant maintained what was called a children's boarding home at 408 Vermont Street in Waterloo. Defendant did not have a license as provided in Section 237.2 of the Code, I.C.A. for the maintenance of such a home. She had neglected, and at times had refused, to take out a license. In June of 1961, a case was filed by the State of Iowa against her, seeking to enjoin her from maintaining the home unless she did take out a license.

On June 30, 1961, the trial court enjoined defendant from maintaining said home without a license. She appealed the case to this court, and although record and arguments were not filed, the case was decided per curiam by this court in 1961 and appears in 111 N.W.2d 663. Defendant then did take out a license, but lost same later because of a charge of a criminal nature being filed against her. She then neglected to take out a license again and in 1964 the State of Iowa filed another action against her to enjoin her from maintaining the children's boarding home without a license. The case was tried to the court and an injunction was again issued. Defendant has appealed.

The claim of defendant is that the elements necessary for the maintenance of a children's boarding home under the provisions of Section 237.2 are not present in her operation.

The type of home maintained by defendant is that she has parents bring small children under school age to her boarding home in the morning about six o'clock and they are kept there in the home until 5:45 P.M., when the parents call for them.

There is no conflict of fact as between the parties as to the matter of care and food, but defendant contends the record does not sufficiently support lodging. 'Lodging' has been variously described. In 43 C.J.S. Innkeepers § 3a, page 1137, a 'lodger' is called: 'a person whose occupancy is a part of a house, and subordinate to, and in some degree under, the control of a landlord or his representative.'

In 54 C.J.S. page 667, lodging is defined as '[a] place of rest for a night, or a residence for a time; temporary habitation.'

In Pollock v. Landis, 36 Iowa 651, 652, we find this definition: 'A lodger is one who lives at board, or in a hired room, or who has a bed is another's house for a night. Webster's Dictionary.'

The stipulation of facts as to lodging is as follows: 'Lodging. Limited in the ordinary case to the daytime hours from 6 A.M. to 5:45 P.M. excepting isolated or emergency cases the lodging will be overnight; but never for more than four consecutive nights.'

This stipulation as to facts is sufficient to comply with the Section 237.2 as to 'lodging.'

Chapter 237 of the Iowa Code with reference to children's boarding homes has been in the Code as far back as the 1927 Code, although amended from time to time. An amendment was adopted in the 60th G.A., but the amendment did not affect the merits of the case at bar.

The section as amended by 60th G.A. is as follows:

'Any person who receives for care and treatment or has in his custody at any one time one (1) or more children under the age of sixteen (16) years unattended by parent or guardian, for the purpose of providing them with food, care, and lodging, except children related to him by blood or marriage, and except children received by him with the intent of adopting them into his own family, shall be deemed to maintain a children's boarding home. This definition shall not include any person who is caring for children for a period of less than thirty (30) days.'

The remainder of the chapter outlines the procedure for the issuance, record, and posting of the license and provides authority on the part of the Board of Social Welfare to promulgate rules and regulations for the conduct of such homes, which rules, of course, must not be contrary to the statute.

Appellee contends at some length that the former proceeding of State v. Hay in 1961 was res adjudicata as to this proceeding. The former case does not answer the questions now raised before this court. Defendant did not file any printed record nor brief and argument. Our decision was based upon the transcript and was announced as a per curiam decision affirming the trial court. It is advisable that we consider the present case on its merits and on the basis of the situation as same pertains to defendant at this time.

The questions raised by defendant in the instant case and argued and considered at some length have not heretofore been before this court except to the extent they appear in defendant's case in 1961.

There is a reason for providing protection for children under school age who for one reason or another cannot be and were not kept at home under parental care and guidance. In fact, the necessity is greater now than it ever has been before. Whether right or wrong, as a part of our civilization and general life conditions in this modern day it seems that more and more mothers are leaving home and entering into business or professional life. Under such conditions the mother is not able to provide proper food, care, and lodging for her child or children in the home at all times. It is fortunate in many respects when good homes can be...