State v. Prouty

• Decision Date: 20 December 1900
• Citation: 115 Iowa 657,84 N.W. 670
• Parties: STATE v. PROUTY, JUDGE.
• Court: Iowa Supreme Court

115 Iowa 657

84 N.W. 670

STATE

v.PROUTY, JUDGE.

Supreme Court of Iowa.

Dec. 20, 1900.

This is a certiorari proceeding brought in this court to test the validity of an order made by the defendant discharging one Mark Chiesa from the charge of contempt in violating an injunction restraining him from selling intoxicating liquors. Annulled.Milton Remley, Atty. Gen., Charles A. Van Vleck, Asst. Atty. Gen., John McLennan, Co. Atty., and Ezra D. Marshall, for the State.

Howe & Miller, for defendant.

DEEMER, J.

In the year 1895, one Mark Chiesa was perpetually enjoined from selling intoxicating liquor in Polk county, Iowa. Thereafter, and in December of the year 1899, an information was filed showing that the injunction had been violated, and asking that a writ of attachment issue commanding Chiesa to appear and show cause why he should not be punished for contempt. Pursuant to this application, a writ was issued, and Chiesa was brought before the court. On his appearance he filed a demurrer to the information based on the ground that the laws provide no penalty for the violation of an injunction granted prior to the adoption of the present Code. This demurrer was sustained, and Chiesa was discharged. This proceeding was instituted to review the action of the trial judge in discharging Chiesa.

The ultimate question involved is so well stated by counsel for the defendant that we adopt it as the basis for the opinion. It is as follows: “Is a person who, since the 1st day of December, 1899, has violated the terms and conditions of an injunction against the unlawful sale of intoxicating liquors granted prior to the adoption of the new Code, subject to punishment therefor? or, in other words, does the law provide a penalty for the violation, since the new Code went into effect, of an injunction against the unlawful sale of intoxicating liquors granted prior to its adoption?” The provision of the Code of 1897, with reference to punishment for violaing injunctions, reads as follows: “In case of the violation of any injunction granted under the provisions of this chapter, the court, or in vacation a judge thereof, may summarily try and punish the offender. The proceedings shall be commenced by filing with the clerk of the court an information under oath setting out the alleged facts constituting such violation, upon which the court or judge shall cause a warrant to issue, under which the defendant shall be arrested. The trial may be had upon affidavit, or either party may demand the production and oral examination of the witnesses. A party found guilty of contempt under the provisions of this section shall be punished by a fine of not less than $200 nor more than $1,000, or by imprisonment in the county jail not less than three nor more than six months, or by both fine and imprisonment.” Section 2407. Prior to the adoption thereof the law relating thereto read as follows: “Actions to enjoin nuisances as authorized by section 12, c. 143, Acts 20th Gen. Assem., may be brought in the name of the state, * * * and it shall be the duty of the county attorney * * * (c) to institute and prosecute such action for the abatement thereof,” etc. Acts 21st Gen. Assem. c. 66, § 1. Section 2 of the same act provides for the issuance of a temporary writ of injunction. Section 3 reads as follows: “In case of the violation of an injunction granted in such action, the court, or in vacation the judge thereof, shall have power to try summarily and punish the party guilty thereof, as required by section 12, c. 143, Acts 20th Gen. Assem.” Section 4, c. 73, Acts 22d Gen. Assem., provides that “in any action to enjoin a nuisance,” as authorized by the acts of the general assembly before mentioned, “the injunction shall be binding throughout the district in which the action is brought”; and further provides that “any person enjoined in such action, who shall, while such injunction remains in force, again engage in * * * the selling, * * * contrary to law, of any intoxicating liquor, anywhere within the jurisdiction of the court, shall be deemed guilty of contempt of court, and punished accordingly.” Chapter 143 of the Acts of the 20th General Assembly contains provisions declaring buildings in which intoxicating liquors were sold or kept for sale, in violation of law, nuisances, and authorizing the abatement thereof. It further provides that “any citizen of the county * * * may maintain an action in equity to abate and perpetually enjoin the same, and any person violating the terms of any injunction granted in such proceedings shall be punished as for contempt by a fine of not less than $500 nor more than $1,000, or by imprisonment,” etc. See section 12 of that act. These provisions are substantially re-enacted in the Code of 1897. Section 2384 of that Code makes the building in which intoxicating liquor or liquors are sold contrary to law a nuisance, and provides for a fine of not less than $300, nor more than $1,000, and for the abatement of such nuisance. Section 2405 provides for an action in equity to abate the nuisance by any citizen of the county; for the allowance of a temporary writ of injunction; and that when the injunction is granted it shall be binding throughout the district in which it was issued, and that the violation of the provisions of the chapter by the selling of liquor anywhere within the judicial district shall be punished as a contempt as provided in the chapter. Section 2406 provides that the action may be brought in the name of the state, by the county attorney, who shall prosecute the same, or by any citizen of the county. Section 2407 we have already quoted. Section 2408 provides for the abatement of the nuisance when established. The chapter referred to in these sections is chapter 6 of title 11 of the Code. Title 11 relates to the “Police of the State,” and chapter 6 to “Intoxicating Liquors.” The acts of the general assembly to which we have referred are headed “Relating to the Sale of Intoxicating Liquors” in the Acts of the 20th and 21st General Assemblies, and “To Regulate the Sale of Intoxicating Liquors” in the Acts of the 22d. They are each and all amendatory of chapter 6, tit. 11, Code 1873; the title being headed, “Police of the State,” and the chapter, “Intoxicating Liquors.” The Code of 1897 further provides that “all public and general statutes adopted prior to the present extra session of the general assembly, excepting acts appropriating money, * * * and all public and special acts the subjects whereof are herein revised or which are repugnant thereto are repealed, subject to the limitations and exceptions hereinafter explained. * * *” Section 49. Section 50: “The Code shall take effect ninety days after the final adjournment of the extra session of the 26th Gen. Assem., until which time existing statutes continue in force,” etc. Section 51: “The repeal of existing statutes shall not affect any act done, any right accruing or which has accrued or been established, nor any suit or proceeding had or commenced in any civil cause before the time when such repeal takes effect; but the proceedings in such cases shall be conformed to the provisions of the Code as far as consistent.” Section 52: “No offense committed, and no penalty or forfeiture incurred under any statute hereby repealed and before the repeal takes effect, shall be affected by the repeal; except that, when a punishment, penalty or forfeiture is mitigated by the provisions herein contained, such provisions shall be applied to a judgment to be pronounced after the repeal.”

These are all the statutory provisions involved in the question now under consideration. Referring back to section 2407 of the Code, it will be noticed that it reads: “In case of the violation of any injunction granted under the provisions of this chapter,” the court may summarily try and punish the offender, etc. It will also be observed that the injunction that Chiesa is charged with violating was not, strictly speaking, granted under the provisions of that chapter. It was passed in the year 1895, under the provisions of the acts of the general assembly to which attention has been called. For this reason, it is argued that there is no statute under which the defendant may be prosecuted for acts in violation of the injunction, done after the Code of 1897 went into effect. This contention is the pivotal point in the case.

Is it true that one who violates a decree of injunction issued before the present Code went into effect cannot be punished either under the acts of the general assembly, before quoted, or under the provisions of the new Code? It cannot be gainsaid, we think, that the original decree entered in the case brought to enjoin the unlawful sale of liquor before the present Code went into effect was unaffected by the adoption of the new Code. Had the legislature repealed the law under which it was granted, and not re-enacted practically the same law, it might be said that the decree was thereby abrogated. The law enacted was in virtue of the police power of the state, in aid of the enforcement of conduct tending towards the improvement of public morals. A repeal of that law would, no doubt, have annulled the decree in so far as it related to acts committed after the repealing statute became effective. But the acts of the legislature prohibiting the unlawful sale of intoxicating liquors were not repealed, as we understand it. The repeal and simultaneous re-enactment of substantially the same statutory provisions is not to be construed as an implied repeal of the original statute, but as a continuation thereof, so that all interests, under the original statute, remain unimpaired. Hancock v. Perry Tp., 78 Iowa, 555, 43 N. W. 527;Association v. Benshimol, 130 Mass. 327;Fullerton v. Spring, 3 Wis. 667; Wright v. Oakley, 5 Metc. (Mass.) 400; Steamship Co. v. Joliffe, 2 Wall. 450, 17 L. Ed. 805. The same rule applies to general revisions of existing laws...