State v. Strayer

• Decision Date: 23 September 1941
• Docket Number: 45503.
• Parties: STATE v. STRAYER.
• Court: Iowa Supreme Court

299 N.W. 912

230 Iowa 1027

STATE v. STRAYER.

No. 45503.

Supreme Court of Iowa.

September 23, 1941

SAGER and MITCHELL, JJ., dissenting.

Appeal from Municipal Court, City of Des Moines; C. Edwin Moore Judge.

Information charging defendant with violation of chapter 107 of the 1939 Code of Iowa, § 2228 et seq. Demurrer to the information sustained and State of Iowa appeals.

Reversed.

John M. Rankin, Atty. Gen., Jense Grothe, Asst. Atty. Gen., and Francis J. Kuble, Co. Atty., and Walter W. Selvy and James P Irish, Asst. Co. Attys., all of Des Moines, for appellant.

H. W Hanson, of Des Moines, for appellee.

HALE Justice.

The defendant was the operator of a farm in Four Mile Township Polk County, and engaged in raising hogs, feeding them garbage obtained from various sources and deposited upon his land. On April 17, 1940, the board of health of that township, without notice having been served upon the defendant, found that a nuisance existed by reason of the dumping of said garbage, and ordered the removal of such nuisance from the premises occupied by him. It is alleged that defendant failed to comply with the order. Information was filed in the municipal court of Des Moines, on June 17, 1940, charging that the defendant, on April 17, 1940, violated chapter 107 of the 1939 Code of Iowa, § 2228 et seq., by hauling garbage to his place in Four Mile Township in violation of the order served on him by the board of health of that township on April 17, 1940. To this information defendant pleaded not guilty, and later, on July 1, 1940, filed a demurrer to the information, which was sustained by the court and the case dismissed. The State appeals.

The demurrer is quite lengthy, consisting of nineteen paragraphs, and need not be set out in full. The court entered its findings in the order of dismissal, finding the facts as to notice as above set out. The substance of the court's findings as to the law is summarized as follows: (1) That the statute is in contravention of the due-process clauses of the constitution of the state of Iowa and the constitution of the United States; (2) that it is not a crime per se to haul garbage to designated premises; and (3) that the statute constitutes a delegation of legislative power.

Is the statute unconstitutional as operating to deprive the defendant of his property without due process of law? Chapter 107 of the Code provides for the organization of boards of health, and their powers and duties. Section 2240 of said chapter is as follows: " The local board may order the owner, occupant, or person in charge of any property, building, or other place, to remove at his own expense any nuisance, source of filth, or cause of sickness found thereon, by serving on said person a written notice, stating some reasonable time within which such removal shall be made, and if such person fails to comply with said order, the local board may cause the same to be executed at the expense of the owner or occupant." No complaint is made as to the form of the order. Section 2246 of said chapter 107 is as follows: " Any person who knowingly violates any provision of this chapter, or of the rules of the local board, or any lawful order, written or oral, of said board, or of its officers or authorized agents, shall be guilty of a misdemeanor."

I.

The State, in denying that these provisions are unconstitutional, calls attention first to the presumption in favor of the constitutionality of an act passed by the legislature, citing Loftus v. Department of Agriculture, 211 Iowa 566, 232 N.W. 412, appeal dismissed, 283 U.S. 809, 51 S.Ct. 647, 75 L.Ed. 1427; City of Des Moines v. Manhattan Oil Co. 193 Iowa 1096, 184 N.W. 823, 188 N.W. 921, 23 A.L.R. 1322; State v. Hutchinson Ice Cream Co., 168 Iowa 1, 147 N.W. 195, L.R.A.1917B, 198, affirmed, 242 U.S. 153, 37 S.Ct. 28, 61 L.Ed. 217, Ann.Cas.1917B, 643. And see, Miller v. Schuster, 227 Iowa 1005, 289 N.W. 702. This proposition defendant concedes, but alleges that such presumption may be overcome by a showing of clear violation of constitutional safeguards; citing Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60; and McGuire v. Chicago, B. & Q. R. Co., 131 Iowa 340, 108 N.W. 902, 33 L.R.A.,N.S., 706. Neither of these propositions may be denied. The presumption exists, and undoubtedly it is the duty of the court to declare a clear, plain, and palpable violation of a constitutional right where there is no reasonable doubt as to such violation. There is no dispute here.

II.

The State argues that the legislative enactment complained of, being in the interest of the public health, was reasonably within the police power of the state. Various authorities are cited. The case of Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 360, 49 L.Ed. 643, 3 Ann.Cas. 765, involves a statute requiring compulsory vaccination, and the court there says, relative to police power: " The authority of the state to enact this statute is to be referred to what is commonly called the police power,-a power which the state did not surrender when becoming a member of the Union under the Constitution. Although this court has refrained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a state to enact quarantine laws and ‘ health laws of every description; ’ indeed, all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other states. According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety."

The United States Supreme Court says, in Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 500, 38 L.Ed. 385, a case relating to the summary seizing of certain fishing nets: " The extent and limits of what is known as the ‘ police power’ have been a fruitful subject of discussion in the appellate courts of nearly every state in the Union. It is universally conceded to include everything essential to the public safety, health, and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance. Under this power it has been held that the state may order the destruction of a house falling to decay, or otherwise endangering the lives of passers-by; the demolition of such as are in the path of a conflagration; the slaughter of diseased cattle; the destruction of decayed or unwholesome food; the prohibition of wooden buildings in cities; the regulation of railways and other means of public conveyance, and of interments in burial grounds; the restriction of objectionable trades to certain localities; the compulsory vaccination of children; the confinement of the insane or those afflicted with contagious diseases; the restraint of vagrants, beggars, and habitual drunkards; the suppression of obscene publications and houses of ill fame; and the prohibition of gambling houses and places where intoxicating liquors are sold. Beyond this, however, the state may interfere wherever the public interests demand it, and in this particular a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests. Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357 [358, 28 L.Ed. 923]; Kidd v. Pearson, 128 U.S. 1, 9 S.Ct. 6 . To justify the state in thus interposing its authority in behalf of the public, it must appear-First, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts."

Our own court, in reviewing the provisions of the statute enacted for the control and eradication of bovine tuberculosis, has ruled that such statute is a valid exercise of the police power of the state. See Loftus v. Department of Agriculture, supra, and authorities cited on page 573 of 211 Iowa, on page 416 of 232 N.W. To the same effect, see the pronouncement of the court in Holden v. Hardy, 169 U.S. 366, 18 S.Ct. 383, 388, 42 L.Ed. 780, wherein the court says: " * * * the police power cannot be put forward as an excuse for oppressive and unjust legislation, it may be lawfully resorted to for the purpose of preserving the public health, safety, or morals, or the abatement of public nuisances, and a large discretion ‘ is necessarily vested in the legislature, to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests." ’

In the case of McGuire v. Chicago, B. & Q. R. Co., supra the court, in discussing police power, while holding that it is the duty of courts to keep within the constitutional limits of their jurisdiction, states [ 131 Iowa 340, 108 N.W. 907, 33 L.R.A.,N.S., 706]: " It is a settled proposition that the fourteenth amendment to the federal Constitution was not intended to limit or hamper the states in the exercise of their police powers. Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519; Ex parte Converse, 137 U.S. 624, 11 S.Ct. 191, 34 L.Ed. 796; Powell v. Pennsylvania, 127 U.S....