Town of Neola v. Reichart

• Decision Date: 26 September 1906
• Citation: 131 Iowa 492,109 N.W. 5
• Parties: TOWN OF NEOLA v. REICHART.
• Court: Iowa Supreme Court

131 Iowa 492

109 N.W. 5

TOWN OF NEOLA

v.REICHART.

Supreme Court of Iowa.

Sept. 26, 1906.

Appeal from District Court, Pottawattamie County; W. R. Green, Judge.

The evidence indicated that the defendant and several others were in Steffen's saloon; that he and Foley were jollying each other, when the latter playfully threw him arms around defendant's neck and offered to kiss him, and accidentally knocked his hat off; that defendant remarked that he “was no d____ n fool,” and, as Foley was about to apologize, called for drinks, and struck at Foley twice, missing him about four feet. Thereupon Foley threw defendant to the floor and demanded that he admit that he had enough, whereupon the latter responded by calling him a son of a bitch. The city marshal entered at this time, and, after parting them, filed an information against defendant in the mayor's court, where he was convicted. Upon appealing to the district court the information was amended so as to charge that defendant “did willfully and unlawfully disturb the peace of others, whose names are to affiant unknown, by the use of loud, violent, and tumultuous language, and by obstreperous conduct and carriage, and by profane, obscene, and offensive language calculated to provoke anger in other persons, and thereby caused a breach of the peace; and at the same time and place, and as a continuance of the same transaction, the said defendant did willfully and unlawfully commit an assault upon one J. P. Foley, and strike him in anger, and engage in a fight with him--all contrary to the ordinance in such cases made and provided.” At the conclusion of the evidence defendant moved that a verdict be directed for the defendant on the grounds (1) that the ordinance under which the prosecution was had covered the same offense included in the statutes of the state and was inconsistent therewith, and (2) that the evidence failed to show that the peace of any person was disturbed. This motion was sustained, and a verdict directed for defendant, and judgment entered thereon. The plaintiff appeals. Reversed.John P. Organ and F. A. Williams, for appellant.

LADD, J.

The evidence shows conclusively that the defendant, if guilty at all, was guilty of an assault, or of an assault and battery, or of engaging in a fight or an affray, or of making use of blasphemous language. These were denounced by sections 11 and 12 of the ordinance of the incorporate town of Neola, and the same penalties provided as are fixed by statutes of the state defining the same offenses. See Code, §§ 4774, 5029, 5033, 5034. The trial court must have held the enactment of such an ordinance was an excess of the powers conferred on a city or incorporated town, as the transaction was without doubt a disturbance of the peace. By “peace,” as used in this connection, is meant the tranquillity enjoyed by the citizens of a municipality or community where good order reigns among its members. It is the natural right among all persons in a political society, and any intentional violation of that right “is a breach of the peace.” See Davis v. Burgess, 54 Mich. 514, 20 N. W. 540, 52 Am. Rep. 828, where it was held that the use of indecent and profane language on a public street constituted a “breach of the peace.” The court there said that “actual personal violence is not the essential element in the offense. If it were, communities might be kept in a constant state of turmoil, fear, and anticipated danger, and conduct of a guilty party, not only destructive of the peace of the city, but of the public morals, without the commission of the offense. The good sense and morality of the law forbids such a construction.” In State v. Benedict, 11 Vt. 236, 34 Am. Dec. 688, public peace is defined as that “invisible sense of security which every man feels so necessary to his comfort and for which all governments are instituted.” In City of Cornvallis v. Carlile, 10 Or. 139, 45 Am. Rep. 134, it is said that the word “peace,” in its legal significance, means “quiet, orderly behavior of individuals to another” and “toward the government, which is said to be broken by acts of a certain kind. * * * Any riotous, forcible, or unlawful conduct or procedure is a breach of the peace. Offenses against the public peace include all acts affecting the public tranquillity, such as assault and battery, riots, routs, and unlawful assemblies, forcible entry and detainer, etc.” 4 Blk. Com. 142. What happened was in a place to which the public generally was not invited, and in the presence of numerous citizens who had a right to be there, and was clearly a disturbance of the peace of that community and the persons present.

2. May a city or incorporated town declare acts offenses against the municipalities, and prescribe punishments therefor, when the same acts are denounced as misdemeanors by the statutes of the state and punished accordingly? If such power is specifically conferred, the authorities agree that it may be exercised. The conflict arises in determining whether such authority is to be implied from statutes conferring general powers upon municipalities to enact such ordinances. This court is committed to the doctrine that if the subject of the ordinance is fairly within those powers conferred upon the town or city, the mere fact that the matter has been covered by statute will not invalidate the ordinance. This was settled in Town of Bloomfield v. Trimble, 54 Iowa, 399, 6 N. W. 586, 37 Am. Rep. 212. In that case an ordinance denouncing intoxication and fixing a penalty was upheld, though there was a statute to the same effect. But the scope of the statutes conferring such powers have been somewhat narrowly limited. Thus in City of Mt. Pleasant v. Breeze, 11 Iowa, 399, an ordinance punishing the keeping of gambling devices was not within a statute investing the city with authority “to suppress gambling”; and in City of Chariton v. Barber, 54 Iowa, 360, 6 N. W. 528, 37 Am. Rep. 209, a statute empowering cities “to suppress and restrain” houses of ill fame was held not to authorize the enactment of an ordinance declaring the keeping of such houses a misdemeanor and prescribing punishment therefor. In Town of New Hampton v. Conroy et al., 56 Iowa, 498, 9 N. W. 417, the above decisions were followed, and the ordinance concerning the sale of prohibited liquors held invalid, because prohibited by fair implication of the statute. In City of Centerville v. Miller, 57 Iowa, 56, 10 N. W. 293, an ordinance denouncing the keeping of any house where loud or unusual noises are permitted, or persons are permitted to congregate and engage in the use of profane or vulgar language to the disturbance of others, was held to have been authorized by a statute conferring power to prevent noise, disturbance, or disorderly assembly. The court refused to extend the foregoing decisions, intimating doubt as to their correctness. In Incorporated Town of Nevada v. Hutchins, 59 Iowa, 506, 13 N. W. 634, it was held that power “to cause any nuisance to be abated” did not authorize the city to enact an ordinance punishing persons for obstructing the streets. And yet in City of Ottumwa v. Chinn, 75 Iowa, 405, 39 N. W. 670, the court held that the abatement of a nuisance must be through the enactment of an ordinance rather than by suit in equity. And such an ordinance was approved in City of Knoxville v. C., B. & Q. R. Co., 83 Iowa, 636, 50 N. W. 61, 32 Am. St. Rep. 321. See Foster v. Brown, 55 Iowa, 686, 8 N. W. 654, where the policy of permitting cities to undertake the punishment of acts by different penalties than those denounced on wrongdoers by the state is challenged as tending to impair the administration of criminal justice. In Iowa City v. McInnerny, 114 Iowa, 586, 87 N. W. 498, an ordinance prohibited keeping a saloon open on election day, enacted by virtue of a statute authorizing cities and towns “to adopt from time to time rules and ordinances for further regulating and controlling such traffic, not in conflict with the provisions of this chapter.” As under the mulct law keeping open on election day was prohibited, and doing so would result in removing the bar and render the keeper liable to the infliction of a statutory penalty much in excess of that provided by the ordinance, the ordinance was held inconsistent with the statute. The case does not purport to overrule Bloomfield v. Trimble, supra, but to distinguish it, and the sentence, “Surely, then, an ordinance covering a subject already fully covered by an act of the Legislature is in conflict therewith,” should be construed in connection with the previous discussion. In Incorporated Town of Sibley v. Lastrico, 122 Iowa, 211, 97 N. W. 1074, the ordinance was upheld on the ground that punishment for allowing a dog to run at large had not been fixed by statute, but was impliedly authorized to be provided by ordinance. In Incorporated Town of Avoca v. Heller (Iowa) 105 N. W. 444, the ordinance prohibited any person from beating, striking, or fighting...