Incorporated Town of Nevada v. Hutchins , 59 Iowa 506 ( 1882 )

Eothrock, J.

I. The ordinance upon which the prosecution is based, so far as applicable to the case, is as follows:

l. cities and towns: power anees. “Sec. 87. (1.) Be it ordained by the town council of the incorporated town of Nevada, that if any person shall place any obstruction or excavation on any street, sidewalk ^ or alley within said town, or die: up or excavate, or shall keep any such obstruction in any street, sidewalk or alley, either by excavation or otherwise (except it be for a reasonable time in receiving or discharging freight or other goods, and the erection of buildings), he shall be fined in any sum not exceeding fifty dollars, nor less than five dollars, and said obstruction shall be removed at his or her expense.”

It is contended by counsel for appellant that the ordinance is void, so far as applicable to this case, because the town had no authority under the statutes of the State to enact it.

Section 456 of the Code, in enumerating the powers of cities and towns, provides that “They shall have power to prevent injury or annoyance from anything dangerous, offensive or unhealthy, and to cause any nuisance to be abated; * * * to prevent any riots, noise, disturbance, or disorderly assemblages, to suppress and restrain disorderly houses, houses of ill-fame, billiard tables, nine or ten pin alleys or tables, and ball alleys, and to authorize the destruction of all instruments and devices used for purposes of gaming, and to protect the property of the corporation and its inhabitants, and to preserve peace and order therein.” The act with which the defendant is charged is expressly declared to be a nuisance by section 4089 of the Code, which provides that “the obstructing or incumbering by fences, buildings, or otherwise, the public highways, private ways, streets, alleys, commons, landing places or burying grounds, are nuisances.”

The power given by section 456 is to abate nuisances, and the question made is that under this power the town cannot, by fine, punish one who maintains a nuisance. In the case of the City of Chariton v. Barber, 54 Iowa, 360, it was held that the power to suppress and restrain disorderly houses, houses of ill-fame, etc., provided by this section, did not authorize the passage of an ordinance declaring the keeping of such a house a misdemeanor and imposing a punishment therefor. This case followed the case of the City of Mount Pleasant v. Breeze, 11 Iowa, 399. These cases were again followed in the case of the Town of New Hampton v. Conroy, 56 Iowa, 498.

Under section 456, power is given to “abate” nuisances and to “suppress and restrain” gambling houses. Now if, as we have held, this power to suppress and restrain does not authorize the passage of an ordinance providing punishment by fine for keeping a house of that character, it is difficult to see how such an ordinance can be approved punishing the maintaining of a nuisance by a fine, when the statute merely authorizes its abatement by the town.

The' shade of difference in the meaning between the words “abate” and “suppress” is so fine that it cannot be said that the power of punishment can be exercised in one case and not in the other. We do not feel called upon to overrule the cases cited. They have been too long acquiesced in to be now disturbed. The case of Mount Pleasant v. Breeze was determined more than twenty years ago.

The decisions which we have cited are not inconsistent with the case of Town of Bloomfield v. Trimble, 54 Iowa, 399. That was a prosecution under an ordinance providing a penalty for intoxication. It was held that the ordinance was valid under the general provisions contained in sections 456 and 482 of the Code, which empower towns to “preserve peace and order therein,” and promote the comfort and convenience of the inhabitants.

No express provision is made defining the power of towns over the offense of intoxication as is made in the case of maintaining a nuisance or keeping a gambling house or house of ill-fame. The same may be said of the case of City of Centerville v. Miller, 57 Iowa, 56 and 225. In that cáse it was held that the town had power, under the general provisions of the sections of the statute above cited, to punish the keepers of disorderly hotises, because they are authorized to “prevent” riots, noises, disturbances and disorderly assemblages. An ordinance prohibiting these offenses under proper penalties is about the only preventive which we could conceive.

The case before us is different. The statute explicitly determines that maintaining a building in a street is a nuisance, and that incorporated towns and cities may abate nuisances. Having in express terms prescribed the power over this subject, under the authority of the cases above cited, such power cannot be extended.

2. practice courWsSof judgment, These views dispose of this case. The idea that the ordinance may be void as to the penalty but valid as to that part which provides for the abatement of the obstruction, Cannot affect this case. Here the defendant was prosecuted and fined. Ve cannot affirm a part of the case and reverse the remaining part. The principal thing is the penalty, and the order of abatement is a mere incident.

It is unnecessary that we should determine the other questions in the case, in view of the fact that the ordinance is void as applicable to 'this offense, and there can be no retrial under it. There can be no great hardship in the limit thus placed upon the power of ’municipal corporations. The law of the State prescribing and punishing the maintenance of nuisances is ample for the protection of the public.

Reversed