18 Iowa 59 | Iowa | 1864
The charter of the city of Burlington was passed by the Legislative Assembly of the Territory of Iowa, and approved June 10th, 1845. The only portion thereof under which the plaintiff claims the right to license the defendant, is found in § 15 of said charter, and is as follows : “ And the said city council shall have full and exclusive power to grant or refuse licenses to tavern-keepers, inn-holders, retailers of spirituous liquors by less quantity than a quart; keepers of ale and porter houses, and shops and all other houses of entertainment.” On the 3d day of November, 1862, the city council of Burlington passed an ordinance entitled, “ an ordinance in relation to houses of entertainment kept as a resort for the purpose' of drinking beer, wine, ale, &c.”
Sec. 1. That it shall be unlawful for any person or persons, either in his or their own right, or as agent or clerk for another or others, to open or keep any house or place within the city of Burlington, where persons resort for the purpose of drinking wine, beer, ale or other malt or spirituous drinks, which are permitted to be sold by the laws of
Section two provides that the amount of each license shall be fifty dollars per annum.
Sec. 3. Every person who shall violate the provisions of this ordinance shall, upon conviction thereof before the mayor of said city, or some justice of the peace, be fined not less than ten dollars for the first offense, not more than twenty dollars for the second offense, not more than thirty dollars for the third offense, and the fine to be increased not more than ten dollars for each additional offense; provided, however, that the fine for any offense shall not exceed one hundred dollars, and the magistrate trying the case shall render judgment for the fine and costs, and the defendant shall stand committed to the county jail until the fine and costs are paid.
The prosecution in this case was under this ordinance.
It will be seen by these statutes that at the time the charter of the city of Burlington was enacted, it was lawful to sell, by retail, spirituous and vinous liquors to be drank on the premises. This was afterwards made unlawful, and by the act which prohibited it, so much of the city charter as authorized it, was repealed. But it was afterwards made lawful to sell beer, cider and wine, provided they were manufactured from fruits grown in this State. The ordinance of the city of Burlington, under which this prosecution was commenced, was passed after this last law authorizing the sale was enacted. The question therefore arises, whether the city may not regulate and license the sale of beer, cider, wine, &c., since such sale is again made lawful. The law giving the right so to regulate it having been repealed, was not revived by the repeal or change of the law, which repealed it. Or as it is clearly stated in Rev., § 29, “ the repeal of a statute, does not revive a statute previously repealed.”
The ordinance under which this prosecution is had, was framed especially with a view to include those houses specified in that portion of the charter which has been repealed. The words “house of entertainment,” do not occur in the ordinance, but it does specify houses “ where persons resort for the purpose of drinking wine, beer, ale or other malt or spirituous drinks.” The information, it is true, in naming the offense, calls it “ keeping a house of entertainment;” but in stating the acts constituting the offense, it specifies the keeping of a house “ for the purpose of drinking beer, wine,” &c., without license; thus showing the alleged offense to be within the ordinance as well as within the repealed language of the charter.
The power of the city council to pass the ordinance under which the defendant is prosecuted, is not claimed as a necessary power to the complete performance of a. duty required of them by law, nor as necessary for the purpose' of carrying into effect the powers expressly granted, nor as incidental to their very existence; but it is claimed that it is expressly given by the language of § 15 of the charter
The right to inflict imprisonment as a penalty for a violation of an ordinance, must be given by the charter, otherwise no such penalty can be legally annexed or enforced. The rule is, they can only be enforced by a pecuniary penalty, unless there is some express act giving power to inflict other punishment Gray on Corp., 8; Sedgwick on
The judgment of the District Court is
Affirmed.