87 Iowa 226 | Iowa | 1893
The ordinance under which the arrests were made and trial had was, by agreement, made part of the record, and the demurrer was sustained upon the ground that the ordinance was invalid. The ordinance in question, so far as it pertains to the question involved, is as follows:.
"First. That the collection or. congregation of persons upon the streets or sidewalks of the city, and the marching or movement of persons in crowds or processions thereon, at such times and places, and in such numbers and manner, as to obstruct or impede public travel thereon, or to injuriously affect or interfere with the business of any person or persons on such streets is*230 hereby prohibited; and it is hereby made the duty of the mayor and city marshal to order all such congregations or processions of persons to quietly disperse; and the failure or refusal of any person or persons to promptly obey such order of the mayor or city marshal shall be deemed a misdemeanor, and, upon conviction thereof, such person or persons shall be fined in any sum of not less than one dollar and not more than fifty dollars, in the discretion of the court, and shall be imprisoned in the county jail until such fines and costs of prosecution are paid.
“Second. That the making of any noise upon the streets or sidewalks of the city, by means of musical instruments or otherwise, of such character and extent, and at such times and places as would likely cause horses and teams to become frightened and ungovernable, or of such character, extent and duration as to annoy and disturb others, is hereby prohibited; and it is hereby made the duty of the mayor and city marshal to order any person or persons making such noise to desist therefrom, and the failure or refusal of such person or persons to promptly obey such order of the mayor or city marshal is hereby declared to be a misdemeanor, and, upon conviction thereof, such person or persons shall be punished by a fine of not less than one dollar and not more than fifty dollars for each offense, in the discretion of the court, and shall be imprisoned in the county jail until such fines and costs of prosecution are paid.”
The grounds of demurrer are that this ordinance is unreasonable and unj ust, and prescribes a penalty, not for the violation of an ordinance, but for the refusal to obey an order of the mayor or city marshal. It is important to first determine whether the acts sought to be prohibited by the ordinance are such as .tbe city may punish by ordinance. We do not understand counsel to claim that collections and congregations of
We do not understand counsel for the defendants to question these general propositions. The real objection which they urge to the ordinance is that the offense is made to depend upon the whim or caprice of the mayor or city marshal. It is true that, under the ordinance, when persons are arrested and brought for trial, it is incumbent on the prosecution to show by evidence that the order to desist from making the disturbance was given by the mayor or city marshal. But it is also incumbent on the prosecution to prove that the person
In our opinion, the ordinance in question is not unreasonable. It is applicable to all persons who, by violating its provisions, subject themselves .to its penalties ; and the mere fact that no arrest can be made unless the mayor or marshal shall order the offender to cease from violating the ordinance, instead of being oppressive on the citizen, operates as a warning to him to desist from a violation of the ordinances. He should not be heard to complain of this feature of the ordinance.
The order of the district court sustaining the demurrer to the information is reversed.