59 Iowa 506 | Iowa | 1882
I. The ordinance upon which the prosecution is based, so far as applicable to the case, is as follows:
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.”
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
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.
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