STATE of Iowa, Appellant, v. Jean ALDRICH, Appellee.
No. 57150.
Supreme Court of Iowa.
July 31, 1975.
231 N.W.2d 890
Does “irreconcilable” in § 11(3) go farther than “inconsistent” in the Amendment? Irreconcilable means “impossible to make consistent or harmonious” while inconsistent means “incongruous, incompatible, irreconcilable.” Webster‘s Third New International Dictionary (1969). Apparently the legislature believed the inclusion of § 11(3) would constitute an aid in construction when a state law is laid beside an ordinance or proposed ordinance.
This court is the final arbiter of what the
We think, however, that the present problem falls under another rule of law—assuming that “irreconcilable” is stronger than “inconsistent.” The legislature has considеrable authority to lay down rules for the interpretation of its own statutes. E. g.
We hold § 11(3) to be valid as a rule of interpretation.
XV. Specific Powers in Division II of Home-Rule Act. Plaintiff conceded in his argument that the specific grant of powers to cities in division II of the home-rule act does not violate the Home Rule Amendment, and we so hold.
XVI. Home Rulе Charter Requirements. Plaintiff likewise conceded that the home-rule charter requirements in division IV of the home-rule act do not violate the Home Rule Amendment under our holding in Bechtel v. City of Des Moines, 225 N.W.2d 326 (Iowa), and we so hold.
We thus reject plaintiff‘s attack on the bond proceedings and on various provisions of the home-rule act and uphold the decision of the trial court.
Affirmed.
All Justices concur except HARRIS, J., who concurs in result.
Thomas L. Root, Council Bluffs, for appellee.
Heard by MOORE, C. J., and REES, UHLENHOPP, REYNOLDSON and HARRIS, JJ.
REYNOLDSON, Justice.
This appeal requires us to determine the constitutionality of our criminal statute relating to dead bodies:
“714.22 Exposing dead bodies. If any person willfully and unnecessarily, and in an improper manner, indecently expose, throw away, or abandon any human body, or the remains thereof, in any public place, or in any river, stream, pond, or other place, he shall be imprisoned * * * or be fined * * *.”
A county attorney‘s information filed November 6, 1973 largely rеstated the statute by charging defendant
“Did willfully and unnecessarily, and in an improper manner, indecently expose, throw away, or abandon any human body, or the remains thereof in a hill behind the residence at 386 Lincoln, Council Bluffs, Iowa,”
in violation of
January 25, 1974, defendant filed her demurrer asserting
On the same date trial court sustained the demurrer by order which stated, inter alia:
“The Court, having tried a companion case to these matters and being familiar with the evidence that would be submitted herein, and having examined the minutes of the testimony relative to the charge involved * * *, believes that the evidence in this matter is to the effect that a fetus between 24 and 26 weeks of development was stillborn to one Deborah Belt. That at this time the defendants in the instant cases were present in the dwelling where this occurrence took place. That immediately thereafter, some of the parties present wrapped the fetus in a new blanket, placed it in a metal box and buried it in the back yard of the home * * *. That this occurred in Jаnuary or February of 1972. That in October of 1973, the police received an anonymous telephone call * * * [and] * * * went to the area and dug up the metal box containing the fetus.”
Trial court then reasoned since the body remained buried for “18 or 19 months” defendant “in no sense of the word” could be found guilty оf exposing the body. Further, it concluded burial precluded conviction for throwing away or abandoning the body. Finally, it held the terms “unnecessarily“, “in an improper manner” and “indecently” were unconstitutionally vague.
Appealing, the State asserts trial court was in error in considering “evidence” in ruling on defеndant‘s demurrer, and erroneously determined
I. It is apparent this demurrer basically alleged unconstitutionality of the statute on its face, and not as applied. See State v. Kueny, 215 N.W.2d 215, 217 (Iowa 1974) (“By way of exclusion, since this appeal stems from a judgment sustaining defendant‘s demurrer, our review is confined to alleged facial invаlidity * * *“). Where a statute is thus subjected to a facial attack, the sole test of constitutionality is what may be done under its authority rather than what was done. In re Henderson, 199 N.W.2d 111, 122 (Iowa 1972) (special concurrence by five justices); Chicago, Rock Island and Pacific R. Co. v. Liddle, 253 Iowa 402, 409, 112 N.W.2d 852, 856 (1962).
II. A careful study of trial court‘s order persuades us it did not consider evidence in ruling on the constitutional issue, but rather considered the circumstances аlleged in the minutes attached to the information, and judicially noticed matters learned from a companion case, in determining burial of the fetus precluded application of
It is obvious the order appealed from cannot be supported by this rationale. Matters alleged in the minutes are not part of the indictment or information. Any insufficiency therein will not serve as grounds for demurrer to the indictment. State v. Kobrock, 213 N.W.2d 481, 483 (Iowa 1973); State v. Salter, 162 N.W.2d 427, 431 (Iowa 1968); State v. Youngblut, 257 Iowa 343, 345, 132 N.W.2d 486, 487 (1965); see §§ 777.2, 777.5, The Code. A proper method to raise this issue would have been by motion for bill of particulars (§ 773.6) followed by a motion to set aside the information (§ 773.7). State v. Batchelor, 180 N.W.2d 457, 459 (Iowa 1970).
Moreover, it is generally imрermissible for a trial court to take judicial notice of proceedings in a related but wholly different case. Johnson v. Johnson, 188 N.W.2d 288, 292-293 (Iowa 1971).
We agree with the State these matters were not before the court and could not furnish grounds for sustaining the demurrer.
III. We turn to the more troublesome issue, whether
Applicable principles, with supporting authorities, were summarized in State v. Kueny, 215 N.W.2d 215 (Iowa 1974).
When constitutionality is merely doubtful this court will not interfere as it must be shown that legislative enactments clearly, palpably and without doubt infringe upon constitutional rights before an attack will be upheld. Id. at 217.
Every reasоnable basis of support for a statute must be negated by the attacking party. Id. at 217.
A statute is unconstitutionally vague, and thus offends due process, if it does not give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly. Id. at 217.
Terminology of a statute meets the constitutional test if its meaning is fairly ascertainable by reference to similar statutes, prior judicial determinations, reference to the dictionary, or if the questioned words have a common and generally accepted meaning. Id. at 217.
Defendant in this case made no constitutional attack on the words “abandon” and “throw away“. Apparently it was clear those words do have generally accepted meanings. Neither is a challenge made to the term “willful” which, in the context of this statute, means an intentional act inconsistent with good faith and good intentiоns. Hawthorne v. Delano, 172 Iowa 44, 55, 152 N.W. 17, 20 (1915). Trial court‘s conclusion a broad reading of “throw away” or “abandon” might subject to prosecution anyone burying a body ignores the judicially-recognized meaning of “willful“.
We have already noted defendant‘s demurrer constitutionally attacked only the
The term “unnecessarily” has not been judicially defined in Iowa. Black‘s Law Dictionary, p. 1707 (rev. fourth ed. 1968) defines “unnecessary” as “not required by the circumstances of the case.” Webster‘s Third New International Dictionary (1966) defines “unnecessarily” as “not by necessity” and “necessity” as “a condition arising out of circumstances that compels to a certain course of action.” The term has been defined to mean heedlessly and without necessity. St. Louis & S.F. R. Co. v. Franklin, 58 Tex.Civ.App. 41, 49, 123 S.W. 1150, 1155 (1909), and in a criminal prosecution has been held to be not so uncertain in meaning as to deprive an accused of due prоcess. State v. Persons, 114 Vt. 435, 437, 46 A.2d 854, 856 (1946).
“Unnecessarily” is a term of common usage, has a generally accepted meaning, and clearly conveys a legislative intent to preclude from the ambit of
The second statutory phrase under scrutiny is “improper manner.” The State appears to argue “improper mаnner” in a
In State v. Graham, 203 N.W.2d 600, 603 (Iowa 1973) we said “improperly” is a word of such ordinary usage and so generally understood as to permit but not require it to be instructionally definеd. The same word in § 723.1, The Code (“Interference with administration of justice. If any person attempt in any manner to improperly influence, intimidate, impede, or obstruct any * * * officer * * *“) withstood constitutional attack in State v. Hartung, 239 Iowa 414, 428, 30 N.W.2d 491, 499 (1948),
As found in
We thus reach the final challenged phrase, “indecently expose.” We are confronted of course with decisions holding the word “indecent” unconstitutionally vague, the most recent being State v. Kueny, supra at 218, where we said:
“It may be that at one time words such as are here involved were deemed to have an ordinarily understandable meaning. * * *
“But common usage thereof has been so generalized as to encompass an infinite variety of behavioral patterns. This in turn has eroded the effective employment of such terms in any statutory enactment, absent an attendant specific definition thereof, as descriptions of proscribed ultimate criminal conduct.” (Emphasis supplied.)
The State attempts to distinguish these authorities, arguing although changing sexual mores have rendered meaningless the term “indecent” in a sexual sense, the decencies (and therefore indecencies) of treatment of dead bodies still prevail.
This court has judicially considered “the universal sentiments and feelings of mankind as to their dead,” In re Disinterment of Body of Jarvis, 244 Iowa 1025, 1034, 58 N.W.2d 24, 29 (1953), and observed such sentiment includes a law-granted right to decent burial, Anderson v. Acheson, 132 Iowa 744, 748, 110 N.W. 335, 336 (1907).
It is obvious the word “indecently” in
IV. However, this conclusion does not necessarily mean the statute as a whole is unconstitutional or that defendant‘s demurrer should have been sustained.
We must determine whether after excising the phrase “indecently expose” there remains a viable statute expressive of legislative intent.
Although we have said where there is no severability clause in the statute there is a presumption the statute was meant to stand or fall in its entirety, State v. Books, 225 N.W.2d 322, 325 (Iowa 1975), such clauses are of recent origin, 2 Sutherland Statutory Construction § 44.08, p. 349 (Sands fourth ed. 1973). The statutе sub judice dates back to the
V. It is apparent
Had trial court applied the severability doctrine, supra, the demurrer should have been overruled as there remained, after deleting “indecently expose“, a viablе statute, and consequently, a valid charge. Those words in the information may be stricken on defendant‘s motion or trial court‘s own motion.
In so holding we are not unmindful of §§ 777.2(2) and 777.8, The Code, as interpreted by State v. Talerico, 227 Iowa 1315, 1317-1318, 290 N.W. 660, 661 (1940) (A claim of unconstitutionality falls within § 777.2(2); if a demurrer is successfully sustained on this ground the judgment is final and defendant must be discharged). Here the constitutional assault successfully eliminated only one of the three methods by which the crime was disjunctively alleged to have been committed, and did not constitute a legal defense or bar to the prosecution within the intendment of § 777.8. As the demurrer was improperly sustained, there is no bar tо further prosecution for the same offense. Section 777.8, The Code (“* * * If a demurrer to an indictment is incorrectly sustained, such error shall not act as a bar to further prosecution for the same offense.“)
We therefore reverse and remand for further prosecution in conformance herewith.
Reversed and remanded.
MOORE, C. J., and REES and HARRIS, JJ. concur.
UHLENHOPP, J., concurs specially.
UHLENHOPP, Justice (concurring specially).
I concur in the result and in all of the court‘s opinion except the portion dealing with the words, “indecently expose.” I do not think those words are too vague. If we had a freedom of speech or press problem, we would have a different case, but I take it that we do not have such a problem.