State v. Gurlock

| Iowa | Jan 12, 1863

Wright, J.

If the words “In the name and by tbe authority of tbe State,” &c., bad been entirely omitted, we do not understand tbat tbe indictment would bave been defective. It certainly would not upon tbe authority of Wrockledge v. The State, 1 Iowa, 167" court="Iowa" date_filed="1855-06-15" href="https://app.midpage.ai/document/wrocklege-v-state-7090955?utm_source=webapp" opinion_id="7090955">1 Iowa, 167; Baurose v. Same, Id., 379. Tbe phrase in the Constitution (§ 8, Art. 5), “The State of Iowa ” constitutes tbe authoritative name of tbe State. It is in this name tbat all prosecutions must be conducted. And tbat tbe error in tbe name of tbe State or tbe spelling of tbe name of tbe county will not, under the circumstances, vitiate, ■ see clause 5, § 4660 of the Revision. These defects are not such as tend to the prejudice of defendant’s substantial rights on the merits. And see Hintermeister v. The State, 1 Iowa, 101" court="Iowa" date_filed="1855-06-15" href="https://app.midpage.ai/document/hintermeister-v-state-7090936?utm_source=webapp" opinion_id="7090936">1 Iowa, 101.

By tbe 29th section of tbe act incorporating Ottumwa (Acts of Extra Session 1856, p. 68), it is declared tbat tbe city council bave tbe exclusive authority to provide for tbe license, regulation, and prohibition of all exhibitions, shows and theatrical performance; billiard tables, ball and ten pin alleys, and places where games of chance or skill are played. * * * When the laws of tbe Statp permit or refuse licenses for tbe sale of intoxicating liquors, tbat matter shall be within the exclusive authority of said council, and it may at all times prohibit tbe retail of such liquors unless such prohibition would be inconsistent with tbe laws of tbe State at tbe time existing. And tbe said council is authorized to revoke or suspend any of tbe above licenses when it is deemed that tbe good order and welfare of tbe city require it.”

Existing a general law prohibiting the sale and traffic in intoxicating liquors, it is impossible for us to see how this section confers upon the city council the exclusive power to punish any one selling in violation of tbe general statute. Tbe power to license such places is not given to the city authorities by tbe language of tbe statute. To say that when the law refases a license, the city council alone has the power to prosecute and punish those selling intoxicating liquors would confer power certainly not expressly given, nor by any means deducible by the remotest implication. Then such a construction would by implication repeal pro tanto the general law — strip it of its otherwise uniform operation, and such a construction is never favored, nor allowed if one can be found which will uphold both statutes. And then assuming that the authority to license is given in any case, even when the laws of the State should permit the same: the matter “which is to be within the exclusive authority of said council,” is to be exercised, when prohibition is 'the rule, subordinate to the rights of the State.

Affirmed.