37 Iowa 462 | Iowa | 1873
The questions raised on this appeal will be considered in the order we find them presented in the arguments of counsel.
The ordinance forbidding the sale of beer does not permit the selling of any quantity and does not make the offense dependent upon the unlawful selling of any quantity. It forbids the sale of beer. The sale of a greater or less quantity is equally prohibited. The information alleges the sale of beer, and this necessarily implies the sale of some quantity. Whatever that quantity may have been, its sale was unlawful. As the quantity had nothing to do with the offense there is no reason why it should be alleged in order “to enable a person of common understanding to know what is intended, and the court to pronounce judgment upon a conviction according to the law of the case.” Rev., § 4659. In the State v. Clare, 5 Iowa, 509, it was held that an averment of the price at which liquors were unlawfully sold is not necessary to describe the offense under this section. As neither price nor quantity are ingredients in the offense, further than that some quantity must be sold, which is sufficiently averred by the charge of selling, allegations in regard thereto are not demanded by the statute cited. See Megowan v. Commonwealth, 2 Metc. (Ky.) 3.
The cases from the Indiana Reports cited by defendant’s counsel have no application or bearing upon the point, as they were decided under a statute against retailing intoxicating liquors without license. As the quantity sold determined whether the act charged amounted to retailing, 'it was very properly held that an averment in regard thereto was necessary. See Cool v. The State, 16 Ind. 355. Other cases cited by the same counsel, in our opinion, fail to support their position.
This statute is claimed by counsel to be in conflict with the constitution, article 3, section 30, page 5, which forbids the general assembly to pass any local or special law for the incorporation of cities and towns.
In the first place the provisions of the law in question are neither special nor local, but apply alike to all the towns and cities of the State, existing under special charters, as the town of Newton, which was incorporated by chapter 122, act sixth general assembly. Nothing more need be said on this point. The statute being general, applicable to all cities and towns of a certain character, it may be admitted that it has the effect of and must be regarded as an amendment of their charters, yet it is not, for this reason, obnoxious to the constitutional provision referred to, which does not forbid the legislature, by general enactment, to alter the charters of all towns or cities. It is true that this cannot be done by special acts applicable to a single city or town or more, and not to all, and this is all that is decided by the cases cited, and relied upon by counsel, namely: Ex parte Pritz, 9 Iowa, 30 ; Davis v. Woolnough, id. 104; Huntington v. Bissell, 10 id; 145; McGregor v. Boyle, 19 id. 43. The control and power of the State over municipal corporations is not limited by the constitution; the manner of their exercise is simply restricted and directed in the provision under consideration. The State
In the first place, if the legislature, under the exercise of its constitutional authority, has bestowed the power in question, and this we have just seen has been done, it is difficult to see how a prior enactment will defeat the more recent expression of legislative will. . But there is no difficulty or obscurity in the question. The sale of wine and beer was declared to be lawful by Revision, 1583, which removed the prohibition before resting thereon. In the exercise of its power, the State confers upon the cities and towns the authority to forbid the traffic in these liquors. This is done for the same purposes and upon the same grounds that these municipalities are clothed with power to regulate markets, etc., and forbid many acts of the citizen which are lawful, so far as the statutes of the State are concerned. The authority conferred is of the police power of the city, and rests upon the same foundation.
Counsel, in urging the objection to the exercise of the power in question, on the ground that it is in conflict with the law of the State, omit the consideration of the fact that the power is conferred by the State. Unquestionably the ordinances or by-laws of a municipal corporation, to be of force, must be in accord and not in conflict with the laws of the State. How can they be said to conflict with State laws when they are expressly authorized thereby ?
The cases cited by counsel to support their position are those which hold that under the general power of a municipal corporation to pass by-laws, only such reasonable ordinances which are in accord with the statutes of the State may be enforced. Commonwealth v. Essex N. E. R. Co., 27 Penn. St. 339 ; Southport v. Ogden, 23 Conn. 128; Dunham v. Trustees
Among the many authorities supporting the views we have expressed, the case of The State v. Binder, 38 Mo. 450, will be found to rest upon a state of facts similar to those of the ease before us, and, as we conceive, involved the application of the same principles. A State law forbids the sale of property on Sunday or the keeping of establishments open for such sale on that day. Under authority of a law of the State, the city of St. Louis passed an ordinance permitting establishments for the sale of refreshments, to be kept open on Sunday; and the ordinance was held valid.
The objection that this prosecution is in the name of the State is technical and does not involve the substantial rights of the defendant.
In criminal cases we are required to “ examine the record without regard to technical errors or defects which do not affect the substantial rights of the parties, and render such judgment on the record as the law demands.” Rev., § 4935. Applying this provision to the case, we are of the opinion that the judgment ought not to be disturbed because of the fact that the case was prosecuted in the name of the State even should it be held that the prosecution ought to have been in the name of the town — ■ a point that we do not determine.
We are brought to the same conclusion on the ground that the objection was first raised in the court.
It has been ruled that one convicted of seduction cannot object, in this court, to the judgment, on the ground that the prosecution was barred by the statute of limitation when no such defense was raised in the court below. State v. Groome, 10 Iowa, 308.
Neither can the objection for the first time be urged here, that a defendant was tried for more than one offense “ at the same time and upon the same information.” State v. Mallery, 11 Iowa, 239.
Evidence improperly admitted, and erroneous, instructions given in a criminal prosecution when no prejudice is wrought a defendant, and other rulings of like character do not demand the reversal of judgment of conviction. State v. Knight, 19 Iowa, 94; The Same v. Thompson, id. 299; The Same v.
We have considered all the points made by appellant, and conclude that the judgment in the district court ought to be affirmed.
Affirmed.