Ogden City v. McLaughlin

Boreman, J.: A complaint was made before a justice of the peace against the defendants for the violation of a city ordinance of Ogden City. The defendants demurred, and, on appeal to the district court, the demurrer was sustained, and the defendant discharged. Thereupon the plaintiff appealed to this court. The complaint charged “that John McLaughlin, a male person, and Ray Gallagher, a female person,” “did commit the offense of resorting to a house of ill-fame for lewdness, by then and there wilfully and unlawfully resorting to and residing in, for the purpose of lewdness, a house of ill-fame and disorderly house and place resorted to for illicit sexual commerce, prostitution, and lewdness. Said house being situated,” etc.; “contrary to the form of an ordinance of Ogden City, entitled ‘Revised Ordinances of Ogden City,’ c. 10, sec. 29, relating to crimes and punishments, passed on the twenty-seventh day of January, A. D. 1881, as amended August 6, 1886, and [388] September 10, 1886, in such case made and provided, and against the peace and dignity o£ said city.” The first ground of the demurrer is the only one that we can consider, as but two grounds of demurrer are authorized by the statute, and the other three grounds set forth in this demurrer do not seem to belong to either of the two thus authorized by the statute. The ground which we are to consider is as follows: “(I) That the said complaint does not state facts sufficient to constitute any offense against said Ogden City, or the ordinances thereof.” The latter clause is surplusage, being unauthorized by the statute. The question for our consideration, therefore, is whether the complaint does state facts sufficient to constitute a public offense. It seems that a violation of a city ordinance is, so far as the demurrer is concerned, at least, to be treated as a public offense. Laws Utah 1884, p. 154, sec. 107. It is contended that the plaintiff was by its charter not authorized to pass the ordinance under which this complaint was filed. If it was not so authorized, the conclusion is inevitable that the complaint does not state a wrong which the law recognizes as an offense, or which the city could make an offense. It is a general rule that a municipal corporation has only such powers as are expressly granted, or essential thereto, or plainly implied therein. 1 Dill. Mun, Corp., secs. 89, 91. And where there is a doubt as to the existence of the authority, such doubt is resolved against the corporation. Id. sec. 91. The charter of Ogden City, section 35, gives to it the power by ordinance “to restrain and punish * * * prostitutes.” Certainly that section does not and cannot embrace the offense of “resorting to house of ill-fame for lewdness,” that being the one of which the defendants are charged. The authority embraced in that section is to restrain “prostitutes.” It does not embrace the restraining of lewdness, unless it be the lewdmess of prostitutes. It does not authorize the restraining of prostitution, except it be by restraining in some way the prostitutes. Defendants are not alleged to be prostitutes, or to be guilty of prostitution. IVe are referred to section 9 of “An act amending the charters of incorporated cities,” which gives power to the city “to suppress or restrain [389] bawdy and other disorderly bouses, and punish the keepers thereof.” Comp. Laws, 697. This section empowered the plaintiff tq do two things, viz., “To suppress bawdy and other disorderly houses,” and “tó punish the keepers thereof.” Keeping in view the two general rules above referred to, we know of no authority for saying that the “offense of resorting to a house of ill-fame for lewdness,” could be embraced under the clause to “suppress or restrain bawdy or other disorderly houses.” That section was made to enable the corporations to break up the places of resort, and did not contemplate the punishment of individuals for resorting thereto, nor even to punish the keepers of such places; otherwise the closing provision to “punish the keepers thereof” would not have been added. The defendants are not charged with being the “keepers” of any such place. , The two sections quoted are the only sections of the statute bearing upon the subject, and to which our attention has been called. No matter how reprehensible the conduct of a person may be, yet no punishment can be inflicted without a law authorizing it; and such law must clearly cover the case. We do not think that the sections referred to gave the plaintiff power to punish the defendants for the offense charged against them. The order of the district court, therefore, sustaining the demurrer, was proper. The orders and judgment of the district court are affirmed. Zane, C. J., and HeNüeesoN, J., concurred.