City of Butte v. Peasley

HuNT, J. The defendant was adjudged guilty of vagrancy, in violation of section 1 of ordinance 55 of the city of Butte. The complaint originally made in the police court of the city of Butte was signed by Charles Swanson, a policeman. It charged the defendant with a violation of section 1 of ordinance 55 of said city, entitled “An ordinance relating to vagrants, opium smoking and obstructing sidewalks,” and contained the following averment: “That upon information and belief, at and in said city, the said defendant, then being, did then and there violate said section of said ordinance, by willfully and unlawfully being an idle and dissolute male person who loiters in and about saloons, gambling houses, and houses of prostitution, and in being a first class pimp.” The defendant appealed to the district court from the judgment in the police court. In the district court the defendant demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The court sustained the demurrer and dismissed the case for the reason that the complaint contained scandalous matter. The defendant was discharged. The city of Butte appealed. [304] We are constrained to reverse tbe ruling of tbe court. Tbe complaint stated an offense, by charging tbe defendant with having unlawfully been an idle and dissolute ,male person, loitering about saloons, gambling bouses, and bouses of prostitution. Tbe court seems to have taken this view of tbe main allegations of tbe complaint, as tbe dismissal was put upon tbe express ground that tbe complaint contained scandalous matter. Plainly, tbe matter considered scandalous were tbe words concluding tbe charging part of tbe complaint, viz: “and being a first-class pimp.” These words constituted an allegation of matter unbecoming tbe dignity of tbe court to bear. It would therefore have been eminently proper for tbe court, of its own motion, to strike them out, and to severely rebuke tbe complainant or attorney who bad used them, and tbe magistrate of' tbe city who bad permitted them to be used. But tbe action should not have been dismissed because a portion of tbe complaint was irrelevant or scandalous. Section 101 of the Code of Civil Procedure of 1887 provides that irrelevant matter inserted in a pleading may be stricken out upon such terms as tbe court may, in its discretion, impose. This section — indeed, tbe inherent power of a court — is sufficient to enable it to strike out of any pleading scandalous language not material to tbe matter in dispute. Tbe following authorities are in point: Baylies, Code Pl. p. 365; McVey v. Cantrell, 8 Hun. 522; 1 Daniell, Ch. Pl. & Prac. *p. 351. Tbe word “pimp” in the complaint, is by itself not necessarily so objectionable. Webster defines “pimp” as one who provides gratification for the lust of others; a procurer; a pander. It is likewise defined in substantially the same language in tbe Century dictionary. It is particularly offensive, however, in this complaint, by tbe language connected with its use. Scurrility and slang have no proper place in a pleading. Naturally, tbe word, by its significance, is used as a term of opprobrium, bearing cruelly upon tbe moral character of a person so charged. But tbe court ought to have stricken out the objectionable language, instead of dismissing tbe action; for, [305] independently of the objectionable words, the defendant was sufficiently charged with vagrancy. The order sustaining the demurrer and dismissing the action is reversed. Reversed. PembeetoN, C. J., concurs. De Witt, J., not sitting.