Town of New Hampton v. Conroy

Seevers, J. 1. municipai, reguStingns' salo of wine and Deer: conditions imposed. I. The sale of intoxicating liquors other than vinous and malt is prohibited by the laws of the State. Cities and towns incorporated under the general incorporation law have the power “to renulate, ... x . , , , license, and tax or prohibit beer and wine saloons, x ’ * * and to regulate or prohibit the sale of intoxicating liquors not prohibited by the State.” Chapter 24, Laws of Sixteenth General Assembly; Miller’s Code, § 463. As we construe this statute, the plaintiff was prohibited from passing any ordinance regulating or prohibiting the sale of intoxicating liquors other than wine and beer. If in [500] attempting to carry out powers clearly conferred penalties have been attached to acts over which the plaintiff did not have jurisdiction, the ordinance so providing is void, and cannot be enforced. Any ordinance which prescribes needful rules and regulations in relation to the sale of wine and beer within their limits may undoubtedly be enacted by cities and towns. The provision, whatever it may be, must relate to the sale of wine and beer. The ordinance in question, under the pretense of regulating the sale of wine and beer, provides penalties for the sale of'other intoxicating liquors. How can it be said such penalties regulate or can have any effect on the sale of wine and beer. The power to prohibit is just as clearly granted as that to license or regulate. Now, suppose an ordinance should be passed prohibiting the sale of wine and beer, and it also provided that any one selling other intoxicating liquors should forfeit and j>ay one hundred dollars for each violation of the ordinance. Could such an ordinance be enforced? We are of the opinion it could not. No distinction in principle can be drawn between such an ordinance and the one in question. The case of Hv/rber v. Baugh, 43 Iowa, 514, is distinguishable because the ordinance in that case regulated and had reference to the sale of wine and beer only. II. Authority is conferred on cities and towns to “ authorize the destruction of all instruments and devices used for the purpose of gaming.” Code, § 456. The ordinance provides that any person who obtains a license and permits on the premises described in the license “ any gambling or gaming for money ” shall forfeit and pay the sum of one hundred dollars for each violation of the ordinance. The offense described in the ordinance is a crime, and punishable as such under the laws of the State. The only power conferred on the plaintiff is to authorize it to provide by ordinance that all instruments and devices used for the purpose of gaming should be destroyed. No [501] power is conferred to punish any one or prescribe penalties for permitting gambling or engaging therein, and yet this is what the ordinance does. A similar ordinance under a statute much like the foregoing was held to be void in The City of Mount Pleasant v. Breeze, 11 Iowa, 399. Nor is there any distinction in principle-between the case at bar and The City of Chariton v. Barber, 54 Iowa, 360. These cases are distinguishable from Town of Bloomfield v. Trimble, 54 Iowa, 399, on the ground that in the latter no express authority was conferred on the plaintiff to punish any person for drunkenness, nor was the same prohibited. Therefore, it was held under the general powers conferred on cities and towns by Code, § 182, the plaintiff might declare drunkenness an offense, and punish any one who violated the ordinance. But in the case at bar the power expressly conferred negatives the thought the plaintiff can punish by ordinance any person who may permit gambling otherwise than prescribed by statute. In our opinion the ordinance is void, and the demurrer was correctly sustained. Affirmed.