Show LECHERY UPHELD T 1 fy f y r i Is not hero in tho inter on cut of morality jalo 1 j 1 IS W YET j in arl touched by j iA tithe mants m alie vandercook Vaner cook habeas corpus case ou saturday judge an tools the documents submitted the following decision this is a barj ant for lewd and lascivious conduct issued to wil up the petitioner oscar it is alleged Is unlawfully de of his i ti hoberty by the i dent th e petition and writ re quiren the marshal to show by what petitioner in custody in the marshals return he etalea in substance that he holds him by virtue of a warrant which is attached to the return the warrant states the authority to be an section 31 of the city ordinances on pago the offense is described to be that one acar vandercook was unlawfully guilty of lewd and conduct with one mrs field the date alleged offen other particulars stated this return brings up two questions first whether in the warrant an offense is shown to have been committed against the ordinance second la the ordinance valid according to the charter oj the city in the question as to the power of the pass the ordinance the general rule af law is that una der and state cities and villages are delegated powers and that they have no power other than these that are given them or are cap reed one authority says that cities have only such powers as ar necessary to en force those that they may already have A well known rule of law is that any reasonable doubt is resolved against the city the legislature gives no power to the city to pass ordinances by implication 1 tand no warrant for the section in question with the exception of the clause relating to prostitution power to restrain prostitution means the power to punish prostitution section seven referred to has been claimed to under the general welfare cause and is found to differ somewhat as to the general terms general welfare is here understood to have power to pass ordinances that the general welfare demands it is the broadest term that can be used this power to enact ordinances is ench as only to the general welfare I 1 suppose that the broadest term used m this section is I 1 whether under such an expression the city can punish for i adult or are rimes defined the general rule laid down is that the city has no pow eito degue a criff already ie fined by the state laws the leg i lature has expressed its intention municipality shall no be i of the power to crimes when this arinie is delegated to the city through its charter not so provide the city has no power to punish under the general wel tare clause the city cannot punish bior adultery and fornication when th legislature provides for these 1 the question h then whether the city has authority for this ordinance section 39 prelates pr elates to swimming in reverb and other waters adjoining the city and to regulate the time and places for bathing it docs not prevent any person from in the house the other part of alie section refers to indecent exhibition and implies tant out of eight of the public eye is no exposure at all tho general expressions pres of the section must be considered together it must be understood to prevent indecent c m duct before another so as to offend the public conduct and indecent conduct have a different meaning they are defined by common law and it is to be presumed that the legislature had thi difference in view as it is found in the common law therefore it is reasonable to suppose tu atthe legislature authorized tho punishment of conduct understood aa by the com mair baw A private act ie riot de nned by the common law as a crime when both go together butof the e under the connecticut law it lu not an so that this section 38 according to the ordinance and ita own interpretation deap indecent conduct that is open and not private and the presumption is that the city council used the statute as it has been held that the offense arnutt be open or public I 1 am disposed to construe this ordinance in the light of the statute to mean open conduct lewd and lascivious conduct has a tendency to arouse amorous passions in the minds of those who arc witnesses of it but if committed in tho houte alone has a different effect the legislature has the power to au the city to prevent adultery and fornication yet in the charter of this city they arc not found which appears to be an intentional omission where in the charter mentioned it gives power to punish that bouc neo ChiO Territory has atone time defined a cerica ot and imposed heavy penalties but that law has been repealed I 1 am of the opinion that this ordinance must be con in tho light of open and public conduct the warrant docs not describe any crime the wari rant must be found in the law to ft for an luense not described in the law is false imprisonment if the city wishes to imprison for that offense it must boso doso under the laws I 1 therefore order the petitioner discharged the salt like herald says the end how cyer is not yet there is among the ordinances one which reads as follows it was passed december 1877 and as it was framed by mr bawling himself it is fair to suppose that it is injun lerable ne rable at any rate it will be curious tb note what loophole he has left open through which it may be who either k pepa a house of ill fame resorted to for the purpose of prostitution or lewdness or wilfully reri idea in such houses or theretofore thereto for shall be liable etc if through any the court should rule that this ordinance ie invalid the city haa idill another resource that of proceeding against the criminals statute on page of the compiled laws of utah will be found the following section sec agg every person who keeps a house of ill fame in thia territory resorted to for the purpose of prostitution or lewdness or who wilfully resides in such house or resorts thereto for lewdness is guilty of a misdemeanor we know of nothing to prevent the officers from proceeding under the statute unless indeed judge zane took it into his head to suspend or repeal the statutes affecting th safety of one of hia pets |