Show THE TILE LATEST virtually nullifying IN im ini por pontaut tant ordinances of ogden 1 city lat in the district court for the first judicial Ditt rift of he territory of utah county of weber 0 W ir 9 A J presiding mg CITY plaintiff t vs NATHAN KIMBALL defendant J OPINION OP OF THE COURT UPON TO TUB THE COMPLAINT transcribed from the record Ke cord the court this is the case of og 7 den city vs nathan kimball an ap op peal from the Justi justices court in and for the city of ogden and which was argued yesterday upon demurrer it is a cave in which the complaint ia Is filed under tinder a 6 city ordinance it ie is quite impossible for the court to determine under what ordinance the complaint is filed whether it is what ie is known as section 3 ur or section 7 of cli chapter apter 10 relative to crimes and their punishment bent the COIL states that nathan kimball of eaid said city on the second day of june 1885 within the certion sie ate limit limits of said ogden city unlawfully and wilfully did co commit the offense ot of a breach of the pea ceby coby then and arid there in the presence ot of thomas II 11 ballantyne who was then and there the acting marshal of said city of ogden dil wilfully disturb the peace und and quiet of the neighborhood and the persons there being and the th e prace peace and slid quiet of one charles hemmaway there being by threaten w y to strike and whip w hip the said hemenway and by using profane language and offensive epithets towards the eaid said nd all of which occurred on main alain street in said city at ur or near tu to tho the united stale tot fire five contrary to the form of the rep ordinance ordin ame of said city entitled reviled ged ordinances of ogden city chapter cli apter 10 relating to cr crimes bates and punishments passed on the da day y of january 1881 in such case made and provided and against the peace and dignity owsald of said city chapter X which it is alleged th this is complaint comes under conta contains 1 no some 42 sections sect ione r relative to assa all to riot to disturbing public assemblies escape af prisoners indecent and anti obscene language and arid conduct etc so it will be sew se that the complaint is exceedingly indefinite it is claimed that the defendant had violated the provisions of that chapter I 1 but it no nowhere here points out what section or what portion of the chapter had been violated it is claimed however that the complaint is all suf fi fai bently definite tit unite because it sets forth the facts and that trum reading th the e complaint wo we can then auril turn to the ordinances and searching them through possibly fled ond some section that hag 1 been violated but ilat we hare have this difficulty alty section 3 provides pro yides every person who within the lim its of the theiry o ity shall maliciously aud wilful wilfully ix disturb te tile peace or quiet of any neighborhood family or per bertion tion by loud or unusual bolso or by tu offensive conduct or by threatening quarreling challenging to fight or lighting is punishable b by fine not exceeds exceeding ng two hundred d dof lars tars or by imprisonment iu in the city jail nt not exceeding exceed int two months section 7 provides ifancy if any person shall disturb the peace or quiet of an any v ther person or person persons family lawful assembly aso asb embly or neighborhood with in the odthe city by inai ug any faife false alarm of tire by loud louder or unusual nui noides vets by indecent abusive or obscene language Lin guage or conduct by threatening quarreling linz ringing of belle bells blowing of horna horns or other inspru heuts or by any other means or de do vice w whatever hat ever such person shall be liable to pay a fine tine not exceeding one I 1 hundred dollars or to be imprisoned not exceed iriv ninety days or both at the discretion of the tie court for each offen tso now sup suppose posen a conviction was obtained under this complaint there are two to sections neither of which I 1 is 1 pointed out in the complain both 0 of f which prescribe pre geribo a penalty and each pro si bribing a dit lerent penalty I 1 do not wit know how the court could voula determine anim reading the rom complaint plaint under which section it camu came so as to pass oen tence upon the defendant I 1 think that tho the complaint itself Is tan lan nite to t be sustained in addition to that it U appears frum from 3 if it is under that section that every person who will within in the limits limns of the city ahll maliciously and wilful wilfully y d disturb tat u rb t tte te beavo pi arh and quiet etc ahe 1 he complaint alleges til leee eliat atie dt dut 41 wilfully disturb the peace and quiet if of the neighborhood so it would seem that if it was the intention of the pleat ler to lay the tile complaint under tinder section 3 but section 3 provides that lift must also disturb the tile deac P and quiet of the neighborhood maliciously A man might disturb the pew eind the neigh horwood wilfully and have a perfect right to do some one have him some one might have 0 him he lie might be called upon for thy the protection of or his gereon to in belf self defense and thus wil fulla disturb the peace and quiet nf of the th no ah arh i oil I 1 lie I 1 e dinst in wa C linau sly and wilfully disturb he ilia peace and quiet it will therefore be he seen that the botu complaint plaint ie is open to a second criticism I 1 think to determine chii care ther there Is another point that haa has been called timy t ti imy my attention that I 1 mil will batig upon which N it this I 1 find nowhere in the charter of oden ogden city authority t to katsan ordinance ordin anco of J th bof of the one ie in quer liun iun there la id no express arthurl au thuri ty given but IL 11 Is bald said that the authority aut ant durity t arnises under tinder what is termed be general welfare clause I 1 have called attention to the ordinance and 1 now call attention to 2063 of the coro compiled plied laws of 1870 which provides every person who maliciously and wilfully disturbs the peace or quiet of any neighborhood family or person by loud or unusual noi acor by tumultuous or offensive conduct c or ir by threatening traducing quarreling I 1 ng challenging to fight or ia is punishable bable by fine not exi exceeding beding two hundred dollar dollars or orby by imprisonment M ent IQ in the county jail not exceeding two wo months it it will be seen that that section ia la identical w with ith section 3 of chapter 10 LU 0 of the ordinances of the city of ogden it will be seen that the legis s lature has seen fit to legislate wil h reference efe rence to that particular offense and to make it an offen of fenee se they have not seen fit to g give ive to the city of ogden power to leia lem elate ate with reference too to that na natu I 1 take lake it that thie case is settled by the rase case of the people vs moroni brown and robert eit found round in the 2nd of utah on here the supreme court of the territory of utah says the principal point ia is as to the validity of the Ordin ordinance anre under which said kienel was arrested he ile was arrested tried and punished for violating an ordinance of ogden city against assaults and batteries which ordinances are found in c chapter pter 10 that ia Is the same cha chap ap ter that weare we are now considering and the supreme court says say sayono sNo no authority ie Is given in the charter of ogden city to pasa pass uch such an ord urd ordnance nance but it is urged that it ia Is implied to exist under the general welfare clause to lo regulate the police Olice 11 an implied p power r ie aluch as F is necessary in order to carry into effect those expressly granted and where per person lionil rights and liberty are involved the charter powers of every municipal corporation are to b be strictly construed the power to punish for an act of the character referred to does cot tot beom to be becer epeary sary in order to carry into deflect the general welfare dance and under a fur wr construction such power does not therefore exist and cannot exist except by express words to that effect indeed if under simply a general welfare clause a city can pass ordinances against assaults and bat teries it is difficult to conceive to what extent a city government might not go under such a clause wo we deem the ordinance unauthorized and void this point being decisive of the case it is not necea necessary sary to refer to any other points raised 11 the opinion was delivered by justice boreman concurred in by chief justice and justice emerson As I 1 have stated I 1 think this decision is decisive of the case in in question and that I 1 must hold that the ordinance is unauthorized and void that being the case my conclusion are first that the complaint ia 13 altogether too indefinite Inde finito and charges no offense second that the ordinance under which this corn complaint plaint Is 13 brought Is unauthorized and void that therefore the demurrer fiust be sustained and the case dismissed the prisoner discharged and his bonds exonerated captain smith I 1 ask for judgment for costs against the city the court judgment may be entered against the city for coats costs |