Press and daily Dakotaian. (Yankton, Dakota Territory [S.D.]) 1880-1889, 1885-12-14

by both such fine and Imprisonment.
Again, l call the attention of the coun-
Gil to the penal code entitled "Of MALI
cious Mischief"
Section SOL of the penal code. sEvery
'person who maliciously INJURIES, defaces,
'or destroys any real or personal property
mot his W in cases other than such as
'are specified in the following sections.
SIS guilty of a misdemeanor, and in adj
'dition to the punishment prescribed
therefor, he is liable to trebel damages
for the injury done, to be recovered in a
civil action by the owner of such prop
'erty, or public officer having charge
thereof"
1t is not the Office and duty of the
mayor and council to enlarge upon the
penal or criminal statutes of the terri |
tory. As well might the mayor and
council enact and ordaIn upon the sub. |
lects of larceny, adultery and kindred
subjects.
/ have not therefore prepared the ordl-
nance desired by the council, because /
deem it outside of the powers of the
mayor and council to enact such an ordi-
nance, and then, too, the penal statutes |
OF the territory are ample to furnish o
remedy for every public or private injury
caused by the use of both a sling. shot
or q slung-shot. Each individual can
complain to any one of the justices of
the peace of the county, of any viola
latjon of the law, and the city is thereby
freed of all costs and expenses in the
matter. All of which is respectfully
submitted. WILLIAM p. DEWEY,
City Attorney.
Office of City Attorney, Yankton, De-
na1,har Tth lSQk-nA Sha Nfa~Dr onl
Council:
AT q session of the city council Of date
November 10Th ultimo, it was voted, "on
motion of Alderman Dudley, that the
city attorney be instructed to draw an
ordinance making it a punishable Of
fence for minors TO frequent saloons or
adjoining rooms kept IN connection with
saloons; also an ordinance making it q
punishable offense for owners of saloons
to permit minors to frequent their sa.
looms or rooms kept in connection
| thereto"
In compliance with the foregoing III
| structions from the council, l beg to state,
that after u careful and thorough exam
nation of the powers conferred upon
the mayor and council by the city char
{ ter, [ am unable to find any enumerated
or stated power and authority i'll the
mayor and council to enact and ordain
any restrictions upon minors or adult
persons, so far as they may choose to
visit and frequent saloons.
The charter confers upon the mayor
and council the exclusive power and au-
thority to license the sale of intoxieat-
ing liquors and drinks and they may re-
fuse a Incense to any applicant guilty OF
harboring or entertaining minors. This
power is absolute with the mayor and
council, and they may grant licenses or
withhold the same in their discretion,
and may provide for revoking o license
granted to any person who allows minors
to frequent his saloon or other place,
When granted by the mayor and coun
Gil, the party obtaining u license is I'M
Restrained IN the sale of Intoxicating
liquors and drinks, except to Indians
minors, habitnal drunkards and paupers
Section 726 of the penal code is in these
words: Every person found guilty o.
selling Intoxicating liquors by agent OF
otherwise, to minors, unless
upon the written order O
} their parents, guardians. or family
: physicians, or to persons intoxicated, o,
who are in the habit of getting intoxicat
ed, is punishable by o fine not exceed
iIuE III II NV oilu ubS
g not less thar twenty dollars for eacl
offense.' Farther than this, in restrain
1 of minors eqGenting and visiting sa
looms and places where Intoxicating
! liquors are licensed to be sold, the leg
~islative assembly has not enacted, ant
the power to enact and ordain upon thu
Subject has not beer expressly delegat
ed to the mayor and council of the city
of Yankton by the charter now in force
u and this express power never having
been conferred, as / have before stated
h it is questionable whether an ordinance
containing the provisions contemplate
by the vote of the council, would
6 be q valid enactment and coul'
be enforced 10 the courts
e There is q mistaken opinion with man,
e Intelligent persons, that municipal col
y porations, under their charters granite
o by the legislative assembly, have pier
d airy powers to enact and ordaln upo
e any subject and matter that the publ
necessity may require.
d The charter of a city is synonymous t
e the constitution of u state, or the oil
e ganic act of this territory. 1t confer
re and it restricts. The present charter
the city is substantially the same cha
ter under which the city was first inco
porated, the powers then conferred w
on the mayor and council having bee
4 enlarged only in o few particulars,
- experience and the public necessity ha,
demanded. Your experience now
simply a recital of the experience c
d other cities and city authorities VIII
have found by their experience TIN
public necessity required the epactmel
10 ofcertaln restrictive or progressive Q
q dinances, and when measured by u
charter, the power TO enact and orda
IN the particular matter was wantin
and additional powers had to be obtaint
"a from legislative authority. To punish
es minor for entering a saloon. or to pu
ish q saloon, keeper or other License
person for allowing a minor to enter
4. saloon or other place of business, won
2. be an extraordinary use OF authority,a al
re never has been asserted to my know
edge. +.
In conclusion, L beg to state to Il
II, council that L have not prepared sul
nd an ordinance as the council requires, b
he cause | am of the opinion that such
ed ordinance would over reach the powe
he of the mayor and council. 1t is q fa'
to that the legislative assembly of Dako
an having full power In the premises, ha
1870 not gone as far in the matter as t
es- council seeks to go, and such power L
ch having been delegated to the mayor a
Gil council by the charter, [ cannot adv
di- the council that such an ordinan
am would be constitutional under the pr
ch ent charter. In q recent case, beft
nd Judge Edgerton, that of the city
Yankton against DeCamp, the col