Salt Lake evening Democrat. [volume] (Salt Lake City, Utah) 1885-1887, 1885-11-28
JUDGE ZANE DECIDES.
And In Logical Decision "knocks
OUT the Lewd and Lascivlous
Ordinance.
What the Territory win Not Legis.
late Against the City Has No
Power to Punish.
The "Morai" Crusade OF the Police
and Their Prostitutes Receives
Its 0uietus.

Authorities OF different cases in different
States were cited TO maintain the posi-
tons taken by the lawyers, in which pri
vate and public lewdness was spoken of
at considerable length.
Mr.. Rawlns said that yesterday in
casual way he referred to the time
WHEN THE cry PUNISHED FOR MURDER
And other grave crimes, and that per-
haps he should, out of justice to the pres
ent city authorities, have been more ex-
picit. 1t has been said that the state
ment was "metaphorical le." He
wished to state that it was not "meta-
phorical lie," and If any person who may
be curious about the matter will go to
the City Recorder they will find u
book containing the ordinance. 1t is
there, and he knew it.; it is doubtlessly
the city. He would not say that it was
not the best thing TO do under the cir
cumstances, rather than to have vigilance
committees. He hoped that this explana-
ton would satisfy "a wondering public"
Taking the warrant and other docu-
ments pinned together in hand, the Court
then gave
THE FOLLOWING DECIsIoN
This is a warrant for lewd and lascivi-
GUS conduct issued to VIM. Phillips upon
the petitioner, Oscar Vandercook. 1t is
alleged that the petitioner is unlawfully
deprived of his liberty by the respondent
The petition and writ required the Marshal
to show by what authority he iolds the
petitioner in custody In the Marshal's
bn Oh In, he, 1,n
holds him by virtue OF warrant, which
is attached to the return. The warrant
states the authority to be an offense
against section 81 of the city ordinance
on page 265. The offense is described
to be: That one Oscar Fandercook
was unlawfully guilty of lewd and lasciv
ious conduct with one Mrs. Field. The
date of the alleged offense and other par
ticulars were here stated.
THIS RETURN BRINGS UP TWO QUESTIONS.
First-Whether in the warrant an Of
Tense is shown to have been committed
against the ordinance?
Seconds the ordinance valid accord
ing TO the charter OF the city?
In the question as to the power OF the
city to pass the ordinance, the general rule
of law is that under Territorial and State
constitutions, cities and villages are dele
gated powers, and that they have no
powers other than those that are given
them, Or are expressed. One authority
says that cities have only such powers as
are necessary for the management of its
affairs; another authority says that cities
have only such powers as are necessary
to enforce 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 or
dinances by implication. | find
No WARRANT FOR THE SECTION IN QUESTION,
With the exception of the clause relating
to prostitution. Power to restrain prosti-
tuition means the power to punish pros
titution, because the power to punish
restraints prostitution. Section seven re-
ferred to has been claimed to come under
the general welfare" clause, and is found
to differ somewhat rs to the general
terms. General welfare" is here under
stood to give power to pass ordinances
that the general welfare demands. 1t is
the broadcast term that can be used. This
power to enact ordinances is such rs only
pertains to the general welfare. | sup
pose that the broadcast term used in this
section is happiness" | doubt whether
under such an expression the city can
punish for adultery or forIication. They
are crimes well defined The general
rule is laid down that the city has no
power to define crime already defined
by the State laws. The Legislature has
expressed its intention that the munici-
pality shall not be deprived of the power
to punish crimes when this power is del
egated to the city through its charter.
When the Legislature does not so pro-
vide
THE CITY HAS No POWER TO PUNISH
Under the general welfare clause, the city
cannot punish for adultery and fornica-
ton when TIE Legislature provides for
these ofienses.
The question is then, whether the city
has authority for this ordinance. Section
30 relates to swimming in rivers and other
waters adjoining the city, and to regulate
the time and places for bathing. ii does
not prevent person from bathing in the
house. The other part of the section re-
iers to indecent exhibition, and implies
thai out of sight of the public eye is no
exposure at all. The general express
sions OF the section must be considered
together. 1t must be understood to pre-
vent indecent conduct before another, 80
aS W oHenu tne pubic.
OBSCENE CONDUCT AND INDECENT CONDUCT
Have different meaning. They are
defined by common law, and it is TO be
presumed that the Legislature had this
difference in view, rs it is found in the
common law. Therefore, it is reasonable
to suppose that the Legislature author
lied the punishment of Indecent conduct
as understood by the common law. A
private act is not defined by the common
law as crime. When both parties 90
together out OF the sight of EVERYONE.
under the Connecticut law it is not an
ottense. So that this section 80, accord
ing to the ordinance and its own interpre-
tation, means indecent conduct. That
is open and not private, and the pre-
sumption is that the City Council used
the statute as it has been held-that the
ofiense must be open or public.
am disposed to construe this ordi-
nance, in the light OF the statute,
TO MEAN OPEN CONDUCT.
Lewd and lasciyious conduct has TEN
dency to arouse amorous passions in the
minds OF those who are witnesses of 1t
but If committed in the house alone has a
different effect. The Legislature has the
power to authorize the city to prevent
adultery and fornieation. Yet in the
charter oil this city they are not found.
which appears TO be an intentional omis-
sion. Where in the charter prostitution
Is mentioned it gives power to punish
that ofTense.
The Territory has at one time defined
series OF crimes and imposed heavy
penalties, but
l.