Salt Lake evening Democrat. [volume] (Salt Lake City, Utah) 1885-1887, 1885-11-28
JUDGE ZANE DECIDES.
And i'm a Logical Decision "KnOcks
Out'' the Lewd and LasciviOus
Ordinance.
What the Territory Will Not Legis-
late Against the City Has No
Power to Punish.
The "MOral' Crusade of the Police
and Their Prostitutes Receives
Its Quietus.

=
ing considerable time was taken up
discussing the general welfare" claus
Authorities of different cases in differel
States were cited to maintain the pos
tons taken by the lawyers, in which pi
vate and public lewdness was spoken
at considerable length.
Mr.. Rawlins said that yesterday in
casual way he referred to the time
| WHEN THE CITY PUNISHED FOR MURDE
And other grave crimes, and that pc
haps he should, out of justice to the pres
ent city authorities, have been more ez
plicit. 1t has been said that the state
ment was a 'metaphorical lie." HI
wished to state that it was not a "meta
phorical lie" and if any person who ma
be curious about the matter will 90 t
the City Recorder they will find
book containing the ordinance 1t i
there, and he knew it; it is doubtlessl,
known to many of the old inhabitants O
the city. He would not say that it wa
not the best thing to do under the cir
cumstances, rather than to have vigilanc,
committees. He hoped that this explana
ton would satisfy "a wondering public ,
Taking the warrant and other docu
ments pinned together in hand, the Cour
then gave
THE FOLLOWING DECISION:
This is warrant for lewd and lascivi
Gus conduct issued to VIM. Phillips upor
the petitioner, Oscar Vandercook. It is
alleged that the petitioner is unlawfully
deprived of his liberty by the respondent
The petition and writ required the Marsha
to show by what authority he holds the
petitioner in custody. In the Marshal's
return he states in substance that he
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 ofense is described
to be: That one Oscar Vandercook
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 topass 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
by Implication I find
no WARRANT FOR THE SECTION IN QUESTION,
With the exception OF the clause relating
70 prostitution. Power to restrain prosti-
luton means the power to punish pros
tuition, because the power to punish
prostitution. Section seven re-
erred to has been claimed to come under
he general welfare" clause, and is found
o differ somewhat as to the general
erms. General welfare" is here under
food to give power to pass ordinances
hat the general welfare demands. Tt is
he broadcast term that can be used. This
power to enact ordinances is such as only |
pertains to the general welfare I sup |
'ose that the broadcast term used in this
ection is Happiness" doubt whether
lnder such an expression the city can
'unlsh for adultery or fornication. They
re crimes well defined. The general
ule is laid down that the city has no
over to define a crime already defined
y the State laws. The Legislature has
expressed its intention that the munich
atty shall not be deprived of the power
punish crimes when this power is del
gated to the city through its charter.
When the Legislature does not So pro-
ide f'-N
THE CITY HAS NO POWER TO PUNISH.
nder the general welfare clause, the CITY
innot punish for adultery and fornica-
on when the Legislature provides for
lese offenses.
The question is then, whether the civ
rs authority for this ordinance. Section
relates to swimming in rivers and other
alters adjoining the city, and to regulate
e time and places for bathing. It does
't prevent person from bathing in the
,use. The other part of the section re-
RS to indecent exhibition, and implies
at out of sight of the public eve is no
,posure at all. The general express
'ns OF the section must be considered ;
gether. 1t must be understood to pre- !
mt indecent conduct before another, so !
to offend the public.
SCENE CONDUCT AND INDECENT CONDUCT )
ave different meaning. They are
lined by common law, and it is to be
esumed that the Legislature had this t
ference in view, as it is found in tho r
mmon law. Therefore. it is reasonable q
suppose that the Legislature author f
q the punishment of indecent conduct II
understood by the common law. A e
waite act is not defined by the common #
as crime. When both parties 60 T
,ether out of the sight of EVERYONE. 3
der the Connecticut law it is not an b
ense. So that this section SO, accord \
TO the ordinance and its own interpre- a
ION, means indecent conduct. That
open and not private, and the pre-
nption is that the City Council used S
statute as it has been held-that the IL
ense must be open or public. Il
am disposed to construe this ordi- al
nee, in the light of the statute,
TO MEAN OPEN CONDUCT.
wd and lascivious conduct has ten
ICY to arouse amorous passions in the &C
nds OF those who are witnesses of it. ST
II committed in the house alone has m
erent effect. The Legislature has the al
yer to authorize the city to prevent
lltery and fornication. Yet in the
!rter OF this city they are not found.
lch appears to be an Intentional omis.
4. Where in the charter prostitution oh
mentioned it gives power to punish ci,
t offense. E,
'h<a t'nSr L.