Omaha daily bee., 1891-05-27
NEWS FROM COUNCIL BLUFFS.
Something Of q Setback Given the City
Authorities by the Court
tNloNED FROM TAKING SALOON FINES
Disordcriy House Ordinance Illegal.
and Counivance at Saloon Keep
ing an Overt Act on the Part
of the Authorities.

Il 81 4 his is one OF the Injunction SUITS tnal
uas commenced several months ago TO enioln
the keeping Of saloon by Rink & Schultz,
and the collecting Of wnat is known as the
monthly fne,r which has been levied by
the city against all saloon nkeepers ever since
the passage OF The prohibitory law. There
have been injunction suits bv the dozen
brought In years past, and the novelty OF
such proceedings has worn completely of.
1t the present suit, however, as in all that
were brought by Turner, there is one point
which has never yet been decided In any
similar case, and that is the guest whether
city officials are subject to al injunction re-
straining them from collecting the monthly
hue. This new feature has caused an inter
est in the case which surpasses that felt by
the public in almost any case that has been
tried in the district court in the past twenty
years.
Judge Thornell rendered the decision
After making some general statements as TO
the facts that have been brought to his ludic-
ial knowledge during the trial Of tue case, ne
says as follows;
A 10 defendant Cary. the evidence fail, to
show he had anything t. do with the ul tiers
relied upon to charge the defendau officers.
The application for an Injunction against him
i refused.
The evidence shows that some months prior
to the commencement ut this action the
mayor Informed the marshal ana clerk That
house should be fixed at $50, that generally
the amount collected was S52lN The evil
dence shows that saloons were cias-ed as dis
orderly houses; that the deputy marshal no
tined pruprletOr> every thirty days to come
and pay this tue. Those notified waived ar
rest. paid the fine to the clerk and continued
business. The deputy who notified the par
ties received instructions from the marshal
He saws he notified Rink * schultz eight or
fV.lH d fR.s.s hoo
paid.
The evidence OF the mayor marshal ana
clerk shows il was "a monthly fine aud the
Keepers were notified monthly. The rc"e pts
for payments are IN evidence. They Hcknovl-
edged receipt Of So. 10 forfeiture for January.
and the clerk said this was the form used.
This action is brought under section lj43,
Iowa code. That section after providing that
any building or erection in which any kind Of
Intoxicating liquors are manufactured for
sale. or sold, or kept for sale in violation Of
law, is nuisance. and the keeper shall be
deemed guilty OF "a nuisance.
Ii this state every person who voluntarily
assists in or encoura- e. the commits ssion Of
any otensc ! guilty n 4 principal aud inlme-
Section 1851 Of code provides All peace Off
GERS shall see that the provisions OF this chap
ter are faithfully executed" and IL directs
how such officers shaI proceed Sherif. con-
stable. and narshals ana policemen OF incor-
porated towns are peace officers. The mayor
OF cities like Council Bluffs appoints the po-
lice and he j. the head OF the force.
The question arises whether the defendant
officers. DN iTnpO- NJ ana collect lu- the nne in
question. assist i'm or encourage the continu-
ance OF the nuisance. are thereby subject 10
be enjoined.
Now. neither kuovle ige that crime is being
committed nor mental assent in its commits
siou will alone make one party to the offense
unless he does some act TO assist in or en-
courage the otense or unless interference
upon his part IS duty and his nom
interference is designed by him and operates
as an encouragement to or protection OF the
offender But where he has undertaken TO
perform the duties of an Office or station and
the duties so assumed impose upon him the
Affirmative 10 interfere and he refrains de-
signediy and thereby encourages the contin-
usnce of the ofense. or IL he commands or
ad vises, or assists others In doing acts which
must necessarily encourage or incite to its
commission, he becomes liable. The
fine in question was monthly. IL was so i'm
posed a. TO be receipted for. No one contem-
plated when the saloonkeeper was notified
and pad that he would go out of the unla W.
ful business. II was for that month only. 1t
was not imposed As punishment for past
ofenses, and TO deter the offender from
future violations. II contemplated fu;;
conditions beforehand by which the
same might continue. II is true the evidence
fails to show any such agreement. but Office r.
aud saloonists knew the fine could not be col
lected by law; that payment of IL would not
legally bar the officer from arresting and pun
ishing the offender. The manner in which it
was imposed suggested monthly repetition
OF the ofense. The evidence does not show
any effort to suppress the business. The reg
uIarity OF the tine indicated an understand
ing that il should continue
The fine, In fact. was license. which i'm
piled agreement and obligation on the part of
officers that II paid. the business wou not
be suppressed; au obligation of non-nterfer-
ence In direct violation Of their duty The per-
sons imposing the tine officers of the law
for the suppress ion OF unlawful business. The
marshals and police are peace officers ana the
clothed with authority. A direction from him
would close every drinking place i'm the city.
should be done. But he levies license
monthly and the marshal and clerk collects IL.
In the place Of law he interposes a regulat on
Of his own. II is without sanction and cannot
be enforced. but IL is obeyed, for the author
ity commanding IL can aunihilate the busi-
ness and this regulation implies some sort Of
right 10 continue and payment of the license
or fine is In consideration of the right Who
Will say the mayor and appointees and mar
ness bound to respect the obliga-
tion they have imposedS They could not
justly collect the fine and then suppress the
business OF Inc man VINO pays: weighiy as
surance To the offender that IL he obeys the
regulation his business will not be suppressed,
impart ing 10 him sense of security and en-
couraging his offense. IL be could enter such
an agreement with every peace officer lac
| could be assured freedom from punishment /
In my judgment. when the mayor inn
posed and the marshal and clerk collected the
bne in question all OF the parties to the trans
action understood IL The fine was paid the
business OF the person paying would not be
suppressed: that this understanding with the
officers OF the law. charged with the atfirma-
tive duty OF enforcing IL, encouraging it, viola
tion md the continuance of the nuisance
The city clerk by virtue of his office is clerk
OF the superior and police courts. Ills dutie:
In those courts are the same the clerk OF
the district court; that 80 long as the colec-
tion of the fine In question was under the
semblance Of legal forms he was the only one
who could receive and receipt for il. He wa
necessary party to the transaction, anc
when he received and recelpted for II from
month To mouth he must have understood the
nature OF the transaction, ana for the reason
above stated a temporary writ Of injunctlot
will issue, rest aiming the defendants, bona Il
Macrae, mayor, John l.. TEN pletOn. marsh al
and A. J. Stephenson. city clerk, as prayed IL
| the petition.
what will you do now,m as asked Of ont
| Of the attorneys for the defendents in tht
case.
In the first place, we will appeal 10 III,
supreme court, was the reply. And in th'
meanune, we viii 90 right on and collect tht
fine as we always have done There is n
Judge on this footstool that can euloin IN,
city officials from fling an information aCains
a suspected criminal, arrcsting him, and,
found guilty, having him punished. That i
W hat we will do
Buckeyes, Attention.
All native born citizens Of the Buckley,
state residing in Council Bluffs are requested
TO meet Wednesday, May -, in the pariors
-. -. n q. !