Ottumwa tri-weekly courier. [volume] (Ottumwa, Iowa) 1903-1916, 1912-05-07
men FREED OF
BOOZE CHARGE
JUDGE HENDERsHoTT DECLARED
SECTION OF DlsoRDERLv
HOUSE LAW IS INVALID.
MAY APPEAL CASE
City Solicitor viii Take Matter up
With Council Monday Nisht--Puts
End to City Getting Money From
BootIegoina Cases.

Police Judge Lie. Hendershott in an
opinion renderedfa at l 80 this afternoon
freed J. Gallagher and D. Puhroy OF
the charges Of running disorderly
house and ordered the case Of beer
seized by the police. returned to the
men. BY his decision Judge Hender-
shott declared the section Of the dis
orderly house ordinance dealing with
the sale Of Intoxicating liquors con-
trary to law, illegal and invalid for the
reason that it conflicts with the state
law. Judge Hendershott's decision
further showed that all bootlegging
cases brought under the disorderly
house ordinance were illegal and that
men that have been fined under such
a information excepting disorderly
house where intoxicating liquors were
kept for sale and sold) have been pun
ished illegally. Judge Hendefshott by
his decision has also taken away the
right Of the city to secure any more
bootlegging fines under the disorderly
house ordinance. 49,.
City Solicitor Tisdale will take the
case before the council to see whether
or not he shall appeal to the district
court.
The case was argued before Jud r..
Hendershott Thursday afternoon.
defense argued that the state law fixes
the penalty for illegal sales Of liquor
and therefore that section Of the ordl-
nance which related to illegal sales
was invalid, since it confiicted with
the state law. The city maintained
the ordinance was not attempting to
regulate the punishment for selling
liquors but was aimed at the house IN
which such violation of the law Is
carried on. The judge declared the
ordinance conflicted with the state
law. ..
Chief OF Police Fielder stated that
it Is possible he will file state charge
against the two men. Judge Hender-
shott's complete opinion in the case
follows: 49, t~- . ...
Opinion Of Court. -~
This Is an action commenced IN the
police court charging the defendants
with the crime Of maintaining disor-
derby house and charges the defendants
| with keeping place at No. 604 East
Main street, Ottumwa, Iowa. wherein
liquors were kept for sale In violation
| OF law VI
ITO which information defendants
filed demurrer attacking the Jurisdic-
ton Of the police Judge and that part
Of the ordinance, section $50, Revised
Ordinances Of 1904. insofar as it refers
to the sale Of intoxicating liquors.
80 far as know this Identical ques-
ton has never been raised in any court
in the state of Iowa. It presents novel
question. There can be no question but
that Ottumwa is at this time governed
by the prohibitory and not under the
mulct law, and the city, by ordinance
attempting to regulate the sale Of in
toxicating liquor, fix penalties. assess
fines, must be granted that power by
expressed statutes.
II find no such grant in our statute
books. -s .s
1T is claimed by counsel for the city
that the council had the right to pass
you this Is true, but I fail to find any
law covering this case which is an
attempt by the city to punish those
who sell liquor in violation of law.
1.-The very wording of the ordinance
and the charging part Of the informa-
ton must dispel any other idea; but
for the charge that defendants kept for
sale intoxicating liquor In violation OF
law no crime would be charged, and
the case must fail. As to the keeping
for sale or selling Of intoxicating liquor,
the statutes Of the state make ample
provisions and regulations and flxes
penalties and are ample to punish per-
sons for violation Of the liquor laws
now in operation. #.- ~
by statute the penalty for illegal
ales of liquor is fixed at from $500 to
81. 900, and by the ordinance from $50
to $780, This Is direct conflict be-
tho ~ az 10 TO 01Vu
and would be an attempt by the city to
take Jurisdiction Of the criminal Of
lenses and by SO doing impair the ad-
ministration of criminal Justice. This
being the case the demurrer must be
sustained and the case dismissed. The
defendants are discharged and their
bond exonerated.
IL. c. Hendershott,
49, Police Judge"