Scipio, a Municipal Corp. v. Grantly Olsen

265 P. 1117, 71 Utah 328, 1928 Utah LEXIS 60

• Court: Utah Supreme Court
• Decided: March 7, 1928
• Docket: No. 4608.
• Status: Published

Opinion

PER CURIAM.

Defendant was prosecuted under a municipal ordinance of the town of Scipio. The town is located in Millard county, this state. Conviction was had before a justice of the peace. Defendant appealed to the district court. In that last-named court he demurred to the complaint on the grounds that it failed to state facts sufficient to constitute a public offense; that Scipio was without power to enact the ordinance under which the prosecution was had; that the ordinance is unconstitutional in that it violates the rights and privileges of a citizen guaranteed by the state and federal Constitutions. The district court reserved its ruling upon the demurrer until the municipality had presented its testimony Thereupon the court sustained the demurrer and dismissed the defendant from custody. The town of Scipio appeals. The right of appeal is claimed by reason of the fact that the validity or constitutionality of an ordinance is involved. The court, in a written memorandum reflecting its views, was of the opinion that the ordinance was an unwarranted interference with individual rights, and hence was both oppressive and arbitrary, and, as stated in the judgment, unconstitutional. The right of appeal and the jurisdiction of this court to consider an appeal in cases such as here presented was determined adversely to. such right in Castle Dale City v. Woolley, District Judge, 61 Utah 291, 212 P. 1111. It would serve no good purpose to restate the reasons that controlled the court in that case. It is sufficient to say that the record here brings this case within the rule there stated. See, also, Salina City v. Freece, 61 Utah 574, 216 P. 1079, and Town of Ophir v. Jorgensen, 63 Utah 288, 255 P. 342.

The appeal must be, and accordingly is, dismissed at appellant’s cost.