City of Eureka v. Diaz

Patebsok, J. — The mayor and common council of the city of Eureka passed an ordinance which provided that it should be unlawful for any person to carry on within the limits of the city any saloon, bar-room, or dram-shop without having first obtained a license therefor, and having given a good and sufficient bond in the sum of one thousand dollars, with two sureties approved by a majority of the members of the common council, conditioned that such saloon during the term of the license should be conducted in a lawful, quiet, and orderly manner. The ordinance provided that it should be unlawful to keep such place open, or to sell or give away any intoxicating drinks therein “ between the hours of eleven o’clock, p. m., and five o’clock, a. m., of each and every day.” The complaint herein charges that the defendant Diaz, contrary to the provisions of the ordinance, on the sixteenth day of March kept his place of business open from eleven, p. m., until five, a. m., of the following day, and sold spirituous and fermented liquors, beer and wine. The defendants Iluk and Lundblade were sureties in the bond given by Diaz.

Plaintiff bad judgment for the sum of one thousand dollars, defendants moved for a new trial, the motion was denied, and an appeal was taken from the order and from the judgment.

The demurrer to the complaint should have been sustained. The provision of the ordinance upon which the plaintiff relies is not ambiguous or uncertain. It [469]may be that it does not express what the mayor and common council intended to express, but the court cannot make or amend ordinances. It is a cardinal rule in the construction of statutes that the intent of the legislator should be followed, but this is subject to the imperative and paramount rule that the court cannot depart from the meaning of language which is free from ambiguity, although the consequence would be to defeat the object of the act. In Rex v. Barham, 8 Barn. & C. 99, the court said: “ Our decision may, in this particular case, operate to defeat the object of the act; but it is better to abide by this consequence than to put upon it a construction not warranted by the words of the act, in order to give effect to what we may suppose to have been the intention of the legislature.” In Smith v. State, 66 Md. 217, the court said: “ Even when a court is convinced, that the legislature really meant and intended something not expressed by the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of language which is free from ambiguity. As was said by Lord Denman in Green v. Wood, 7 Ad. & E., N. S., 185. ‘ Those who used the -words thought they had effected the purpose intended. But we, looking at the words as judges, are no more justified in introducing that meaning than we should he if we added any other provision. We can do no more than give such a meaning as the words authorize/ The supreme court of Ohio in Woodbury v. Barry, 18 Ohio, 462, emphatically say: It is our legitimate function to interpret legislation, but not to supply its omissions/”