"(4) The prior relations and association of the prosecutrix and the defendant may be considered by you, for the purpose of determining whether the defendant would be likely to commit the crime charged at the time and place and in any manner as testified to by the prosecutrix." ing salesman was showing her in the front tion of a felony, is not to be considered by room, when, hearing a noise at the back door, you as evidence tending to connect the deshe went into the kitchen, was there met by fendant with the commission of the offense the defendant, who had gained admittance in- | charged in this indictment, nor for the purto the house by cutting the wire netting from pose of establishing his guilt, but only for a screen door, and was then and there as- the purpose of testing his credibility as a saulted by the defendant, choked and thrown | witness. upon the bed, and there defiled by him. She also claims that defendant held in his hand an open knife, and that he threatened to kill her if she did not lie still and submit to his embraces. Her story is to some extent corroborated by the fact that she had some bruises upon her face, and that she almost immediately made complaint to an officer, Nothing was given by the trial court with who had been called to the scene by prosecu- reference to the subject-matter of the first trix's sister, although the nature of the com- of these instructions, and as it announced a plaint that is, as to whether or not it was correct rule of law it should have been given. of a simple assault, of an assault to do great | Code, § 4613. bodily injury, or of an attempted rape-is not clear from the testimony. On the other hand, there is a great deal of testimony contradictory of that adduced by the state, and considerable conflict in the testimony offered by the state. The jury was perfectly justified in returning a verdict of not guilty of rape; but there was enough testimony, if believed by the jury, to warrant the verdict returned. Many complaints are made of rulings made by the trial court in admitting and rejecting testimony. Most of these are without merit, however, and, in view of the final conclusion reached, it will not be necessary to notice many of these rulings. [4] More serious error is found in the court's refusal to give the second instruction above quoted. The error was intensified by the following paragraph from the charge as given: "(13) Evidence was also permitted to be introduced tending to show that improper sexual relations were had between the defendant and the prosecuting witness prior to the time of the offense as alleged in the indictment. This evidence was allowed to be introduced for the purpose of affecting the credibility of the prosecutrix, but you are instructed that if you find from the evidence such fact to be it does not constitute a defense to the crime charged in the indictment, but is to be considered by you as affecting the credibility of the witness in question as to matters testified to by her." There was ample testimony tending to show, not only that prosecutrix was a prostitute, but that she also, previous to the time of the alleged rape, had had voluntary sexual intercourse with the defendant, and had lived with him as his mistress. There was also some testimony to the effect that on the day of the alleged assault the parties had had sexual intercourse with each other. That prosecutrix was a common prostitute surely should be considered as bearing upon her credibility as a witness, although perhaps her previous intercourse with defendant alone may not have such bearing, unless so long continued as to give her a bad moral character. But it is also true that prosecutrix's general reputation for chastity, as well as her previous vol [1] We are disposed to think the trial court was in error in denying to defendant the right to show that the complaint, made by the prosecutrix and by her sister, who says she saw the defendant in the act of sexual intercourse with prosecutrix, was of an assault with intent to murder, and not of an assault with intent to rape, or of rape itself. We are speaking now of an information filed by either the prosecuting witness or her sister. Surely this testimony would tend to show that the offense which these witnesses then believed to have been committed was not rape, or an assault with intent to commit rape, but either a simple assault, or an assault with intent to do bodily harm, or to kill. In this connection, the trial court made the following remark, which indicates what we are constrained to hold an erroneous view of the law: "I think it is wholly immaterial what this witness may have ad-untary sexual relations with the defendant, vised her sister or any one else to do in this case." [2] Again, defendant endeavored to show that Mary Manning, prosecutrix's sister, was angry with defendant because of his relations with prosecutrix, and had a motive in testifying against him. This testimony was rejected by the trial court, and as we think improperly. [3] 2. The most serious complaints, however, are of the court's refusal to give the following instructions asked by defendant: may and should have been considered as substantive proof of the fact that whatever the act done it was with the consent of the prosecutrix. Of course, a common prostitute may be raped, and one may rape a woman, although she be his mistress; but it is not so likely that his act is by force and against her will. State v. Cook, 65 Iowa, 560, 22 N. W. 675; Bedgood v. State, 115 Ind. 275, 17 N. E. 621. Cowen, J., wrote a very learned and exhaustive opinion upon this subject, which is found in 19 Wend. (N. Y.) 192, under the is made. See, also, McQuirk v. State, 84 Ala. [ fendants' demurrer to their petition and en435, 4 South. 775, 5 Am. St. Rep. 381; State tering judgment against them for costs. v. Freeman, 100 N. C. 429, 5 S. E. 921. The text-books without exception hold to this rule. See McClain's Crim. Law, § 460; 10 Ency. of Evidence, p. 602, and cases cited; 4 Elliott on Evidence, § 3101, and cases cited. Stated as briefly as possible, plaintiffs allege that they are severally proprietors of theaters doing business in Cedar Rapids, and that the defendants are, respectively, the mayor, the clerk, and members of the city The trial court erred in limiting this tes- council of said city. They further allege timony in the manner set out in the instruc- that there has been introduced in said countion, and in not giving the instruction asked, cil and offered for enactment a proposed oror something like 'it. The true rule, short-dinance, making it unlawful for any person ly stated, is that proof of prior intercourse or persons to give, manage, or conduct any is admissible to give rise to a presumption public theater, theatrical exhibition, vaudeof consent to the act in question. It is true that defendant was found not guilty of rape, but the testimony adduced was admissible, and should have been considered as bearing upon the included offense of assault with intent to commit rape, of which offense defendant was convicted. Prosecutrix and defendant are both depraved, and it is doubtless better for the safety of society that defendant be kept in confinement; but, no matter how degenerate and vicious he may be, he is entitled to a fair trial under proper instructions from the court. ville entertainment, or moving picture show, or to engage in the performance thereof, on the first day of the week, commonly called Sunday, and providing that violation of such ordinance shall be punished by fine not exceeding $100 and costs, or by imprisonment on default in payment of such fine. This ordinance plaintiffs allege the city council intends to enact, and the mayor intends to approve and publish it when passed; and they further aver that, if so enacted, it will be void and of no effect, in that such legislation will be in violation of section 1 of For the errors pointed out, the judgment article 1, of the Constitution of Iowa, formust be, and it is reversed. MAJESTIC THEATER CO. et al. v. CITY JUNCTION AGAINST PASSAGE. An injunction will not lie to restrain a city council from passing a city ordinance prohibiting theatrical exhibitions on Sunday, and imposing a punishment by fine or imprisonment, though the ordinance, if passed, would be invalid. [Ed. Note. For other cases, see Injunction, Cent. Dig. § 154; Dec. Dig. § 84.*] 2. INJUNCTION (§§ 84, 85*) CITY ORDINANCE -POLICE REGULATION-ADEQUATE REMEDY AT LAW. A city ordinance, prohibiting theatrical exhibitions on Sunday and providing a penalty by fine or imprisonment for violation thereof, was in the nature of a police regulation, and, since, if invalid, its invalidity would constitute a perfect defense to a prosecution for its violation, an injunction will not be granted to restrain its enactment or its enforcement, under the rule that complainant had a complete and adequate remedy at law. [Ed. Note.-For other cases, see Injunction, Cent. Dig. §§ 154-156; Dec. Dig. §§ 84, 85.*] Appeal from District Court, Linn County; W. N. Treichler, Judge. bidding discrimination between classes of persons, and further, will be in violation of the fourteenth amendment to the Constitution of the United States, in that it abridges the privileges of the citizens of the United States, and its enforcement would work a deprivation of liberty, and property without due process of law, and a denial to plaintiffs of the equal protection of the laws. Plaintiffs further allege that the ordinance, if enacted, will be in conflict with the statutes of the state. They further say that, while the statute gives cities power to regulate the conduct of theaters and other places of amusement, it does not provide, nor was it intended to authorize, the closing of such business on any day of the week. They still further contend that the state itself is without authority to empower the city to prohibit theaters, in that such an act would be an unjust and unreasonable interference with the personal liberty of the plaintiffs, and deprive them of liberty and property without due process of law, contrary to the provisions of section 1, article 1, of the Constitution of the state, and of the fourteenth amendment to the Constitution of the United States. Finally, plaintiffs say that the exhibitions given by them are neither obscene, indecent, or immoral, and the enforcement of such ordinance will operate to their great The opinion states the nature of the case injury, for redress of which they have no and the material facts. Affirmed. Grimm & Trewin and P. W. Tourtellot, for appellants. Redmond & Stewart, Wm. Chamberlain, and F. C. Byers, for appellees. plain, speedy, and adequate remedy at law, and they therefore pray that defendants may be enjoined from passing or enacting such ordinance; that the mayor be enjoined and restrained from approving or signing the same, if passed, and the clerk be likewise restrained from attesting or authenticating it. WEAVER, J. The plaintiffs appeal from a ruling of the district court, sustaining deFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes To this petition, the defendants demurred | plaining has no adequate protection or regenerally, and the demurrer being sustained dress at law. See authorities above cited. they appeal. There is no such threat of irreparable injury [1] If we correctly apprehend the position in the attempted enforcement of a void ordiof counsel for appellants, it is that the ordi-nance, which is in the nature of a mere ponance pending before the city council would lice regulation, for its invalidity is a perfect be void and of no legal force or effect if defense to any prosecution for its violation. passed, and for this reason it is sought to West v. City, 10 Paige (N. Y.) 539; Poyer enjoin its passage. In other words, the court v. Des Plaines, 123 Ill. 111, 13 N. E. 819, 5 is asked to sit in judgment upon a matter of | Am. St. Rep. 494; Burnett v. Craig, 30 proposed legislation in advance of its enact- Ala. 135, 68 Am. Dec. 115; Alpers v. San ment, and by its injunction to interrupt the Francisco (C. C.) 32 Fed. 503. city's exercise of its legislative functions. It should be noted, however, in this conIn this country, where the independence of nection that a city or town, organized under the legislative and judicial branches of gov- the laws of the state, has a twofold characernment has been preserved by constitution- ter. It is not only endowed with certain pureal guaranties, it would seem hardly neces-ly legislative functions, by virtue of which it sary to argue the erroneous character of such proposition; but counsel, while conceding the general rule to be that courts will not interfere with the proceedings of a legislative body, contend very earnestly that the rule is subject to exceptions, and that the case before us presents one of them. enacts police regulations and other general rules, by which the peace, good order, convenience, comfort, and prosperity of its inhabitants are sought to be conserved or promoted, but it is also charged with other powers, which are administrative, rather than legislative, and still others, more or less an It is first said that, if a proposed ordinance | alogous to those of a private business corwould be void as an ultra vires enactment, then its passage by the city council may be enjoined. No authority cited recognizes or sustains the rule as thus broadly stated. Indeed, it may be said that the courts will, under no circumstances, attempt to enjoin the exercise of the strictly legislative functions of a city council. This is something more than a rule established by precedent. It is a constitutional limitation of judicial power. The authorities relied upon established no exception to this statement. True there are cases in which the enforcement of a void ordinance may be enjoined, but that is añ altogether different proposition. The law upon this subject is well stated by an eminent writer as follows: "It is unquestionably true that purely legislative acts, such as the passage of resolutions or the adoption of ordinances by a municipal body, even though alleged to be unconstitutional and void, will not be enjoined, since it is not the province of a court of equity to interfere in the proceedings of municipal bodies within their jurisdiction, or to control the exercise of their discretion. A distinction, however, is properly drawn between restraining an illegal act, attempted under the authority and sanction of a municipal body, and restraining the corporation itself from granting such authority. And, while courts will not enjoin municipal bodies from the passage of ordinances or resolutions, the courts may and will, on a proper case being shown, prevent their enforcement, and for this purpose may enjoin proceedings thereunder which would otherwise result in irreparable injury." High on Injunction (4th Ed.) § 1243; Gas Co. v. Des Moines, 44 Iowa, 505, 24 Am. Rep. 756; Gas Co. v. City, 87 Ala. 245, 6 South. 113, 4 L. R. A. 616. [2] But even this remedy will not be avail poration, by which it makes contracts, constructs improvements, and performs many acts which, directly or indirectly, affect personal and property rights. Where legislation of the first-mentioned kind is pending before the council, the court will not, as we have already said, interfere with its passage, or undertake to adjudicate its validity in advance of its passage. But, where the council, in the exercise of its administrative or business functions, undertakes ultra vires, or in violation of the city's contract obligations, the enactment of an ordinance, by the very passage of which, as distinguished from its enforcement, irreparable injury will be done to the complaining party, interference by injunction with such proceedings is sometimes allowable. Poppleton v. Moores, 62 Neb. 851, 88 N. W. 128; Whitney v. New York, 28 Barb. (N. Y.) 233; Lewis v. Waterworks, 19 Colo. 236, 34 Pac. 993, 41 Am. St. Rep. 248; State v. Superior Court, 105 Wis. 671, 81 N. W. 1046, 48 L. R. A. 819; Waterworks v. New Orleans, 164 U. S. 471, 17 Sup. Ct. 161, 41 L. Ed. 518; Railway Co. v. South Orange, 58 N. J. Eq. 83, 43 Atl. 53. The proposed ordinance in the present case is clearly in the nature of a police regulation. If it be passed, and is a valid exercise of municipal power, then it is the duty of the plaintiffs to obey it, even though its enforcement tends to reduce the profits of their business. If it be void for unreasonableness, or is not within the power delegated to the city, or because the statute conferring the authority is itself unconstitutional, as counsel argue, then the courts will not enforce it, and no one can suffer irreparable injury therefrom. Such being its nature, it follows from what we have already said that this action cannot be sustained, and the trial court did not err in sustaining the demurrer to the petition, or in dissolving the This conclusion renders it unnecessary for, received and aided in concealing certain us to discuss the constitutional questions stolen property, consisting of onions, cabbage, raised in behalf of the appellants, or to de- potatoes, and other articles therein specified; fine the scope and extent of the authority said property having been stolen by one Enos which the statute (Code 1897, § 703) gives to Dean. They were convicted before the juscities "to regulate, license or prohibit theatri- tice, and appealed to the district court, where cal exhibitions," or to decide whether this they demurred to the information, on the delegation of power implies authority to pro- ground that it charged more than one ofvide penalties for violation of the regulations fense, that it failed to set out the names of or prohibitions so enacted. Whatever may be the owners of the property, and was bad for the final holding in these respects, the plain- duplicity. The demurrer was overruled, and tiffs will find ample protection at law. thereupon the defendants entered pleas of The judgment and rulings of the district not guilty and of former acquittal. At the court are therefore affirmed. close of the state's evidence, it was required to elect on which of the articles alleged to have been stolen and concealed it would rely for a conviction, and the state then elected to rely upon the charge that the defendants had received and aided in concealing two bunches of shingles. The trial then proceeded, and the defendants were again found guilty. STATE v. CONKLIN et ux.t (Supreme Court of Iowa. Nov. 14, 1911.) 1. CRIMINAL LAW (§ 1178*)-APPEAL-ERROR WAIVED. Where accused presented no brief or argument upon an alleged error, it will not be considered on appeal. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3011-3013; Dec. Dig. 8 1178.*] 2. RECEIVING STOLEN GOODS (§ 9*)-TRIALVERDICT-EFFECT. Where an information charged the reception and concealment of numerous stolen articles, and no election was compelled in the trial in the justice court, a verdict finding defendants guilty, as charged in the information, was an implied conviction of the reception' and concealment of all articles enumerated. [Ed. Note.-For other cases, see Receiving Stolen Goods, Cent. Dig. § 21; Dec. Dig. § 9.*] 3. CRIMINAL LAW (§ 547*)-EVIDENCE-WITNESS WITHOUT JURISDICTION. Where a witness who had testified in a previous trial was beyond the jurisdiction, and his testimony had not been taken down in shorthand, it was permissible for one who heard it to give the substance thereof against accused. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 1237-1246; Dec. Dig. 547.*1 4. RECEIVING STOLEN GOODS (8 4*)-CON CEALMENT-POSSESSION. [1] 2. The appellants present no brief or argument on the error claimed to have been committed in overruling their demurrer to the information, and we need not give the subject further consideration. [2] 3. No election was required by the justice, and the defendants say that, as they could only be convicted of receiving and concealing one of the articles enumerated in the information as having been stolen and concealed, they were acquitted of all of the other charges contained in the information. But the jury before whom the trial was had in the justice court found the defendants guilty as charged in the information, and this implied a conviction on every material ailegation in the information. State v. Turner, 19 Iowa, 144. [3] 4. Enos Dean, who stole the property in question, was a witness for the state on the trial of the defendants before the justice, and was fully cross-examined by counsel for the defendants. When the trial took place In a prosecution for concealing stolen prop-in the district court, Dean was in the state erty, it is not essential to conviction that accused should have had possession of it; it being enough that he knew it was stolen, and aided in the concealment. [Ed. Note. For other cases, see Receiving Stolen Goods, Cent. Dig. § 6; Dec. Dig. 8 4.*] Weaver and Evans, JJ., dissenting. Appeal from District Court, Washington County; K. E. Willcockson, Judge. The defendants were convicted of receiving and concealing stolen property, and appeal. Affirmed. P. J. Hanley, for appellants. George Cosson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State. of Washington, and, of course, beyond the reach of the process of the district court. His testimony on the trial before the justice was not taken in shorthand, but the justice testified on this trial that he made a memorandum of Dean's testimony as it was being given, and that he could repeat the substance of it by refreshing his recollection from such memorandum. The justice was then permitted to testify as to what Dean said when a witness on the first trial. One of the jurors who served on the trial in justice court was also allowed to state what Dean had there testified to. The admission of this testimony is the foundation of the appellant's most serious complaint. We have recently held that the stenographic notes of SHERWIN, C. J. The defendants were the testimony of a witness for the state in a originally tried in justice court on an in-criminal trial may be used on a retrial of the formation charging that they had knowingly same case, where the witness is, at the time •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes ferring to such writs as attachment, execution, and the like. [Ed. Note.-For other cases, see Executors Appeal from District Court, Butler County; J. J. Clark, Judge. of the second trial, living, but beyond the jurisdiction of the court. State v. Grant Brown, 132 N. W. 862. We had theretofore held that such evidence was competent in and Administrators, Dec. Dig. § 416.*1 case of the death of the witness. State v. Fitzgerald, 63 Iowa, 268, 19 N. W. 202; State v. Kimes, 132 N. W. 180. And we have also Plaintiff filed a claim in probate against held that it is competent to prove the sub- the estate of P. J. Clarke, deceased, and askstance of the testimony of a deceased wit-ed that it be established and given a prefness, even though such testimony be not tak-erence in the payment of claims. The aden down in writing. State v. Fitzgerald, ministrator admitted the claim, but denied supra; Greenleaf on Evidence, § 165. See, also, Harrison v. Charlton, 42 Iowa, 573; Fell v. Railroad Co., 43 Iowa, 177. [4] Dean occupied a room in the defendants' home, and the defendants asked an instruction to the effect that if the stolen shingles were found in his room, in his possession, then they were not in the possession of the defendants. This instruction was refused, and the ruling is said to be error. It was not error to refuse the request. It was not necessary to show that the stolen property was ever in the possession of the defendants. It was enough to show that they knew that it was stolen, and that they, by some means, aided in concealing it. State v. St. Clair, 17 Iowa, 149. And there was abundant evidence of that fact. The evidence, in fact, showed that the shingles were stolen and put in Dean's room upon the defendants' request, and when they were discovered by the aid of a search warrant both defendants stated that they had bought them. We have read the evidence in this case with care, and think it sufficiently supports the verdict and judgment. There is no error demanding a reversal of the judgment, and it is therefore, affirmed. Affirmed. WEAVER, J. (dissenting). The admission of testimony as to matters formerly sworn to by the absent witness is clearly erroneous, and should work a reversal. EVANS, J., joins in the dissent. MOSS v. WILLIAMS. (Supreme Court of Iowa. Nov. 14, 1911.) EXECUTORS AND ADMINISTRATORS (§ 416*)INSOLVENT ESTATES-PERFORMANCE SEIZURE OF PROPERTY BY PROCESS OF COURT." Where plaintiff performed labor for deceased within 90 days of the appointment of an administrator upon his estate, which was found to be wholly insolvent, plaintiff was not entitled to any preference, under Code, § 4019, providing that, when the property of any person shall be seized upon by any process or plac ed in the hands of a receiver, trustee, or assignee, for the purpose of paying debts, the debts owing to employés for labor performed within 90 days past will have priority, the section not referring to administration; the term "seizure of property by process of court" re plaintiff's right to be treated as a preferred creditor. The trial court allowed the claim, but refused to give it preference over those of other creditors, and plaintiff appeals. Affirmed. C. M. Greene, for appellant. M. Hartness, for appellee. WEAVER, J. The plaintiff's claim is for labor performed by him for the deceased during the lifetime of the latter, and within 90 days preceding the appointment of the administrator. The appraised value of the estate is but $1,600, while the admitted liabilities to general creditors amount to about $13,000. The plaintiff's demand for preference is founded upon Code, § 4019. That section, so far as it affects the present case, reads as follows: "When the property of any company, corporation, firm, or person shall be seized upon by any process of any court, or placed in the hands of a receiver, trustee or assignee, for the purpose of paying or securing the payment of the debts of such company, corporation, firm or person, the debts owing to employês for labor performed within ninety days next preceding the seizure or transfer of such property to an amount not exceeding one hundred dollars to each person shall be a preferred debt and paid in full. To give the statute the effect claimed for it by the plaintiff would necessitate a forced and unnatural construction of the language employed, which we are not willing to sanction. As ordinarily understood by lawyers, the "seizure" of property by "process of court" has reference to the taking possession thereof by an officer under attachment or execution, or other appropriate writ or order of a court. An administrator does not "seize" the property of his intestate. The legal title to the property is in him. The letters issued to him by the court are evidence of that title, but they have no effect as a writ or other process; and if any person denies his right, or resists him in assuming possession, he must bring his action to recover the same, just as must every other person whose property rights are thus invaded. Section 4019 is not found in our probate statute, and makes no reference thereto; and, while the mere fact of its location of |