# Young v. City of Des Moines > Supreme Court of Iowa · February 22, 1978 · 262 N.W.2d 612 URL: https://www.frixlaw.com/law-library/cases/9852017 ## Case - **Full name:** Terry L. YOUNG, Appellee and Cross-Appellant, v. CITY OF DES MOINES, Iowa, Appellant and Cross-Appellee - **Court:** Supreme Court of Iowa - **Decided:** February 22, 1978 - **Citations:** 262 N.W.2d 612; 1 A.L.R. 4th 431; 1978 Iowa Sup. LEXIS 1205 - **Precedential status:** Published - **Opinion:** Dissent by LeGRAND - **Judges:** Rawlings, Legrand, Rees, Uhlenhopp, Divisions, Harris - **Cited by:** 41 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled on other grounds by Parks v. City of Marshalltown, 1989 Iowa Sup. LEXIS 149 (1989). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9852017 ## How later opinions describe it (automated extraction) - noting that if legislature had intended to exempt municipal corporations from liability for punitive damages in wrongful death actions, it could have easily done so; therefore, despite state Tort Claims Act, which "specifically precluded" punitive damages, legislature's "failu… - noting that punitive damages are “specifically precluded” under the ITCA ## Opinion text LeGRAND, Justice (dissenting). This is a case of statutory construction involving the meaning of § 755.4(1) and (2) relating to the manner in which warrantless arrests on non-indictable misdemeanors may be made. The provisions of the statute are set out in the majority opinion, and I will not repeat them here. Paraphrased, the statute provides persons may be arrested on probable cause for indictable offenses, but not for non-indictable ones. *623 I dissent from Divisions I, II and III because I believe the majority reaches a totally unacceptable result by ignoring a number of rules of statutory construction this court has previously adopted. Since no constitutional questions are involved, I take it as admitted the legislature may enact any standards for arrest it desires. City of Waterloo v. Selden, 251 N.W.2d 506, 508 (Iowa 1977). The problem, then, is not to decide what the legislature could enact but what it did enact. Sometimes there is real uncertainty about legislative intent. There can be none here. Long legislative acceptance of our construction of the statute plus a recent expression of legislative policy again confirming that interpretation belie what the majority says. Section 755.4 has been part of our statutory law for more than a hundred years. During that time it has remained virtually unchanged. On at least two occasions, we have spelled out what the statute means. In the years following these decisions, the legislature left the statute unchanged. Under familiar rules of statutory construction, this means the legislature has accepted our interpretation. Mallory v. Paradise, 173 N.W .2d 264, 266 (Iowa 1969); Kenkel v. Iowa State Highway Commission, 162 N.W.2d 762, 766 (Iowa 1968). In the present case we have even more conclusive evidence of legislative intent. A new criminal code was adopted last year. § 755.4 was reenacted in the new criminal code verbatim. See § 804.7, Iowa Criminal Code, a matter the majority quickly brushes aside. In the face of this history, the majority today says this section does not, after all, mean what both the legislature and this court have said it means because other states have rules contrary to ours. Until now, I have thought that our legislature, not those of other states, decides such matters for our state. We may not rightly refuse to enforce valid legislative enactments simply because we do not like them. It is not within our power to separate good laws from bad ones. The arguments used by the majority serve to point up the fallacy of the result reached. We are told that both Snyder v. Thompson, 134 Iowa 725 , 112 N.W. 239 (1907) and State v. Small, 184 Iowa 882 , 169 N.W. 116 (1918) improperly “extend, enlarge, or otherwise change” the language of the statute — -a strange accusation in view of what the majority does to it today — because Snyder said the offense must have been “committed in fact” while Small said it must have been “actually committed” instead of using the unembellished term “committed” as the statute did. I confess I am unable to make this subtle distinction. If an offense is committed, I am willing to say it was “committed in fact” or it was “actually committed.” Surely this is not a “more demanding interpretation” of the statute, as the majority claims. Neither can I agree that the instruction on legal arrest amounted to reversible error, or indeed error at all. This concerns the difference between subsections (1) and (2) of § 755.4. In (2), an arrest may be made only if a non-indictable misdemeanor has actually been committed. In (1), an arrest may be made if it has been either committed or attempted in the officer’s presence. In some cases this might be significant; but this arrest was for intoxication. This is a status offense. Defendant was either intoxicated or he was not intoxicated. If intoxicated when the officer confronted him, defendant was intoxicated a few seconds before that time, unless we are to subscribe to a doctrine of instantaneous intoxication. The charge could be made under either subsection under these facts. The proof, the instructions, and the verdict would necessarily be the same in either event. It was not error to instruct as the court did. If it was error, it was clearly not reversible error. I have made no reference to that part of subsection (1) which speaks of attempting to commit an offense in the officer’s presence because it is not here applicable. One does not attempt to be intoxicated. *624 The last reason urged by the majority is that the statute imposes an onerous burden upon the police. It does indeed as do many of the other duties placed upon them, some by judicial fiat. The statute under consideration is a legislative, not a judicial, determination of how an arrest must be made. The majority points out that the new criminal code creates new classes and grades of crime which make the policemen’s lot even more difficult in deciding whether to arrest or not; but the legislature which made those classifications is the same body which at the same time decided to leave the arrest statute alone. I am by no means convinced that § 755.4 (or its successor in the Iowa Criminal Code) is a good statute, but I am convinced that the legislative intent in enacting it is clear beyond peradventure. We have no right to judicially repeal a proper legislative enactment, which is what the majority does today. I therefore dissent from Divisions I, II and III and from reversal on the city’s appeal, although I join the majority in reversing on defendant’s appeal on the grounds set out in Division IV of the majority of opinion. REES and UHLENHOPP, JJ., join in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9852017. Public record. Not legal advice.