GIVEN, J. The indictment charges that the defendant “did unlawfully and feloniously seduce, debauch, and carnally know one Mary Roll, an unmarried person of previously chaste character." The language of the statute (Code, § 4762) is: "If any person seduce and debauch any unmarried woman of previously chaste character." Defendant contends that the statute does make it a crime to seduce an "unmarried person," but expressly provides that the one seduced must be "an unmarried woman." "Person: A human being, as including body and mind; a man, woman, or child; an individual." Standard Dict. The words "unmarried person," in the indictment, taken alone, do not show whether that unmarried person was man or woman; but it is not in this narrow sense that we are to construe this indictment. The law has never recognized that the crime of seduction can be committed by any other than male persons, nor upon any other than female persons. "In applying the statute, the connection in which words are used is not to be disregarded." State v. Hemm, 82 Iowa, 610, 48 N. W. 971. In that case the words "unmarried female" were used in the indictment, and it was held that the alleged defect did not affect any substantial right of the defendant. "The indictment must be direct and certain as regards (2) the offense charged." Code, 5280. "The indictment is sufficient if it can be understood therefrom that the act or omission charged as the offense is stated in ordinary and concise language, with such certainty and in such a manner as to enable a person of common understanding to know what is intended, and the court to pronounce judgment according to law upon a conviction." Id. § 5289. The charge being seduction, and the person seduced being Mary Roll, every person of common understanding would know that it was intended to charge that Mary Roll was an unmarried woman; and therefore the indictment is direct and certain as regards the offense charged, and sufficient, under the statute.

2. There was evidence as to Mary Roll's association with other men prior to the alleged seduction, and defendant complains that this was not referred to in the instructions. The issue as to previous chaste character was quite fully and fairly submitted to the jury, and nothing further was asked. It was not for the court to emphasize parts of the evidence by quoting or specifically referring to it in the instructions.

There was evidence tending to impair the credibility of the prosecutrix's testimony, and it is complained that the court did not sufficlently instruct on this subject. The instructions are plain and explicit on that point, and nothing further was asked. Other complaints against the instructions are equally without merit.

3. Defendant contends that the verdict is not sustained by the evidence, for that it shows that Mary Roll was not of previous chaste character, and fails to show that defendant

used any seductive arts. There is evidence that Mary Roll, then 15 years of age, had been in the company of other men two or three times under circumstances that showed her to have acted very imprudently; but whether more would have been found from the evidence was for the jury to say. We cannot say that they were not warranted in finding that she was of previous chaste character. The prosecutrix testifies that she refused to submit to the defendant unless he would promise to marry her if she became pregnant, and that he so promised, and thereupon she submitted. It is contended that this does not constitute seduction. But this is not all of her testimony on that subject. She testifies that he had been with her all evening, about two hours and a half, before the intercourse, "making love to me, kissing me, and having his arm around me. He had been doing that all evening before he went up to this place." His letters to Mary tend strongly to corroborate her, and to show seductive arts. See State v. Hughes (Iowa) 76 N. W. 520. While there are many facts disclosed in the evidence favorable to the defendant, we cannot say that the verdict is not sustained by the evidence. Affirmed.

CASCADEN v. CITY OF WATERLOO et al. (Supreme Court of Iowa. Dec. 15, 1898.) MUNICIPAL CORPORATIONS-WARDS-ORDINANCES

-RESOLUTIONS-AMENDMENT-INJUNCTION

-ACTION BY TAXPAYERS.

1. A taxpayer has a right of action to restrain a city from holding an election in a new ward, claimed to have been illegally created, and from expending the public revenues in defraying the expenses thereof.

2. Code, tit. 5, § 641, authorizing the creation and changing of city wards, does not provide whether the power shall be exercised by ordinance or resolution. Section 680 provides that cities may make ordinances "for carrying into effect and discharging the powers and duties conferred by this title." Held, that a change of the wards of a city must be by ordinance, and not by resolution.

3. An ordinance fixing the wards of a city can be amended or repealed only by another ordinance, and not by a resolution.

4. Where an ordinance divides a city into four wards, a resolution changing two of them, and creating a fifth, is void, under Code, § 681, where it does not contain "the entire ordinance or section revised or amended," as required by such section.

5. A resolution of a city council, not adopted by a majority of the whole number of the council, as required by Code, § 683, is void.

Appeal from district court, Blackhawk county; A. S. Blair, Judge.

Plaintiff, a taxpayer in the city of Waterloo, brings this action to restrain the defendants, the mayor and council of said city, from enforcing a certain resolution creating a new ward in said city. Defendants' demurrer to plaintiff's petition was sustained, and, plaintiff electing to stand on his petition, judgment was rendered against him, from which he appeals. Reversed.

v. Mason City, 53 Iowa, 418, 5 N. W. 593. Appellees concede that such is the law, but contend "that the statutes, or rather the law, of this state does not require that wards be established by ordinance." This action being under the present Code, we turn to it to solve this question, only referring to prior legislation and decisions thereon so far as they aid in construing the present statute. The legislation in respect to cities and towns is largely, if not entirely, contained in title 5 of the present Code, which title is devoted entirely to that subject, and is divided into 14 chapters. An examination of title 5 shows that municipal corporations are authorized to act by ordinance and by resolution,-sometimes by ordinance only, sometimes by resolution only, sometimes by ordinance or resolution. For instance, sections 640, 669, 675, 676, and paragraph 11 of section 668, require powers conferred to be exercised by ordinance; sections 628 and 810 allow the powers therein referred to to be exercised by resolution; and sections 619, 620, 751, 798, 799, 802, 811, 825, 836, 841, and 842 permit the powers therein referred to to be exercised by ordinance or resolution. Section 641, authorizing the creation and changing of wards, is silent as to whether that power shall be exercised by ordinance or resolution. Section 680 is as follows: "Municipal corporations shall have power to make and publish from time to time ordinances not inconsistent with the laws of the state for carrying into effect or discharging the powers and duties conferred by this title, and such as shall seem necessary and proper to provide for the safety, preserve the health, promote the prosperity, improve the morals, order, comfort and convenience of such corporations and the inhabitants thereof, and to enforce obedience to such ordinances by fine not exceeding one hundred dollars, or by imprisonment not exceeding thirty days." Section 482 of the Code of 1873 was the same as this section 680, except that the word "title" is used therein instead of "chapter," as in this section. This change was necessitated by the rearrangement of the titles and chapters, and leaves the effect the same, the word "chapter" in section 482 being quite as broad in its application as the word "title" in the present Code. Appellant's contention is that, the power to establish and change wards being conferred by title 5, § 680, requires that it shall be exercised by the enactment of an ordinance. There being no direct provision as to whether the power conferred by section 611 shall be exercised by ordinance or by resolution, we are called upon to construe said section 680 in the light of other provisions of the title, and of prior decisions, and say whether this power can only be exercised by ordinance. The two instances referred to in which the council may act by resolution are in proposing a change of the name of the corporation, and submitting the same to a vote of the people (section 628), and in declaring it advisable to

make street improvements and sewers (sertion 810). Said sections authorizing action by ordinance or resolution relate to annexation of territory, the acceptance of dedicated streets, etc., the changing of water courses, the reconstruction of street improvements or sewers, the levy of special assessments. for street and sewer improvements, the correction of informal or irregular assessments, for the issuance of street improvement and sewer certificates, and for the payment of the costs of street improvements or sewers. It is also provided as to ordinances that "no ordinance shall contain more than one subject, which shall be clearly expressed in its title; and no ordinance or section thereof shall be revised or amended unless the new ordinance contain the entire ordinance or section revised or amended, and the former ordinance or section shall be repealed." Section 681. "Ordinances of a general or permanent nature and those for the appropriation of money shall be fully and distinctly read on three different days, unless three-fourths of the council shall dispense with the rule." Section 682. Section 686 requires all ordinances to be recorded in a book kept for that purpose, and to be authenticated by the signature of the presiding officer and the clerk; "and all ordinances of a general or permanent nature, and those imposing any fine, penalty or forfeiture, shall be published," etc. There are no such provisions with respect to resolutions, and it is manifest that much greater care is required in forming, adopting, publishing, and preserving ordinances than resolutions, and especially so as to such as are of a general or permanent nature. Ordinances are of a general nature when general in their application, and of a permanent nature when their provisions, unless repealed, will continue in force indefinitely. It will be observed that in the instances wherein action by resolution, or by resolution or ordinance, is authorized, the power exercised is not of a general or permanent nature; that the ordinance or resolution is not general to all in its application, and does not continue in force indefinitely, but only until its purposes are accomplished. The power to divide the city into wards is certainly a power of a general and permanent nature, for, when exercised, it applies to all alike, and, unless repealed, continues in force indefinitely. In McManus v. Hornaday, 99 Iowa, 508, 68 N. W. 812, the question was whether the grade of a street established by ordinance of the city of Keokuk could be changed by resolution. That city exists under a special charter, which authorizes the city council to make and publish ordinances upon certain subjects, among which are "such laws and ordinances as to them shall seem necessary to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of said city and the inhabitants thereof." Section 680 of the Code not only so provides, but also provides for the enact

ment of ordinances "for carrying into effect or discharging the powers and duties conferred by this title." The power to establish and change wards, as we have seen, is conferred by that title. After holding that the council of the city of Keokuk had power to change the grade of the street, we held that it could "only be legally exercised by the enactment and publication of ordinances." It is true, in that case there was no provision for exercising any of the powers conferred by resolution, and it is equally true that in this way there is no express authority for creating or changing wards by resolution. We have said in that case, "We do not think that a matter of such importance to property owners as the establishment of grades was intended to be exercised by the mere passage of resolutions." Certainly the establishing or changing of wards in a city is of equal importance. Merchants' Union Barb-Wire Co. v. Chicago, B. & Q. Ry. Co., 70 Iowa, 106, 28 N. W. 494, is cited. In that case the city of Des Moines had, in 1866, granted to defendant by ordinance the right to construct its track and side tracks upon Vine street, "but requiring that upon the part of the street whereon plaintiff's lots abutted the defendant shall build its track on the north side." In May, 1874, the city, by resolution, authorized the defendant to construct another track in said street opposite plaintiff's property. The first question considered was whether, in view of the restriction contained in the first grant, the city could grant further privileges. It is said: "In our opinion, the ordinance simply grants the right of way in the north half of the street, and is not a restriction in the nature of a prohibition against the occupancy of the south side. That side was left by the ordinance just as a whole street before the ordinance was passed." The third paragraph of that opinion holds that the grant of the right of way in streets is simply a permission, and that: "There exists no necessity for expressing this grant of authority by ordinance, as the statute (Code 1873, § 464) conferring authority upon a city to authorize or forbid the construction of railway tracks in its streets does not prescribe the manner of exercising the authority, whether by ordinance, resolution, or vote duly recorded. The statute being silent upon this subject, the authority may be exercised by resolution duly passed, or vote duly taken, appearing in the proper record of the city." Notwithstanding said section 464 is included in chapter 10 of title 4 of the Code of 1873, no reference is made in this opinion to said section 482 of that title and chapter. That section, as we have seen, provided for carrying into effect the powers conferred by that chapter by making and publishing ordinances. If it may be said that this second grant or right of way in Vine street could be made by resolution, still we are of the opinion that a matter of such general and permanent nature as the establishment of wards was not intended by the leg

islature to be made in any less definite and enduring manner than by ordinance. There are a number of Iowa cases bearing more or less directly upon the question, but, regarding the holding in McManus v. Hornaday as directly applicable and controlling, we need not refer further to these citations. Our conclusion is that the creating or changing of the boundaries of wards must be by ordinance.

4. The question whether an ordinance can "be amended, repealed, or suspended by resolution or vote" is suggested, but cannot be determined, in Merchants' Union Barb-Wire Co. v. Chicago, B. & Q. Ry. Co., supra. Surely, when the statute requires that the power conferred must be exercised by ordinance, and it has been thus exercised, the ordinance can only be amended, repealed, or suspended by ordinance. In amending, repealing, or suspending such an ordinance the council act under the same authority as authorized the adoption of the prior ordinance. Another potent reason is that ordinances of a general or permanent nature are required to be published in a certain manner, and thereafter stand as the law, of which all must take notice. Resolutions are not required to be so published, and, therefore, the public would not be informed of amendments, repeals, or suspensions of ordinances made by resolution. We conclude that ordinances of a general or permanent nature cannot be amended, repealed, or suspended by resolution, but by ordinance only.

5. It will be observed that there was an ordinance fixing the boundaries of the four wards, and that by this resolution the boundaries of two of these wards were changed, and a fifth ward created. Thereby it was sought to revise and amend the ordinance. If an ordinance might be revised, repealed, or amended by resolution, this resolution is not effective for that purpose, as it does not "contain the entire ordinance or section revised or amended," as required by section 681, and, therefore, the ordinance remains in full force. Another reason why this resolution cannot be effective is that it was not adopted by concurrence of a majority of the whole number of the council, as required by section 683. Our conclusion upon the whole record is that the court erred in sustaining the demurrer to plaintiff's petition, and the judgment is, therefore, reversed.

STATE v. TRAUGER.

(Supreme Court of Iowa. Dec. 14, 1898.) GRAND JURY-EXAMINATION OF ACCUSED-FAILURE OF ACCUSED TO TESTIFY-COMMENTS. 1. Where accused was brought before the grand jury without his consent, but, before any statement was made, he was fully apprised of his right to retire, and that if he made a statement it must be because he desired to do so in his own interest, and he expressed a desire to make a statement, it was not error.

2. Under Code, § 5484. forbidding the state's attorney to "refer" to accused's failure to tes

tify, it was error to say: "That accused man ought to be honest to society, and if we have made a chain, and put it around you, and fasten it, and all you have to do is to reach in your pocket and get an instrument and snap it asunder, you ought to do it."

Appeal from district court, Monona county; J. F. Oliver, Judge.

Indictment for burglary. Verdict of guilty, and a judgment thereon. The defendant appealed. Reversed.

George A. Oliver, for appellant.

GRANGER, J. 1. The defendant was in confinement in the county jail of Monona while the charge was pending before the grand jury, and, at the instance of the grand jury, he was brought before it, and while there he was examined as to the charge, and his testimony is in record, and in no way tends to his crimination. After the indictment was returned, defendant moved to quash on the ground of his being so brought before the grand jury and examined. It clearly appears that he was not taken before the grand jury at his request, but it does appear, very satisfactorily. that, when before the grand jury, he was told by the county attorney that he was not compelled to come there, nor to make any statement unless it was of his own free will, and he believed it to his interest to do so; and he was asked if he understood it, and he answered that he did, and said: "I want to tell it, because I know just where I got the satchel. I bought it of a tramp, and I want to make my statement before the grand jury." George A. Oliver had before been appointed by the court to defend for him, and he (the attorney) had no notice of his presence before the grand jury. The proceeding seems entirely free from intentional wrong, it appearing that the county attorney had no notice of it until he came into the grand jury room and found defendant there, and, before he was examined, gave him the information above stated Affidavits of grand jurors fully substantiate the statement of the county attorney as to the information given the defendant, and his expressed desire to make his statement. It is true that he states otherwise, but the fact fully appears. It is conceded that defendant could properly be before the grand jury at his own request. Nothing that we here say should be construed otherwise than as an unqualified disapproval of the act of the grand jury in bringing the defendant before it, on its own motion. The information given the defendant, when before the grand jury, and before he made any statement, fully apprised him of his right to retire, and that, if he made a statement, it must be because he desired to do so, in his own interest. In view of such information, and of his expressed desire to make the statement he did make, we think the case stands as if he had been brought before the jury on his own request for that purpose. It in no way appears that, up to the time he had the information and expressed the desire, he had been 77 N.W.-22

prejudiced. In fact, the contrary appears. It was not error to refuse to quash the indictment.

2. The county attorney in his opening argument to the jury made use of the following language: "If a man comes to me, and says, 'Ross, your garment is a stolen garment,' I think I'll show him where I got it. I will call in Mr. Olson, and show that he made it. That accused man ought to be honest to society, and if we have made a chain, and put it around you, and fasten it, and all you have to do is to reach in your pocket and get an instrument and snap it asunder, you ought to do it." The following is section 5484 of the Code: "Defendants in all criminal proceedings shall be competent witnesses in their own behalf, but cannot be called as witnesses by the state; and should a defendant not elect to become a witness, that fact shall not have any weight against him on the trial, nor shall the attorney or attorneys for the state during the trial refer to the fact that the defendant did not testify in his own behalf; and should they do so, such attorney or attorneys shall be guilty of a misdemeanor, and defendant shall for that cause alone be entitled to a new trial." Whether or not the language used amounts to a reference to the fact that defendant did not testify in his own behalf-inasmuch as it does not in terms do so depends on what the jury might reasonably understand from its use. The object of the statute is to keep such fact from the minds of the jurors, and thus avoid prejudice on account of it. The first part of the statement, as to the garment, may be said not to refer to defendant; but what other application can be put on the other part? It commences, "That accused man." What accused man? That it has a different reference from the first part is clear, for there he is himself the accused man. In the latter part he says: "And if we have made a chain, and put it around you, and fasten it, and all you have to do is to reach in your pocket and get an instrument and snap it asunder, you ought to do it." Whether this was addressed to the defendant, or to some one whom the attorney, to illustrate, assumed to be accused, the understanding from the language is the same. It means, when given application to a criminal trial, that when a chain of circumstances is woven around a defendant, and he has the means present with him to break the chain, he should use such means, and the inference is that, if he does not, it is a circumstance against him. We think no juror would listen to such a statement, in a case where a defendant had not been a witness, and fail to understand that it meant that, if the defendant could deny the facts proven against him, he would take the witness stand and do it. In the first part of the statement reference is made to evidence to be obtained from others, while in the last part reference is made to what the accused has, as, if he has nothing more to do than take an instrument from his pocket and snap the chain asunder, he should do it. The state of Missouri has a