1 Utah 108 | Utah | 1873
delivered the Opinion of the Court.
Tn September last, the Appellant, (Douglass,) was by Jeter Clinton, Justice of the Peace for Salt Lake City, fined one hundred dollars for the violation of an ordinance of said city, which prohibits the keeping of any house for gaming purposes. Failing to pay the fine, he was committed to prison, and thereupon sued out his writ of habeas corpus before the District Court of the Third Judicial District of the Territory. Having heard the case, the court remanded him to prison, from which judgment of the court in thus remanding him the Appellant comes by appeal to this court,
Two grounds of error are assigned for the reversal of the judgment of the District Court. The first ground is
But we are told, as a second ground of error, that the Police Court has no jurisdiction, “ that the ordinance under which the sentence was inflicted is illegal and void.” The power to create and punish this offence is embraced among the powers granted to Salt Lake City by its Charter, but, although this is true, it is claimed that the offence is provided against in the general statutes of the Territory, and that therefore the power of the city to punish the same by ordinance is nugatory and void. We are aware that some authors, supported by decisions, have sought to establish such a doctrine, but we cannot go that far. The same authority which gave the Charter created the general law. It cannot be that the Legislature intended to repeal the general statute by giving the corporation a like power in this respect. The city might fail to enforce' the ■ power given it, in which case there would be no power within the corporate limits for resort to punish such offences. It was evidently intended that both laws should stand together, if such be
We are cited to the law of Congress which prohibits any Territorial legislative authority from granting any private charter or special privilege. (14 Stat. at Large,
It is further contended that the right in the legislative authority to grant such powers to a municipal corporation, pre-supposes the right to empower the city government to punish by ordinance every variety of crime, even the greatest, thus by a summary proceeding depriving a citizen of his rights upon a mere information, without the intervention of a Grand Jury and a petit jury. We cannot perceive how this would be the case provided we keep in view the rights and privileges which we enjoy under the Common Law. No person could, at Common Law, be convicted of a crime except upon the presentment or indictment of a Grand Jury, and upon the verdict of a jury of his peers. This was not the case, however, where the offence charged was a misdemeanor. Ths word crimes did not embrace misdemeanors, and a party upon a charge of misdemeanor could be proceeded against by simple information — withoirt a Grand Jury— and though, in some cases, they might be proceeded upon by indictment, yet this was not a requisite. Pelonieb could not be proceeded on by information, but required both a Grand and Petit Jury. The case under consider?-ation is not at Common Law a crime — a felony — but -would be classed as a misdemeanor. We cannot therefore say that the legislative authority to give the city power to punish in such cases did not exist. We believe
Note.—Upon subjects of similar character, see Ex parte Shrader, 33 Cal. 279; Johnson v. Simonton, 43 Cal. 242; Smith v. Keating, 38 Cal. 702; also, 29 Cal. 272; 18 Cal. 678.
Note 2.—No point was made in the Supreme Court as to the right of appeal from the judgment of the District Court in habeas corpus cases.