65 Tenn. 567 | Tenn. | 1873
delivered the opinion of the court.
Greenwood and others were indicted in the Criminal Court of Shelby county for keeping a gaming house. The matter of defense set up by the defendant was a former conviction, which was presented in the form of an agreement between the Attorney General and the defendant, and is as follows:
1. That if defendant kept a gaming house, it was within the corporate limits of the city.
2. That the said defendant has been regularly
The parties add further, that all formalities of pleading are expressly waived, and the question desired to be passed upon by the court is, whether the said defendant, after being fined, convicted and punished by the municipal government, or its proper officials, for the said offense, can be held by the State to answer for the identical offense.
The question presented for our decision is, whether^ where a party has been convicted and punished for keeping a gaming house by the municipal authorities of a town or city, this fact is a bar to a prosecution for the same offense by the State.
We may remark, that art. 5 of Amendments to the Constitution of the United States, providing, among other things, that “no person shall be subject for the same offense to be twice put in jeopardy of life or limb/’ has no application to the States, being only a limitation on the Federal Government. 7 Peters, 243; 7 Wall., 326, and cases there cited. Our own Constitution, art. 1, sec. 10, is, that “no person shall for the same offense be twice put in jeopardy of life and limb,” the language being identical with that of the Constitution of the United States.
Whether this clause, or the same provision in the Constitution of the United States, applies to offenses the punishment of which does not extend to “life or limb,” or to crimes as distinguished from misdemean
In endeavoring to arrive at a proper conclusion on this question, we must remember, according to the idea of Judge Cooley in the ease of The People v. Hurlburt, 24 Mich. R., 96, that the Constitution of our State assumes the existence of counties and municipal corporations, the latter having and exercising such powers of local self-government under grants in charters from the Legislature as might be necessary
As k matter of history, we know that the organization of municipal corporations was one of the most efficient agencies by which freedom and government by law, rather than strong hand, was introduced and fostered in Europe in the middle ages. Robinson, in his view of the progress of society in Europe, Introduction to History of Charles V., p. 19, in referring to the institutions which had tended to secure the liberty and independence of the people, says: “The form
In this form we received this institution, and our
.With this history of these institutions, and in view of the necessity of having such bodies, from the organization of the government down to the present time, acts of incorporation have been granted to our cities and towns, granting them such powers as were deemed proper for the attainment of the ends of their creation. Among the powers so granted, are: “To pass such by-laws and ordinances for the removal of nuisances, to define by corporation laws misdemeanors, when committed with.in their limits, and make such acts offenses against such corporation laws, punished by pecuniary fines and penalties, which have been collected on a warrant issued by the mayor, recorder or other judicial officer of the corporation, in form of a' debt, but in fact for the recovery of a penalty, forfeiture, or a fine, the name, in the language of the court in 1 Head., 74, being immaterial.” In such, cases, the fine or forfeiture imposed by the corporation ordinances is recovered, on proof that the offense has been committed, which is prohibited by the statute. See the above case. '
The case referred to was a warrant for recovery of
Sec. 35 of Amended Charter of the City of Memphis, provides, among other things, “the general council shall have power to establish a workhouse in the county of Shelby, to define by law or ordinance misdemeanors, and when committed within the city limits, to punish the same by pecuniary fines and penalties, and by imprisonment and labor within or without a workhouse in default of payment of said fine, to regulate and suppress all disorderly houses and houses of ill-fame, to restrain, prohibit, and punish gaming.
It is clear, under this charter, the city had the power to punish or fine the parties in these cases, by way of restraining, prohibiting, or punishing gaming.
It has been held in Nolin v. Mayor of Franklin, 4 Yerg., 163, that exhibiting a stud-horse in the streets of a town is a nuisance; and keeping hogs, alehouses, gaming-houses, brothels, etc.; and in State v. Shelbyville, 4 Sneed, 176, that a corporation empowered by its charter to remove nuisances, was indictable for failure to rer»ove a slaughter-house for hogs within its limits, as being injurious to the health of the inhabitants.
From the principle of these cases, and from the general principles of the law growing out of the necessities of such incorporated municipalities, it is clear that such offenses as are referred to above, and such as are involved in the present cases, are held and
We therefore conclude, that in view of the facts and necessities of the case, it cannot be understood that by the common law of any civilized country of the present day, deriving its jurisprudence from English sources — that the rule forbidding a party to be punished twice for the same offense — was intended to
Mr. Cooley, in his work on Constitutional Limitations, citing a number of cases, lays down the principle “that the same act may constitute an offense both against the State and the municipal corporation, and both may punish it without violation of any constitutional principle,” p. 199. In the case of Mayor of Mobile v. Allaine, 14 Ala., 400, cited in a note, we think a correct view of the question is stated: “The object of the power conferred by the charter, say the court, and the purposes of the ordinance itself, was not to punish for an offense against the criminal justice of the country, but to provide a mere police regulation for the enforcement of good order and quiet
In support of the view we have indicated, that the common law did not intend that punishment by a corporate authority should prevent the action 'of the State, we find the principle thus stated in a note to p. 311 of Dillon on Municipal Corporations: “In England, á by-law imposing a penalty on a corporator for refusing to serve in a corporate office is valid, notwithstanding the party may be indicted for the same refusal, as he may be in all cases of municipal offices necessary or proper to carry on the government of the corporation;” for which he cites Grant on Corporations, p. 82. In the same note it is said, “ a distinction was early taken, in England, between grave offenses classified as pleas of the crown, and triable upon an issue of not guilty between the King and the defendant, and lesser or petty offenses punishable by fine or amerciament upon presentment in court, sect, or inferior jurisdictions.” For this is cited Hale’s Pleas of the Crown, vol. 1, E. 11; vol. 2, chap. 19. We think this presents the true line of distinction, and is the sound' rule to be applied in the cases be
We do not feel called upon to define what may be included in the general idea of corporation offenses, for like fraud, it would be very difficult to give a definition that would include all the cases that may arise in our present state of society, and still more difficult to give one that would meet all the aspects of future social life that may grow up in our cities, calculated to debauch and deprave the morals of such communities, or give offense to public decency and propriety. We leave the cases to be provided for as they may arise, and the validity of ordinances passed to meet them, to be tested, when the cases are presented, by the general rules of law already established for the purpose, such as that the ordinance must not be oppressive, nor in violation of the general law of the land, and other well-known rules on this subject.
We need not refer to the authorities presented by counsel on this question. Suffice it to say, that in some of them a different conclusion has been reached from what we have arrived at, but we think the large preponderance is in favor of the rule we have laid down in this case, though not for the precise same reasons herein given.
The result is, that the judgment of the court below will be affirmed.