Lead Opinion
The defendant was indicted and tried in the district court of Bamsey county, at the October term, 1881, for the offence of keeping a house of ill-fame, resorted to for the purpose of prostitution. Upon the trial the defendant offered to prove, under a plea of former conviction, that she had been duly convicted of the same offence under an ordinance of the city of St. Paul. The principal question to be considered here is whether the court erred in rejecting this evidence. The same question was considered in State v. Oleson,
It is the judgment of a majority of the court that the law óf the state, which punishes this offence as a felony, has not been superseded by the charter and ordinance of the city, but that the jurisdiction of the state to try the offence remains wholly unaffected and unimpaired; that the state has not surrendered or delegated to the municipality the power to punish it as a crime against the commonwealth; that the general law and the local ordinance must stand together; and also that a conviction under the latter must be adjudged to be no bar to a prosecution under the former. Though this last proposition was not directly decided in State v. Charles,
Municipal corporations are chartered and vested with the powers of a local government, in addition to the powers exercised by the state under the general laws, because the concentration of population and business in a particular locality requires special police regulations, with the power in the local jurisdiction to enforce them in a summary way. Waldo v. Wallace,
It is usual to give the local courts in such cases jurisdiction, also, over inferior offences under the general laws. And as to such offences their proceedings and judgments are on the same footing with those of other state courts of similar jurisdiction. In some instances, also, from the nature of the case and the terms of the charter, it may be
1. An offence against a municipal by-law, proceeding from the same act which also constitutes a felony under the general law, is not for that reason to be considered the same offence, because the two are distinct in their legal character, both as to the nature and quality of the offences and the jurisdictions offended against; and a former conviction, to be a bar, “must be upon a prosecution for the same identical act and crime.” 4 Bl. Com. 336; Wragg v. Penn Township,
These several classes of eases are instructive as serving to illustrate the nature of the municipal jurisdiction, and the legitimate purpose of prosecutions under municipal ordinances. . Offences against them require summary treatment, and no great stress is laid upon the form of the procedure.- Severe penalties would, from the nature of the case, seem to be inappropriate to such summary trials. Nor are they followed by the odious consequences which usually attach to convictions upon the more solemn trials for offences under the general laws. The city ordinance does not have respect to the guilt or moral turpitude of the act constituting the offence considered as a crime, but only to the purposes of a police regulation. Shafer v. Mumma,
One who has been imprisoned in pursuance of a judgment ,in bastardy proceedings, criminal in form, though not in fact, (State v. Becht,
The analogy frequently suggested in the case of an offence against a state and the United States, growing out of the same act, though not complete, yet serves as an illustration of a distinction constantly recognized between offences against municipal and general laws. The learned author of the work on statutory crimes states the result of the authorities and the better doctrine to be ‘“that just as the same act may be an offence against both the United States and a state, and punished by both, so also it may be against a municipal corporation and a state.” Bishop on Stat. Crimes, (2d Ed.) § 24. The constitution assumes and recognizes the existence and necessity of municipal corporations as bodies politic, having such powers of local self-government under grants from the legislature as are ordinarily conferred on them, and such as they have usually possessed and exercised in the past, both in England and this country. City of St. Paul v. Colter,
2. The charter of the city of St. Paul confers no authority on the city council to enact by-laws for the punishment of offences under the general laws of the state, but for municipal purposes only. The jurisdiction originally given to the city justice has been conferred on the municipal court, and, as will appear by section 16 of chapter 3 of the charter, (Sp. Laws 1874, p. 27,) he was given “cognizance and exclusive jurisdiction of all suits, prosecutions, or proceedings for the recovery of any fine, forfeiture, or penalty under any by-law, ordinance, or regulation, * * * and in all cases of offences committed against the same.” All such prosecutions were also directed to be conducted in the name of the city. These provisions were in existence when the decision in the case of State v. Charles was made, in which it was expressly decided that the jurisdiction of the state over the offence in this case was not excluded or superseded by the above or other provisions of the charter. The city court is given exclusive jurisdiction of offences against by-laws. This leaves the jurisdiction of the state courts unimpaired as to offences against the laws. The offence triable in each court is necessarily distinct. The charter excludes the idea of concurrent jurisdiction of one and the same of-fence. If it were in fact the same offence, then there would be no escape from the conclusion arrived at by Justice Berry in State v. Oleson, that the ordinance was void, because an offence like the one in question, indictable at common law and under the statute, could not be. tried under the procedure provided for in the police court.
It is clear enough, however, that the legislature, adopting the common understanding and prevalent construction, intended to distinguish the two classes of offences. And, as we have seen, offences, to be the same, must be identical in law as well as in fact. In the grant of powers to the city council (Sp. Laws 1874, c. 1, subc. 4, § 3,) they are authorized to make and enforce by-laws for “the government and good order of the city, for the suppression of vice and intemper-
We have been particular to set forth the material portions of the charter and ordinance, in order that it might appear how carefully and judiciously they were framed to avoid any interference with the jurisdiction of the state over crime. Nothing could be clearer than that the limited punishment provided has reference solely to the enforcement of the authority given by the charter to the council to make “rules and by-laws for the good order of the city and the
Acts of violence constituting felonies under the general law, but classed as disorderly conduct under a city ordinance, it is well settled may be punished under the ordinance, without affecting the subsequent public prosecution. See cases reviewed in Wragg v. Penn Township,
The plea in this Ccáse shows that the defendant had been previously convicted regularly once a month under the city ordinance in question, from the time laid ill the indictment, in May, to October, inclusive. Now, since the municipal court is open every week-day, and it is presumed that the officers in the discharge of their duty will be-vigilant in detecting and promptly reporting and arresting offenders, it is likely that in this class of cases the summary conviction before the magistrate will ordinarily anticipate the action of the grand jury; so that, if the state is barred by the local prosecution, it would work a practical repeal of the statute in its operation in all the localities-where the offence most prevails, taking into account the cities and villages organized under the general laws as well as under special charters. “The result of which is,” as Mr. Bishop remarks, “that the by-law would repeal the general law for the cases in which the prosecution is first had under it.” As also said in Robbins v. People,
All the other questions raised in this case were fully considered and determined in the case of State v. Smith, ante, p. 193, submitted at the same term.
The order should be affirmed.
Upon further examination and reflection, I -think that the view taken by myself in State v. Oleson,
Our constitution vests the law-making power in the legislature. This includes authority to pass laws creating.municipal corporations,— an authority which is also expressly recognized in section 2, article 10. It is an authority to create them with-all customary powers, one of which is the power to adopt by-laws or ordinances to suppress houses of ill-fame, resorted to for purposes of. prostitution, to punish the keepers thereof, to affix penalties to the violation’ of such ordi•nances, and to enforce the same by judicial proceedings in some court of the municipality. . Our constitution also declares that “no person for the same offence shall be put twice in jeopardy of punishment.” Is the violation of a city ordinance, passed (as is that involved in this case) under the customary powers of a municipal corporation, an offence within the meaning of this constitutional declaration ? This seems to me to be largely, if not altogether, a question of definition— a question of what is meant by the word “offence,” (in the connection in which it is used in the constitution,) according to its general acceptation. As thus defined by common usage, I do not think the word “offence” includes violations of city ordinances adopted under the customary powers mentioned. There is probably no state, in the Union, the constitution of which does not contain a declaration substantially like that above quoted from our own, and I think there is not at this time one which distinctly holds that the word offence, as employed in these declarations, includes these violations of city ordinances, while many of them, if not all, in which the question has been determined, hold the contrary. This is in accordance- with what has always been the general and almost unanimous understanding in this
Concurrence Opinion
I fully concur in the conclusions arrived at, in this case, by my brother Vanderburgh, and substantially with all the reasons and arguments advanced by him in their support. I do not think that a prosecution for a violation of an ordinance of a municipal corporation is a prosecution for a crime or offence, within the meaning of the constitutional prohibition against putting a party twice in jeopardy of punishment for the same offence, although the act constituting the violation of the ordinance may be a crime under the statutes of the state. In England almost from time immemorial, and in this country from its earliest history, municipal corporations have been granted the power to forbid certain acts of this character by ordinance or by-law, and to impose a penalty for its violation. The guaranty against being put twice in jeopardy for the same offence has been an universal principle of the common law of England for centuries. Yet never in England, that I am aware of, and rarely in this country, has the validity of such ordinances been questioned, or the doctrine advanced that a prosecution for a violation of such an ordinance was a bar to an indictment for the same act as an offence against the state. So general and long-continued has a contrary view been entertained and acted upon by both the legislative and judicial branches of government, that, as suggested by my brother Berry, it has become a definition of the term “offence,” as used in the constitution, and has established a construction of the constitutional guaranty referred to so firmly that it ought not now to be seriously questioned. As suggested by my brother Vanderburgh, in England, and some of the older states of the Union, municipal by-laws were usually enforced by a civil action to recover a penalty for their violation.
There are other considerations, founded on public policy and public necessity, which, although not controlling, are entitled to weight. The principle involved is far-reaching. There are many things, besides keeping houses of ill-fame, which municipal corporations are authorized to suppress by ordinance, which are crimes under the general laws of the state. Now, if, on the one hand, it be held that all such ordinances are void as repugnant to the general statutes, and that a municipal corporation cannot prohibit by ordinance any act which is a crime under such statutes, the corporations would be shorn of many police powers which they have always been supposed to possess, and which are absolutely necessary to the preservation of good order within their limits. On the other hand, if it bq held that a so-called prosecution under a city or village ordinance is a bar to a prosecution for the same act as a crime under the general criminal laws of the state, it would virtually amount to a repeal pro tanto of these general laws in every city, town, and village in the state. Such a sweeping abdication on the part of the state of her authority to punish crime, in favor of the uncertain and variable ordinances of every city and village, would be too alarming in its consequences to be seriously entertained. It would result in the anomaly of the s.ame crime being liable to be punished in as m?my various ways as there are cities- and villages in the state, and of the same crimes, when committed within the limits of a city or village, being punishable only by a petty fine, which, if committed in the rural districts of the state, would be punishable by imprisonment in the state prison.
But these and other weightier reasons have been so ably and exhaustively advanced by my brother Vanderburgh that nothing was necessary to be added except to express my concurrence.
Dissenting Opinion
dissenting. I dissent upon the grounds stated by me in the case of State v. Oleson,
Dissenting Opinion
dissenting. I dissent from the opinion of the court. I, think the ordinance is valid, having the force of, and being in reality, a law of the state, enacted pursuant to authority conferred by the legislature. - Both in the creating of the ordinance, and in the prosecution for its violation, the sovereign power of the state wras exercised, and the prosecution and conviction constituted a defence to a subsequent indictment for the same act. It is not important‘that the legislature did not intend that such should be the result of an enforcement of the ordinance. The law having been created, and executed in the conviction and punishment of the offender, the constitution forbids a second prosecution. “No person, for the same offence, shall be put twice in jeopardy of punishment.”
Note. State v. Nellie Otis was argued aud submitted bj tbe same counsel, and at tlio same time with the foregoing case, and was disposed of in the same way, and the order denying a new trial was affirmed.