26 F. Cas. 346 | U.S. Circuit Court for the District of District of Columbia | 1829
delivered the opinion of the Court (nem. con.) as follows:
This is an indictment at common law for a nuisance in keeping a common gambling house. Verdict, guilty; subject to the opinion of the Court upon the question whether a conviction before a justice of the peace, under a by-law of the corporation, (Burch’s Dig. 95, 16th August, 1809,) for keeping a faro-table, and judgment for the penalty of twenty dollars per diem, is a bar to this prosecution; it being admitted that the conviction and judgment before the justice of the peace cover the whole time for which he is charged in the present indictment for keeping the disorderly house.
The indictment charges that the defendant, “on the 15th of. January, 1829, and on divers days and times between that day and the day of taking this inquisition, with force and arms, unlawfully did keep and. maintain a certain common gaming house; and in the said common gaming house, for hire and gain, on the said 15th day of January, in the year aforesaid, and on the said other times and days, then and there unlawfully and wilfully did cause and procure divers idle and evil-disposed persons to frequent and come, to play together at a certain unlawful game called faro; and in the said common gaming house, on the said 15th day of January in the year aforesaid, and on the said other days and times, there unlawfully and wilfully did permit and suffer the said idle and evil disposed persons to be and remain playing and gaming at the said unlawful game called fqro, for divers large and excessive sums of money, to the great damage and common nuisance of the good citizens of the United States, to the-evil example of all others in like cases offending, against the peace and government of the United States.”
The by-law of the corporation of 16th August, 1809, entitled, “ An act to suppress gaming,” enacts,
§ 2. “ That if any person shall permit any faro,” &c., to be ‘ set up, kept, or played ’ in his house,” &c., “ he shall incur the penalty of twenty dollars for every day or less time that the same is so £ kept up and maintained,’ to be recovered,” &c., (as in the 1st section.)
There is no statement of the facts of this case, but I understand that the defendant has been sentenced by the justice of the peace to pay a fine of twenty dollars per diem for keeping and maintaining a faro-table in the house of Dr. Smethers, for the whole time proved upon the present indictment.
It is contended, by the counsel of the defendant, that the common law as to the nuisance of a common gaming house is repealed, in regard to the city of Washington, by the powers given to the corporation, “to prevent and remove nuisances;” “to restrain and prohibit ” “ all kinds of gaming; ” “ to cause ” “ all such as keep public gaming tables or gaming houses to give security for their good behavior,” “ and to indemnify the city against any charge for their support;” “to pass all laws which, shall be deemed necessary and proper for carrying into execution the powers vested by that act, in the said corporation or its officers; ” and “ to impose and appropriate fines, penalties, and forfeitures for the breach of their laws or ordinances.” It is supposed that these provisions cover the whole common-law oifence of nuisance arising from the keeping of a public gaming house ; and transfer to the corporation of Washington the whole legislative jurisdiction over the subject; and that as the corporation has legislated in part upon the matter, the common-law offence is abrogated; inasmuch as by legislating in part the corporation has signified its will that every thing should be permitted which they have not expressly forbidden. Such I understand to be the argument, and it seems to be the only argument which can bear an appearance of plausibility; for the by-law does not cover the whole ground of the common-law offence. It only punishes the setting up or keeping a faro-table, &c., or permitting it to be set up, kept, or played. But the common-law offence does not consist in the setting up or keeping a faro-table or other device for
The. by-law punishes the act of setting up the table — the common law punishes the act of permitting it to be used as a common gaming house. It is this and this only that makes it a common nuisance, and, as such, punishable by fine and imprisonment at common law. The offence created' by the by-law, therefore, is not a complete substitute for the common-law offence. It cannot be supposed that Congress, by giving the corporation of Washington power “ to restrain and prohibit all kinds of gaming,” intended to abrogate the common-law offence before the corporation should have actually legislated upon the subject and provided a substitute. No motive for such an intention can be imagined. It is not in the power of Congress to delegate to the corporation an exclusive right of legislation upon this subject. Its by-laws must be subject to the control of Congress at all times ; and it would be natural to conclude that the grant of a vicarious power to legislate upon a subject, would not, until that power is executed, be a repeal of all preexistent laws upon that subject, any more than it would if the whole power of legislation had been still retained in the hands of Congress. And even, admitting that Congress could delegate the whole power of legislation, and should delegate it, yet such delegation would not, of itself, repeal all the existing laws. They would still remain in force until altered or repealed by the delegated authority. If, therefore, we admit that the power given to the corporation, “ to prevent and remove nuisances,” authorizes the corporation to define and punish the offence of keeping and maintaining a common gaming house in such a manner as to be a common nuisance, as defined by the common law; yet the corporation not having done so, the common law remains unaltered ; and the fact that the defendant has been punished under the by-law, for setting up and keeping a faro-table, is no bar to his conviction of the offence of keeping and maintaining a common gaming house in such a manner as to be a common nuisance.
In the case of Wells, at June term, 1812, the indictment was for keeping a faro-table, in a house occupied by a tavern-keeper, contrary to the Act of Maryland, 1797, c. 110. The defence was that he, as keeper of the faro-table, had been fined twenty dollars under the by-law of Georgetown of 7th March, 1806, for “ an offence of gaming ” at the table. It was there also urged that the act of Congress to amend the charter of Georgetown, (passed March 3, 1805,) giving to the corporation the power “ to restrain or prohibit gambling,” to impose “ and appropriate fines, penal
But the court in that case was of opinion that the act of Maryland was not repealed; and ordered judgment to be entered for the penalty of £50.
The offence under the act of Maryland was the setting up and maintaining a faro table, or other device for the purpose of gaming for money, in a dwelling-house occupied by a tavern-keeper. The offence under the by-law was the setting up, keeping, or maintaining a public gaming house, or public gaming table, or other device for common gaming; and the by-law gave a penalty of twenty dollars for every offence of gaming at the table, to be paid by the keeper, whether it were or were not kept in a house occupied by a tavern keeper.
That case was stronger in favor of the defendant than this ; for there the by-law covered the whole offence described in the act of Maryland. The court, however, thought that the penalty of the by-law was cumulative, and intended to be in addition to that imposed by the Maryland law.
The case of licenses for taverns, retailers of spirituous liquors, and billiard tables, is different from this, which is an offence at common law. There the offence was a mere malum prohibitum; a penalty for not paying a tax and taking a license from a particular authority. When the tax was given to the corporation, as well as the means to enforce its payment, the whole subject was transferred to the corporation as a matter of revenue.
But a common nuisance is a malum in se, or it would not be a common-law offence; and a delegation of power to legislate upon the subject cannot be construed into an intention to repeal the common law; for even a providing a new punishment for a common-law offence has never been held to prevent a conviction upon an indictment for the offence at common law, without express words to that effect; much less would that effect be produced by a delegation of power to legislate upon the subject.
We are, therefore, of opinion, that the offence is still indictable at common law, and that judgment should be rendered for the United States upon the verdict.
Judgment for the United States, for a fine of $200. See United States v. Ismenard and Smith, December, 1803, (1 Cranch, C. C. 150); Docker’s case, December, 1805; McLarn’s case,
